Wednesday, March 30, 2011

Criminal Law 2000 - Q5

Tuan M had a fight with his wife Puan K. To calm the situation, Tuan M decided to leave the house and live separately temporarily. Puan K who was distraught did not want to let Tuan M leave just like that. She ran out chasing Tuan M who was turning on the car ignition. Tuan M who did not hear his wife’s screams immediately reversed his care without looking back. After that he sped off. Unfortunately Puan K who was chasing Tuan M had fell and was hit by Tuan M’s car. This was not realized by Tuan M.

Discuss whether Tuan M may be charged for the offence of murder or of other offences. Consider also the causation issue if he is charged under section 304A.

The question does not indicate death of Puan K. Supposing the death took place, can Tuan M be charged for causing death by negligence under s.304A of Penal Code. s.304A says that if Tuan M had caused the death of Puan K by any rash or negligent act not amounting culpable homicide, he shall be punished with imprisonment for a term which may extended to two (2) years, or with fine or both.
Two important elements for causing death be addressed at first instance i.e actus reau and then mens rea. In order to establish actus reus the ‘but for’ test should be applied. The question to be raised is that the death of Puan K would not have happened but for the negligence act of Tuan M. Indeed, Tuan M’s action of reversing the Car without paying any attention to her presence near the car, had caused the death.

Criminal rashness and criminal negligence are two different things (PP v Mahfar Sairan). The accused can be charged for rash and negligence and it would not prejudice the accused (PP v Mahfar Sairan).

Now we shall consider the element of mens rea. In order to establish charges successfully the prosecution has to  prove that Tuan M was rash in his action or negligent. In Empress of India v Idu Beg, the accused struck his wife a blow on her left side with great force. She died from a ruptured spleen. The spleen was slightly enlarged at the time of the blow. The trial judge held that culpable homicide had not been committed as the accused lacked the necessary mens rea for s.299 and convicted him under s.304(A). s. 304A spelled out rash and negligence as proof of mens rea. What is meant by rash under the s.304, is best explained in the case N Nagabushanam, the court held that rash refers to act done by accused, which he is aware or conscious that it may cause injury or damage but he insisted to take the risk. He believes that he has taken sufficient precaution or care. The important factor to be considered is whether the accused was aware. From the scenario above Tuan M was not aware of Puan K’s present behind the car thus this element is negated.

Further, in the above, case also the court defined negligence as an act done by the accused without consciousness or awareness of the consequences. The test for negligence is the reasonable man test which is an objective test under the circumstances. Thus a reasonable man placed under the situation as the accused would have known the probability of injury sustained by Puan K (Adnan v Kamis v PP). Such facts are for the Court to consider. The degree of negligence required is lesser than what is required under English law of manslaughter by negligence (Adnan Bin Khamis v PP).

However, one important issue to be addressed here is the causation. Was the chain of causation broken by the very fact of falling on the ground due to own fault. In Lee Kim Leng, the Court while examining the causation, held that the death must be direct result of the accused’s rash or negligent action. Further, the action must be proximate cause of the death and efficient cause without any intervention from other negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non.  In R v Jordan, the court held that if the injury was caused by other factor, the chain of causation had been broken. There would not have been injury to Puan K if she did not fall. Again this is an objective test for the court to determine but however based on s.304, the death was not a direct result but an intervention of Puan K’s own negligent. Therefore Tuan M will get an unconditional acquittal.

Criminal Law - Q2000

 Puffy (P) and Jenny (J) are a happily married couple. P is a famous rap singer whilst J is a former Miss World. P is someone who is always moody and possessive. He easily gets angry especially when he is commented on his height difference with J who is far taller than him.

One night, P and J went to the ‘Hot Sportz’ night club and drank a large amount of liquor. While leving the night club, Puffy accidentally knocked Schwarzeneger (S), J’s old boyfriend at high school. S still harbours ill feelings against P who had taken his girlfriend. S snapped at P and shouted, “Watch where you’re going Shorty!” J who was staggering behind P also fell when she tripped on S’s foot. P tried to get up to held J. S slapped J’s rear end and said, “Why do you waste our time with this Humpty Dumpty? Anytime I can keep you company” P who tried to contain his anger told S to shut his mouth.

Without any excuse, S pushed P causing him to fall again. With a big laugh S said, “Hey Shorty, go pick on someone your own size!” Hearing these words, P got really angry and took a nearby stool and hurled it towards S. Both of them pounded their fists and each other. Finally P took a beer bottle and hit S head. P then fainted and was unconscious for 6 hours. Meanwhile S was rushed to the hospital but unfortunately he was pronounced dead upon arrival there.

The autopsy showed that S had 400 mg of alcohol in his body while P’s urine test indicated that he had 250 mg of alcohol in his body. The cause of death was severe haemorrhage caused by a fractured skull. According to published statistics, a person having a concentration of 215 mg of alcohol in his body was in certain state of intoxication. According to the medical officer, P was still dazed after regaining consciousness and could not remember what happened the night before. P was unsteady on his feet, unable to walk a straight line and unable to stand steady on one leg.

Discuss the defence(s) that P can plead if he is charged for the offence of murdering S.

Based on the above, as far as the actus reus of the offence is concerned, the only requiring consideration is whether S’ death was caused by P’s action. Apparently P’s conduct was a factual cause of death. That is to say, but for P’s fatal blow on the head, S would not have died. The onus is upon the prosecution to prove that P’s action were legal cause of death. Supposing the prosecution has successfully established charges against P for the murder of S. We shall look at the available defences for P under the circumstances.

P may raise the defence of intoxication. Under s.85(1) of the Penal Code states that exception to s.86, intoxication shall not constitute a defence to any criminal charge. However, s.85(2)(b) states that intoxication shall be defence if the accused did not know what he was doing and further the sub-section (2)(b) provides that the intoxication led to insanity. Unlike the position in England, the defence of intoxication is an absolute defence under the Penal Code which successfully established would render the accused unconditional acquittal, whereas in England it only reduces sentences. P had voluntarily consumed alcohol drinks. At the material time of the offence P had consumed a large amount of alcohol. Does the defence of intoxication available to someone who had voluntarily caused himself intoxicated. It is important to note that the s85(2)(b) does not state whether the intoxication was voluntary or involuntary.  In PP v Teo Heng Chye, the court accepted the defence of intoxication although the accused was under self induced intoxication and determined the case based on whether the accused had any criminal intention to commit the offence. Even though there is no expressive provision in the section to the criminal intension, yet the Court would take into consideration this factor in deciding a case (Seah Eng Joo v PP). P’s urine had more alcohol than the published statistic, thus P had suffered insanity under s.85(2)(b) due to intoxication thus he did not know what he was doing and at the same time he did not realize that his action was wrong. Thus P would successfully raise the defence of insanity which would exclude him from having any criminal intension (Suba Singh v PP).

P also can raise the defence of unsoundness of mind under s.84 of the Penal Code. The ingredient of the defence of insanity laid down in M’Naghten Rules but however in Malaysia it is used in modified form in accordance with the s.84. In order to establish the defence P has to prove that he suffered unsoundness of mind at the material time of the incident and that negated his capacity to know the nature of his conduct and further he did not know what he was doing was wrong and contrary to law.

Because of higher limit of alcohol in P’s urine indicated that he suffered unsoundness of mind at the time of hitting S with bottle. P has to indicate due to his alcohol consumption he had suffered mania, that cause the accused to act on irresistible impulse. Irresistible impulse is not defence under s.84 (Sinnasamy v PP) but however it is recognised if the cause is due to mania which would render the accused incapable of knowing his act is wrong or contrary to law (Jusoh v PP). Such matter (incapable of knowing) must happen or take place naturally, unintentionally, unplanned and beyond the control of the accused (Lakshman v Dagdu). When P was incapable to use his mind as a normal person, he is incapable to understand the nature of his conduct (Ashiruddin Ahmad v E). The conduct here referred to the physical aspect of the act (R v Codere). Whether the unsoundness of mind was permanent or temporary, long or short period, the defence is available.

The last point for P to prove of his knowledge of knowing the act to be wrong or contrary to law. P knows his physical act does not disqualify him from relying on this defence. Further P should be proven to know his act was wrong or contrary to law (Geran Ali v E). The wrong stated here refers to the aspect of morality (Stapleton v T.Q). The Court prefers two different approaches i.e. conjunctive and disconjunctive.

In Ashiruddin Ahmad v K the accused killed his son because he was instructed by someone from heaven, the court held that when he committed the offence he was incapable to know that the act was wrong. Thus based on the above, P can successfully raised defence of insanity and because his temporary insanity he would be granted unqualified acquittal further he is not subject to repeat his conduct thus safe custody is not required.

P also can raise the private defence under s100 of the Penal Code for voluntary causing of death. To successfully raise this defence P has to show the assault has reasonably caused P to apprehend that death will be imminent as a consequence of such assault [s.100(a)]. The fight between P and S had put P on reasonable apprehension of danger that he and his wife might be grievously hurt and that he has no alternative than to injure the attacker (R. v Cummings). The right for private defence commences immediately upon reasonable apprehension of danger and there is now requirement for P to be injured first before exercising this defence (Ya Bin Daud v PP). Even though P had attacked S by hurling a stool at him yet the private defence is still available to him because of the facts and circumstances (PP v Abdul Manap).  

Thus, those are the defences available to P in case of charges for murder of S.

Friday, February 11, 2011

Jurisprudence 2010 Q1

Explain key differences in views on natural law by St Thomas Aquinas, Thomas Hobbes and John Locke.

Natural Law is a law consistent with nature. It has a close link with religion and God since the civilization of mankind. This is because the history of it could be traced back to the classical era such as Greek and Rome, more than 2500 years ago. It has been assumed that human being always live in accordance nature and those who live against the natural, were deemed to be wrong. Thus, early philosophers, such as Plato, Aristotle, Cicero etc have attempted to incorporate the natural law within the live of early human beings.

Be that as it may, one, most notable, jurists of medieval time was none other than St. Thomas Aquinas. He was a Dominican monk and had learned under the guidance of Albertus Magnus. In his most celebrated work, titled Summa Theologica (c 1266), he set out a fully,  systematized approach to law. His approached was that law to be understood as part of God’s plan for mankind – this belief become central to his arguments. Aquinas put forward a fourfold division of law as follows : -

Eternal Law (“lex aeterna”) – This is divine Intellect and Will of God directing all things by a divine reason. God’s rational guidance has the character of law and it is not subject to constraints of time.

Divine Law (“lex divina”) – Is part of Eternal Law governing man and may be known by him through scriptural revelation such as the holy scriptures (Old and new Testament). Divine law comes, through revelation, directly from God. Revelation is the guide for man’s reason. Example of Divine Law is Ten Commandments.

Natural Law (“lex naturalis”) – which man’s participation in the eternal law governing him, as it is known through reason. Because of man’s possession of God-given reason he may enjoy a share in divine reason itself and may derive from it ‘a natural inclination to such actions and ends as are fitting’. Basic principles for human guidance will emerge, such as that ‘good’ is to be done and evil is to be shunned.  The natural law is ‘promulgated’ by the very fact that God has instilled into man’s mind so that it can be known ‘naturally’. According to Aquinas, the God’s divine intellect and will is the main precept. He explained that human beings has several natural instincts for survival known as secondary premises. Aquinas synthesis is in fact, the promulgation of the main precept and the secondary premise to form a conclusion, which is also known as secondary precept or Lex Naturalis which is Natural Law.

Human Law (“lex humana”) – According to Aquinas, the concept of human law established from the relationship he sees between human law and its moral dimensions. Man is guided by simple moral truth – to do good and to avoid evil. Thus, rules underlying human laws must derive from a moral system – a sort of ‘natural law’. Declares Aquinas, human beings must draw from the precepts of the natural law answers to problems which emerge when they live together in society. Where human law conforms to the law of reasons or natural law, it conforms to the law of God. If human law does not follow the natural law, it is not a law but a perversion of law.

Aquinas declares that laws that do not conform with the natural law and moral law, no law at all. He is, of further view, that unjust laws do not bind conscience unless observance of them is required in order to avoid turbulence and disturbance.

Thomas Hobbes on the other hand observed natural law and its application via two notions, i.e.
a.       man in the state of nature; and
b.       man in the state of the contract.

According to Hobbes, man’s life is nasty, short and brutish. Man in the state of nature selfish and motivated by self - interest. In this condition, people live in a climate of fear and are hostile towards each other. Their selfish nature of wanting seize control of the rights or properties of others, had always led to the war. At the same time, however, man desires to live in peace rather than war due to his natural characteristics. According to Hobbes, in order to maintain peace and security, men entered into a pact or agreement among themselves.

This pact / agreement is called Pactum Subjectionis and the parties in the formation of this social contract are members of the society and rulers called Leviathan. Under Pactum Subjectionis, subjects of the society agree to transfer their right to the ruler or Leviathan to govern them and it only binds a particular group of people who have agreed to it.

Further, under Pactum Subjectionis, obedience is a duty. People must be obedience to Leviathan and all its orders and laws. The main task of Leviathan is to maintain peace and security. Leviathan has absolute power and its commands must be complied with. People have the right to refuse to obey if they fail to preserve peace and security. When Leviathan fails to carry out its part of contract, it might be abdicated, defeated or replaced by another.

In terms of legal obedience, Hobbes theory states that individuals have agreed to comply with all the laws that are ordered by the Leviathan. Although it look like the demand for compliance is absolute. Hobbes has laid down the condition that legal obedience would depend on the Leviathan government continuing to perform its responsibility under this contract.

It has been argued as well that Hobbes’s theory is not about giving full power to an authoritarian sovereign. Instead, what he meant is an absolute obedience to a system of government (including the legal system within) in order for the system to work in the interest of peace and stability of the society itself.  Hobbes think that Sovereign is answerable to God. The State as the sole source of law. Acceptance of the Sovereign means acceptance of the law and no such things as ‘unjust law’. Priorities are to maintain the legal order. Legal order means civil society where rule of law prevails. Order is preferable to chaos.

Locke has a slightly different view from Hobbes though the fundamental idea of social contract is a model from Hobbes idea. Locke’s synthesis of natural law was revealed in his writings known as  Two Treaties of Government (1689) which is regarded important when come to the relation between government-citizen. According to Locke, man in state of nature enjoys complete freedom and equality. Man entitles to life, personal freedom and property. Thus, fear of non protection, they felt the need for rules and modes of adjudication to protect their rights. The key different was the introduction of pactum unionis. Locke proposed man entered in pact or agreement to form sovereign body. They form this agreement with each other or pactum unions to protect their natural rights. This then followed by a pactum subejectionis – an agreement to subject themselves to a sovereign entity. Locke rejected the concept of a ruler of sovereign with an absolute power because he felt that the citizen continued to enjoy inviolable natural rights. The function of ruler is to protect the individual. As long as the ruler faithful to this pledge, the ruler cannot be denied his power but when he fails to do it, his law have no validity and the he may be abdicated. So Locke is essentially a great opponent of Hobbes. Hobbes supports authority whereas Locke supports liberty. He rejects the concept of ruler with absolute powers proclaimed by Hobbes because human being have natural rights to life , freedom and property which cannot be taken away by any ruler. Locke’s theory provides that citizen can change the ruler and this is the beginning of democracy and clearly Locke emphasizes natural law compared to human law.

Notes On Family Law (Marriage)


A. General Requirement of Marriage

1.      Parties to a marriage should freely consented [s.22(6)] and must be single and should not be in the prohibited relationship (s.11) but if they are both Hindu, their relationship stands as uncle and niece can still get married [s.11(1)].

2.      Section 10, LRA, provides age for marriage for a male person is 18 and a female is 16.

3.      Section 21(1), LRA provides that those between 18 to 21 years old should get parent/s or guardian’s written consent.

4.      Section 11 of the Contract Act 1950, states only a person of age of majority can enter into contract.

5.      Section 4 of the Majority Age Act 1971, provides that the age of majority as 18 in Malaysia.

B. Under Age Person

1.      Further s12(1) provides that those between 18 to 21 years old, should get a written consent for their parent/s or appropriate guardian.

2.      If the consent has been withheld unreasonably, the party to marriage can petition the High Court under s.12(2) for consent, the court has the power to grant consent.

3.      Girls who are below the age of 18 should get a license for marriage from Chief Minister under s21(2).

4.      However, the age limit does not apply and the issue consent and license is not applicable if the minor is a divorcee.

C. Place
of Marriage

1.        Solemnization of marriage in such a place other than in the office of Registrar can be done as provided by s22(1)(b) save that the a valid license had been issued.

Thursday, February 3, 2011

International Law 2005 Q3

Explain the view of the relationship between international law and domestic law which Malaysia supports, with the aid of decided cases. (25 marks).

Today as the international law rapidly grows, many of its law now gradually being accepted in the domestic law. Such reception can be by way of direct adoption or by some other method of localizing the said law. However, there are two approaches in reception of international law that are currently applied by all nations. They are known as doctrine of incorporation and doctrine of transformation.

Doctrine of incorporation is an automatic reception of the international law into domestic law without the formal needs for official legislation to sanction it and give effect to it. This ‘automatic’ adoption is said to operate unless there is some clear provisions in the domestic law, such as a statute or judicial decision, which preclude the use of the international law. The reason for this view is because the international law becomes part of domestic law without the need for express adoption by the courts or legislature. This doctrine widely being implemented in UK.

On the other hand, doctrine of transformation works entirely opposite to the doctrine of incorporation, that is to say, any international law must be mindfully/consciously be transformed through legislation before the said international law could be implemented locally.

Some scholars are of the views that the doctrines of incorporation and transformation correspond with ‘monism’ and ‘dualism’ theories respectively. Monism theory advances that international law and domestic  law are part of the same legal order and this is reflected by the fact that international law is automatically incorporated into domestic law. Under dualism, international law and municipal law are two separate systems of law operating in its own area of competence and transformation is needed to implement domestically.

Be that as it may, during English occupation, the application of international law by the local courts in Malaysia was the same as the British courts, i.e. doctrine of transformation in respect of international treaties and doctrine of incorporation with certain limitations in respect of customary international law.

However, the attitude of judicial application of international law after independence has somewhat changed slightly. As far as the international treaties are concerned the Malaysia Court will implement it as part of the domestic law only if they have been transformed into domestic law by means of official legislation and the application of customary international law, sadly, is not so consistent and no clear-cut policy of judicial practice.

Under Article 160 of the Federal Constitution, in Malaysia definition of law encompass written law, common law etc. insofar as it is not inconsistent with the Federal Constitution or any part thereof. According to section 3 (1) of the Civil Law Act, English common law is to be applied by the Malaysian courts in the absence of any written law (i.e. statutes) and provided that it is not contrary to public policy of Malaysia. In England, Customary international law is deemed to be part of English common law in so far as it is not in conflict with a statute or a judicial decision of final authority. Thus, to what extend the customary international law which is applied in UK as common law is applicable Malaysia? Beside the cut off date in has set in the Civil  Law Act 1956. Section 3, of the said act, confers that the common law in UK is applicable in Malaysia, to the extent that it is not contrary to the Malaysian statutes and public policy of Malaysia.

Premised on the above, in PP v Oie Hee Koi, the accused were captured during the Indonesian confrontation campaign against Malaysia. The Federal Court allowed the appeals of the accused on the ground that they were prisoners of war and entitled to the protection of the 1949 Geneva Conventions. On appeal, the Privy Council held that they were not entitled to be treated as prisoners of war. Although the main issue was concerned with the interpretation of the Geneva Conventions of 1949, the Privy Council stated that the position of the accused was covered prima facie by customary international law.

In Malaysia, Parliament may make law in respect to any of the matter enumerated in the Federal List or the concurrent list as provided in
Article 74(1) of Federal Constitution, which include matters of external affairs such as treaties, agreement, conventions etc. and the implementation of the same. The executive power is vested upon the Yang Di Pertuan Agong (YDA) or by the cabinet(Article 39). This proposition is affirm in the case Gov. of the State of Kelantan v Fed. Gov. M’sia & Tuanku Abdul Rahman. In this case, Kelantan challenged the constitutionality of the Malaysia Agreement, which was an international treaty signed by the United Kingdom, the Federation of Malaya, Singapore, Sabah and Sarawak. The prime argument put forward by the Kelantan Government was that the consent of the individual States of the Federation of Malaya should have been obtained before the arrangements for Malaysia can be lawfully implemented. Referring to Articles 39 and 80 (1) of the Federal Constitution, the Court affirms the constitutionality of the Malaysia Agreement and the executive authority of cabinet in concluding a treaty.

In Public Prosecutor v Orhan Olmez, the Secretary to the Embassy gave evidence in court and further agreed to attend court to give further evidence in his capacity as consul as to the authentication of legal documents. This was confirmed by letter. However, later the consul refused to attend send another diplomatic note to that effect. The respondent applied to the court to issue a warrant of arrest to compel the attendance. In addressing the legal issue of waiver of immunities, Supreme Court of Malaysia relying to Article 32 of the Vienna Convention on the Diplomatic Relations 1961, which has been transformed into Malaysian law by means of the Diplomatic Privileges (Vienna Convention) Act 1966, the Court held that a waiver under the Vienna Convention must always be express.

Again in MBF Capital Bhd. & Anor v Dato’ Param Cumaraswamy, the High Court of Malaya applied the International Organisations (Privileges and Immunities) Act 1992 in a case involving immunity of a Special Rapporteur of the UN Human Rights Commission.

Be that as it may, in PP v Narogne Sookpavit, the respondents were Thai fishermen who were arrested and charged under Fisheries Act (s.11(1) of Fisheries Act, 1963) for illegal fishing in Malaysian sea. The trial court acquitted all the accused and the prosecutor appealed. The respondent argument was ‘right of innocent passage’. The Court held that ‘the right of innocent passage’ may be a customary international law but since Parliament did not enact law to give effect to it and in the absence of such statute international law could not be implemented in Malaysia as part of domestic law.

Thus, based on the above, we can conclude that Malaysia only supports the doctrine of transformation which allows the Parliament to approve, modify (if necessary) and give effect to the international law to operate domestically.

International Law 2008 Q1

 The traditional idea that States are the only subjects of international law seeks revision in the light of contemporary developments international law;

Discuss with specific reference to the international legal personality of either :

(a)     International organization;
(b)    Individuals

Personality is a relative concept where it donates to the ability to act within the system of international law as distinct from national law. It’s primary concerns, are rights and duties of the international legal person under the international law. The main capacity of an international legal person is that the ability to make claims before international tribunals in order to vindicate rights that provided under international law. The international legal person also to be subject to obligations imposed by international law and has the power to make valid international agreements (treaties) binding under the international law. Last but not least such international legal person can either to enjoy some or all immunities provided under the international law, from the jurisdiction of national courts in states.

Thus, when one talk about international legal person being the subjects of international law, the reference is, none other than to the states themselves, as they are the major subjects of international law.  The states have ability to make claims before the international tribunals and before the International Court of Justice. States also subject to the obligation imposed by the international law such as the Human Rights Declarations and crimes against slavery etc. The traditional ideas of subjects to international law is none other than the states it selves as mentioned by Professor Oppenheim. The treaties making capacity of a state is undeniable. States can make treaties binding under the international law, between themselves in regards to trades, economic and extradition of criminals which are within their capacities. When talk about immunities, states have full immunities against the jurisdiction of the national court of other states.

Be that as it may, today in the light of contemporary developments of international law, not only states but other organizations and individuals have emerged due to political climate or economic factors and have respectfully gained recognition and endorsement as international legal personality based on their rights and obligations as much as states in the international plane. Historically and traditionally, there has been little scope for the international personality of individuals, and states have guarded their right to deal with their own nationals with much envy, while honouring the rights of other states to deal with their subjects likewise.

However, second World War had changed the traditional concept that only the states are the only subject of international law. The reason behind it is because of crimes against humanity during the WWII and there was a need to give greater importance to human rights. Hence, individuals accepted as subject of international law. Individuals also regarded as having international personality because international law began to impose personal obligations on individuals separately from those attaching to the state which they represented. Article 1 of UN Charter “to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggressions. The judgment of Nuremberg International Military Tribunal 1946 provides “crimes against international law are committed by men (individuals), not by entities and only by punishing individuals who commits such crimes can the provisions of international law be enforced.

Who are individuals? Individuals are subject of states. In the Nottebohm Case, the ICJ held in order to determine nationality of a person there must be genuine link between the state and the person. Article 1 of Hague Convention on the Conflict of Nationalities Laws provides that in international law “it is for each state to determine under their own law who their nationals are or who are the subjects of the state. 

The clearest example of the personality of individuals in modern international law is the responsibility that each individual bears for war crimes, crimes against the peace and crimes against humanity (genocide etc.). These are matters for which the individuals responsible personally under international law, irrespective of the laws of his own may be tried according to the law by an international court.  The most established of these is piracy. A pirate is hostis humani generis (an enemy of all mankind) and he may be arrested and tried by any state regardless of his nationality. Under international law piracy is a crime of universal jurisdiction.

The establishment of a permanent international tribunal having the competence to exercise a general jurisdiction over individuals as subjects of international law in respect of serious violation of international criminal law and the exercise of criminal jurisdiction of the International Criminal Court since its establishment in 2002 over individuals of the nationality of state parties to the Statute is a major advance in terms of deterring and punishing individuals charged with the most grievous violations of human rights.

In additional to the imposition of duties and responsibilities on individuals, international law also grants personality in the form of rights. The most obvious is the ever expending law of human rights. Under Article 55 of UN Charter provides inter alia humans rights and fundamental freedoms as well as higher standard of leaving with progress in economic and social developments of individuals and Articles 56 and 62 impose obligations on member states to ensure the achievement of  the purpose set forth in article 55. Indeed, perhaps it is not going too far to suggest that the vitality of human rights provisions international law and the status of some rights as rules of jus cogens have generated an objective personality for individuals in these matters that states cannot derogate from.

Individuals have no excess to International Court or tribunals. What is said is that the individual cannot directly bring and action to  the ICJ or tribunal on his personal capacity however he/she may convince his/her state to bring an action against any other subject of international law. Even if the individual wish to bring an action, say, for mistreatment or torture against a state, it could only bring the said action to ICJ through its own state ie only the state of the individual concerned could bring the action on its behalf. In the case of Mavrommatis Palestine Concession Case, the where here that it is an elementary principle of international law that a state is entitle to protect its subject when injured by acts contrary to international law committed by another state.

Further, generally, individual does not enjoy immunities in international law unlike the states from other national jurisdiction but one can enjoy immunities under special circumstances whereby individuals that represent states as diplomats and those working in diplomatic office according to their rank. Thus, in this sense, one can say the individual does not have full capacity like a state. Last but not least, the individual also does not have treaty making capacities.

Thus, in this modern contemporary development of international law, the traditional view that the states are the only subject of international law can no longer hold waters. Many other organization and individuals are considered as subjects of international law because of their nature of rights and duties and also obligations under the said law which fulfills the criteria under the incidia of personality.

Wednesday, February 2, 2011

International Law 2005 Q1

 Elaborate on how a rule of customary international law is formed and the nature of its principal elements, by reference to decided cases.

Sources of international law consists of primary sources (formal sources) and secondary sources (material sources). Primary sources are sources that create the rules of international law which could emerge from international treaties, customary international and general principles of law recognized by the civilized nations. Secondary sources are judicial decision, writings of jurists and resolution of United Nations General Assembly and reports made by international law commission.

Customary International Law is a law that evolved through the practice or customs of states. Generally speaking customary international law is the foundation stone of modern law of nations. Even though custom is the major source of international law and it is now gradually being replaced by treaties yet a great deal of the law governing the states today, still comes from this source. Thus, one can strongly affirm that international law has been rooted in customary law.

Article 38(1)(b) of the Statute of International Court (ICJ) expressly provided that international custom as evidence of a general practice accepted as law. The provision was vividly elucidated in the case of North Continental Shelf where it was held that the state practice must be general, consistent with such rule and should amount to a settle practice in addition supported by opinion juris sive necessitatus. Thus, in order to form a customary international law or for any custom to be crystallized into a customary law, the Court will have to evaluate a state practice and the opinion juris. These two are sometimes referred as objective and subjective elements of customary law.

What is meant by state practice? State practice is a material fact that refer to what the state actually do. It is not limited to actual activity facts and omissions of a state but a practice which are embodied in law of official legislation of the state, judicial decision and official manual. Statement made by government officials and the spokesman to the international conference or press in respect of situations or disputes also may indicate of state practice. Documentary records of ‘practice’ such as the Repertory of Practice of UN Organs is also of considerable practical importance. However, different type of activity carries different type of weight. Even local custom also may form a customary law if the practice is developed between few states and they recognize it as binding upon them (Asylum Case – Columbia v Peru). Be that as it may, it is pertinent to note that a contrary state practice will be presumed to be action in breach of the rule (Nicaragua v USA).

In order to establish state practice one must look at the repetition, duration and consistency of the said practice.

How many examples of state practice or repetition are required? In the case of North Sea Continental, the Court said that it cannot mathematically or uniformly be decided. Each fact requires to be evaluated relatively according to the different occasions and circumstances. Even a single act without subsequent repetition such as outer space program can be regarded as custom as long the states regarded the new practice as binding. 

There is no guideline on the duration of state practice either. The ICJ never set a guidelines on the time required for state practice to mature into customary law because the creation of customary law is inherently fluid. Further, in North Sea Continental Shelf Cases it was held that the length of time needed will vary from subject to subject and a brief period of time is not a bar to the formation of customary law but nevertheless a practice in short period of time can suffice if there is widespread and representative participations. In Right of Passage Over Indian Territory, a case concerning a right to transit from the Portuguese colony of Goa (on the coast of India) to little Portuguese-controlled enclaves in the interior of India, between Portuguese and Indian governments. The court held that there had been a custom existed for many century between its predecessors ie British and Maratha rulers thus Portuguese right of passage binding upon India.

The state practice also must be reasonably consistent. It must, in the words of the Permanent Court in the Lotus Case, be ‘constant and uniform’. There is no need be total consistency, for it is clear that this criterion is satisfied if there is substantial, rather than complete consistency in the practice of states. It is also clear from the Anglo-Norwegian Fisheries Case that the degree of consistency required may vary according to the subject matter of the rule in dispute. In The Asylum Case, the Peruvian military leader took refuge in the Colombian Embassy in Lima after leading an unsuccessful coup attempt. The Peru government turned down the Colombian government’s request for safe passage out of the embassy, out of the country and to the asylum state. The issue before the ICJ was whether a custom exists then with regard to the political asylum. The Court held that the facts….disclose so much of uncertainty and contradictions, so much fluctuations and discrepancy in the exercise of political asylum in the ……it is not possible to discern in all this any constant and uniform usage, accepted as law… . The court held that the Columbian Government failed to prove the existence of such custom.  

Mere general, uniform and consistent state practice are not sufficient for the formation of customary law. The state must also recognize such practice as binding upon them as law.

In the Lotus Case, the PCIJ emphasized that opinio juris was an essential element in the formation of customary law and the same was reaffirmed in the North Sea Continental Shelf Cases and has been accepted ever since. Opinio juris attempts to ascertain whether a practice is observed out of a sense of legal obligation or necessity or rather merely out of courtesy, neighborliness or expediency. On this point, a majority of the Court in the North Sea Continental Shelf Case said that ‘the frequency or even habitual character’ of a practice is not enough to establish opinio juris.

Opinio Juris is usually defined as conviction felt by states that certain form of conduct is required/recognized by international law. In Lotus Case it was held as a matter of inference from all circumstances, not merely the detailed acts which constitute the material element of the alleged customary rule.

How opinio juris may be proved was outlined in North Sea Continental Shelf. The Court went on to state that a state practice must be a settle practice and it must be done in such a way that the practice rendered obligatory upon the state by the existence of rule of law. The need for such a believe is a need for a subjective element to implicit in the very notion of opinion juris. The states must feel that they are conforming to what amount to legal obligation.

Be that as it may, Judge Tanaka in his dissenting judgment expressed that the opinion juris as something very difficult to achieve. He was of the view that it is extremely difficult to get evidence of its existence in a case. Opinio juris being of a psychological in nature, cannot be ascertained easily, particularly when diverse legislative and executive organs of a government participate in the process of decision making in respect state’s act. There is no other way then to ascertain OJ, from the fact of external existence of certain custom/practice and its necessity felt in international community, rather then to seek evidence as to the subjective motive of each examples of state practice, something which is impossible of achievement.

Judge Sorensen in his dissenting judgment in the case of North Continental held that the practice of state is sufficient evidence of the existence of any necessary opinion juris.

Treaty can also form a new customary law based on the provisions in it. The Court will refer to certain conditions which would have to be satisfied before declaring certain practice based on the provision of treaty had crystallized into customary law. A treaty rule may relate to customary law in one of three ways : -

a)    It may be declaratory of a rule of customary international law;
b)    It may crystallized a rule of customary international law, which means widespread and representative participation in the treaty; and
c)    It may serve to generate a rule of customary international law in the future by subsequent practice of state.

In the case of Delimitation of Maritime Boundary in the Gulf Area 1984, the ICJ said that general convention in which principle and rules of general principles can be identified, must be seen against the background of the subsequent CIL and interpreted in its light. 1958 Convention regarding continental shelf, the ICJ – the fact that there is 1958 Convention which applies to continental delimitation in the case does not mean Art. 6 in the convention can be interpreted without reference to subsequent rule of customary international law on the subject matter.

Thus, as elaborated above are the ways how customary international law is formed and the nature of its principle elements according to the decided cases.