Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

CHAPTER 1 HISTORICAL BACKGROUND ON INTERNATIONAL LAW The history of International Law can be traced back to the Ius Gentium Concept 1 of Roman Law which was understood as the common universal law based on the doctrine of the universal law of nature. The significance of Ius Gentium Concept is that it lay down the body of common laws that applied to foreigners, and their dealings with Roman citizens. Although Ius Gentium Concept was shared by all nations it did not connote a common jurisdiction. This concept is also used and served as part of the universal order underlying Christendom up until the Renaissance Period. This concept also have lead to the emergence of new nation States and the down fall of imperial order. It allows the Concept of Sovereignty to remain with the States as the authority best guarantee the well being of the subjects of the State by protecting him from the evil of society. The origin of the international community is commonly traced back to the Peace Treaty of Westphalia (1648) signalled the development of the sovereign nation State independent of the Church. Prior to the Peace of Westphalia, Europe had been dominated by two competing power structures-the Catholic Church with ecclesiastical law on the one side and the Holy Roman Empire and Imperial law on the other. Both these powers put an end to the Thirty Years War in Europe. The Peace Of Westphalia This Treaty is a testimony that 'recorded the birth of an international system based on a plurality of independent States, recognising no superior authority over them. It refers to the pair of treaties (the Treaty of Mnster signed on October 24 and the Treaty of Osnabrck) May 15, 1648 . It involved the Holy Roman Emperor Ferdinand III, the other German princes, Spain, France, Sweden and representatives from the Dutch republic. Later, The Treaty of the Pyrenees, signed in 1659, ending the war between France and Spain, is also often considered part of the treaty. The peace as a whole is often used by historians to mark the beginning of the modern era. The texts of the two treaties are largely identical and deal with the internal affairs of the Holy Roman Empire. The Peace continues to be of importance today, with many
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The 2 Roman Concepts are; The Ius Civile ("Citizen law") was the body of common laws that applied to Roman citizens.The Ius Gentium ("Law of nations") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. Some Roman jurists introduced Ius naturale as a further category. It encompassed natural law, the body of laws that were considered common to all beings. Since these laws made sense to a reasonable person thus they were followed. All laws which would make sense to a normal person were called Jus naturale. Slavery for example was part of the empire-wide Jus Gentium because forcing people to work for others was not natural. So, slavery was part of the "jus Gentium" but not of the "Ius Naturale

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

academics asserting that the international system which exists today began at Westphalia2. The main tenets of the Peace of Westphalia were: All parties would now recognize the Peace of Augsburg of 1555, by which each prince would have the right to determine the religion of his own state, the options being Catholicism, Lutheranism, and now Calvinism (the principle of cuius regio, eius religio). Christians living in principalities where their denomination was not the established church were guaranteed the right to practice their faith in public during allotted hours and in private at their will There were also territorial adjustments: The majority of the Peace's terms can be attributed to the work of Cardinal Mazarin, the de facto leader of France at the time (the King, Louis XIV, was still a child). France won control of the Bishoprics of Metz, Toul, Verdun in Lorraine, the Habsburg lands in Alsace (the Sundgau), and the cities of the Dcapole in Alsace but not Strasbourg. Sweden received an indemnity, as well as control of Western Pomerania and the Prince-Bishoprics of Bremen and Verden. It thus won control of the mouth of the Oder, Elbe, and Weser Rivers, and acquired three voices in the Council of Princes of the German Reichstag. Bavaria retained the Palatinate's vote in the Imperial Council of Electors (which elected the Holy Roman Emperor), which it had been granted by the ban on the Elector Palatine Frederick V in 1623. The Prince Palatine, Frederick's son, was given a new, eighth electoral vote. Brandenburg (later Prussia) received Farther Pomerania, and the Bishoprics of Magdeburg, Halberstadt, Kammin, and Minden. The succession to the Dukes of Jlich-Cleves-Berg, who had died out in 1609, was clarified. Jlich, Berg, and Ravenstein were given to the Count Palatine of Neuburg, while Cleves, Mark, and Ravensberg went to Brandenburg. It was agreed that the Prince-Bishopric of Osnabrck would alternate between Protestant and Catholic holders, with the Protestant bishops chosen from cadets of the House of Brunswick-Lneburg. The independence of the city of Bremen was clarified.
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Both the basis and the result of this view have been attacked by revisionist academics and politicians alike, with revisionists questioning the significance of the Peace, and commentators and politicians attacking the "Westphalian System" of sovereign nation-states.

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

The hundreds of German principalities were given the right to ratify treaties with foreign states independently, with the exception of any treaty which would negatively affect the Holy Roman Empire. The Palatinate was divided between the re-established Elector Palatine Charles Louis (son and heir of Frederick V) and Elector-Duke Maximilian of Bavaria, and thus between the Protestants and Catholics. Charles Louis obtained the Lower Palatinate, along the Rhine, while Maximilian kept the Upper Palatinate, to the north of Bavaria. Barriers to trade and commerce erected during the war were abolished, and 'a degree' of free navigation was guaranteed on the Rhine. Significance of The Peace of Westphalia Theory To International Law Traditional realist view The Peace of Westphalia is crucially important to traditional realist who have the view that this Peace Treaty often being defined as the beginning of the international system . It is acknowledged by legal jurists assuch because the Peace of Westphalia holds several key principles, which has an impact on the modern international world today. The keys principles concept are: a. The principle of the sovereignty of states and the fundamental right of political self determination The principle of (legal) equality between states The principle of non-intervention of one state in the internal affairs of another state3

b. c.

Revisionist view The Peace of Westphalia impact is not without any critics. Revisionist historians theorists argue against all of these points. a. Neither of the treaties mention sovereignty. Since the three chief participants (France, Sweden and Holy Roman Empire) were all already sovereign, there was no need to clarify this situation. In any case, the princes of Germany remained subordinate to the Holy Roman Emperor as per the constitution b. While each German principality had its own legal system, the final Courts of Appeal applied to the whole of the Holy Roman Empire - the final appellate was
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These principles are common to the way the dominant international relations paradigm views the international system today, which explains why the system of states is referred to as "The Westphalian System".

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

the Emperor himself, and his decisions in cases brought to him were final and binding on all subordinates. The Emperor could, and did, depose princes when they were found by the courts to be at fault c. Both treaties specifically state that should the treaty be broken, France and Sweden held the right to intervene in the internal affairs of the Empire. Rather than cementing sovereignty, revisionists hold that the treaty served to maintain the status quo ante. Instead, the treaty cemented the theory of Landeshoheit, in which statelike actors have a certain (usually high) degree of autonomy, but are not sovereign since they are subject to the laws, judiciary and constitution of a higher body. Modern views on the 'Westphalian System' The Westphalian System is used as a shorthand by academics to describe the system of states which the world is made up of today. Here are some of the famous comments on the Westphalian system of states: a. That "humanity and democracy [were] two principles essentially irrelevant to the original Westphalian order" . The Westphalian system is silent on the principle of sovereignty but it keep on reliying on it which it self introduces rivalry, and not community of states; it introduced exclusion, not integration of States.4 The system of European politics set up by Westphalia was obsolete: The core of the concept of Europe after 1945 was and still is a rejection of the European balance-of-power principle and the hegemonic ambitions of individual states that had emerged following the Peace of Westphalia in 1648, a rejection which took the form of closer meshing of vital interests and the transfer of nation-state sovereign rights to supranational European institutions.5 The international system built-up by the West since the Treaty of Westphalia will collapse; and a new international system will rise under the leadership of a mighty Islamic state". It has also been claimed that globalization is bringing an evolution of the international system past the sovereign Westphalian state6. Supporters of the Westphalian state oppose socialism and some forms of capitalism for undermining the nation state. A major theme of Buchanan's political career, for example, has been attacking globalization, critical

b.

c.

d.

In 1998 a Symposium on the continuing political Relevance of the Peace of Westphalia, statement made by thenNATO Secretary General Javier Solana. 5 In 2000, thenGerman Foreign Minister Joschka Fischer referred to the Peace of Westphalia in his Humboldt Speech, 6 In the aftermath of the 11 March 2004 Madrid attacks, Lewis Atiyyatullah, who claims to rep resent the terrorist network al-Qaeda, declared that

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

theory, neoconservatism, and other philosophies he considers detrimental to today's Western nations7. The Concept of Sovereignty International law run concurrently with the development of sovereignty. The two leading figures in support of this theory were Hugo Grotius8 and Gentillus9. The Concept of Sovereignty has separate but related connotations with Public International Law. It places the supreme power within the State, but since all States are equally sovereign, it also conveys the idea of independence. The claim of a state to be sovereign does not mean that the power of the State is subject to no limitations. The obvious limitation is territorial, therefore it brings about the necessity of boundaries. Beyond the scope of its boundaries, where its writ does not run, the independence of each State presupposes that of the others. In his thesis Grotius spoke of the importance of the boundaries of nations. These boundaries do not move as the boundaries of private estates do. According to him, territorial sovereignty was something more than real property one must recognise that the State is the political expression of a community based on land, and there is a distinct element of command behind the transfer of land and changes in boundaries and therefore it bring about the right to govern the community, this is where the doctrine of selfdetermination lies10. It must be recognised that several other concepts and ideas developed throughout the centuries. For example : the notions of neutrality and a permanent diplomatic mission develop late in the eighteenth century. After the Napoleonic wars, the Congress of Vienna saw the first major summit meeting to organise peace by the Major Powers. A series of international treaties established the neutrality of Switzerland (1815) and of Belgium (1831); laid down general rules for the navigation of rivers (1815), and

However, European nationalists and some American paleoconservatives such as Pat Buchanan hold a favorable view of the Westphalian state. 8 The former is commonly spoken of as the father of internatio nal law and published De Fure Belli ac Pacis in 1625. It has been argued that the contribution of Grotius to the development of nodern international law has been overstated. The substantive matters of international law were hardly touched by him and derived from municipal law analogies. Treaties were considered on par with contract. The rules governing the acquistion and loss of territory derived from Roman law and were not markedly different from municipal law. Put simply, this thesis maintains that international law was municipal law writ large.
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The latter was an Italian law professor , an adviser of government and a practitioner of international law. It is essential to understand that these two academics were theologians by training and looked to the middle ages for their ideas. 10 During these time period there were vast amount of other literatures produced especially on methods of preserving peace and on equitable principles designed to ensure a balance of political power. The ideas in these literatures if we look carefully are actually in opposition to the growing concept of nation State but these ideas later help develop a concept on counter-balancing the doctrine of sovereignty.

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

specific regulations for the Rhine; codified law relating to maritime warfare (Declaration of Paris 1856). Throughout the 19th century, State practice produced the framework for modern international law dealing with the recognition of States, which achieved prominence in the attitudes of Great Britain and the USA to the independence of Greece. Rules governing State responsibility also developed. The past 20th century has witnessed efforts to limit certain nation policy (KelloggBriand Pact, 1928).

Thus, the concept and the foundations of modern international law were form, laid down and followed until today.

DEFINITION OF PUBLIC INTERNATIONAL LAW Public international law commonly known as international law, is the body of law that regulates the activities of entities possessing international personality. Traditionally that means the conduct and relationships of States. However , it is now well established that international law also concerns the structure and conduct of international organizations and to a certain degree that also of multinational corporations and individuals. Therefore the necessity of international law arises from the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behaviour. The term public international law should be distinguished from private international law. Both are supranational system of law. However , public international law regulates the relationship between states and international entities, whereas private international law selects between conflicting municipal systems of law to regulate the relationship between persons, both legal and natural. Accordingly, international law consists of rules and principles of general application which govern the conduct of states in dealing with its own subjects, or with other states or in its relation with international organization. International law ususall is define as the body of rules and principles of action which are binding upon civilized states in their relationships with one another. In this context International Law, is divided into two types : Public International Law and Private International Law. Public International Law concerns itself only with questions of rights between nations and the citizens and/or their relationship with other subjects of the other States. Example of Public International Law can be seen in matters relating to International Diplomatic Relationship. In another context, International Law includes the basic, classic concepts of law in national legal systems -- status, property, obligation, and tort (or delict). It also includes substantive law, procedure, process and remedies. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can only be changed or modified by a subsequent peremptory norm of international law.

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

Whereas, Private International Law deals matters relating to private persons, either on natural or juridical issues, arising out of situations that relate to a significant relationship with any other State or States. Example to this explaination can be seen in matter relating to contract or protection on citizen. In recent years the line between public and private international law have became increasingly uncertain11. Sometimes Public International Law is identified as The Law of Nations12. This is because International Law imposes specific obligations and rights on nations, just as domestic law imposes them on individuals. Its purpose is similar to that of domestic law: it eliminate chaos and the need for violence by clarifying how States should behave towards each other13. Another character of International law is that it imposes upon the nations certain duties with respect to individuals. In International Law it is a violation of international law to treat an alien in a manner which does not satisfy the international standard of justice. However in the absence of a specific agreement an individual cannot bring the compliant violation before an International Tribunal, only the State of which the individual is a national can bring forward complain of such nature. Public International Law is sometimes known as the Law of Treaties. Treaty is only a part of International Law. In fact Treatises are agreements among States usually Treatise are procedures agreed between States as to how they will behave with respect to each other in any particular matter of interest. Treaties can be bilateral, between two States, or multilateral, among many States. These Treatises are called convention or covenant. Regardless of how they are called, they are binding on all nations that have ratified them. In multilateral treaties, States parties to the Treaty are usually allowed to make reservations and understandings to specific articles. When they make a reservation, they are saying we are bound by the treaty, but not by this article(s); when they make an understanding, they explain how they will interpret an specific article(s), and say they will only be bound by such an interpretation. State Parties to the Treaty can make reservations to most articles, although they are prohibited from making reservations that would be incompatible with the object and

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Issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial significance for the international community of nations. Example can be seen in matters relationg to child adoption.
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Especially in United States. There, it is accepted as a part of the law of the United States but only for the application of its principles on questions of international rights and duties. 13 There are controversies among legal scholars as to whether international law is natural in the sense that it exists beyond the outright acceptance of nations to be ruled by it, or whether it is positive and only applies to nations that have given their consent to its rule. At this point, however, these differences are immaterial. International law exists, it applies to a greater or lesser extent to all nations, and all nations must obey it.

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

purpose of the treaty14. It is not always clear what happens when a nation tries to make such a reservation to a treaty; the treaty body empowered to interpret the treaty may reject the reservation, but it is unclear whether under those circumstances the reserving country is not bound by the treaty at all, it is bound by the whole treaty, including the article it tried to reserve, or something else happens. States must ratify a treaty before they are formally bound by it - this is usually done after obtaining permission from the government body empowered to give it . If a States has signed, but not yet ratified, a treaty, it must still do nothing that would be contrary to the aims and purposes of the treaty, but it is not bound by its specific articles. In Public International Law, States are bound not only by the treatises they had ratified but also through International Customary Law and general principles of law. International customary law can be understood as the customs of states recognized as law, and it refers to the norms that states have recognized historically as binding them15. Most of the laws prohibiting crimes against humanity were born as customary international law; this includes the prohibitions against genocide, slavery and mass disappearances. Its not necessary that all States recognize a norm of international customary law for the norm to exist and bind them, it only needs to be the general consensus. Nations that object to a norm of international customary law when its being formed are not bound by it when it later does become customary law. For example, the United States has repeatedly objected to any norms that would outlaw the death penalty, and thus if a customary international norm was formed prohibiting it, the US would still not be bound by it. There are certain norms of international law that are so universally accepted, that they bind all countries. This peremptory norms of international law or jus cogens, as they are called, are a recent arrival in international law doctrine and are few in number, but they include some of the most heinous human rights violations such as the prohibitions against torture and genocide. General principles of law, the final category, are principles so general that they are accepted throughout different legal systems. For example the principle of res judicata which sets that once a matter has been definitely decided by a court, it cannot be decided again - exists in most legal systems and is considered a general principle of law accepted even in International Law. In the human rights context, the prohibition of torture is generally considered a general principle of law as most countries have similar legislation. While most human rights are currently recognized by treaties - it is important to understand these bases of international law so as to be able to evaluate what these treaty obligations entail and that a country may be bound by the law, even when he has not ratified a given treaty. Importance Of Public International Law to International Arena
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For example, a nation ratifying the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment could not make a reservation that would allow it to torture people under certain circumstances. 15 The most obvious and important example of this is the norm of pacta sunt servanta, treaties must be obeyed. Nations have traditionally understood this as being so, and has thus become law.

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

Since public international law established the framework and criteria for identifying States as the principal actors in the international legal system, its then presupposes control and jurisdiction over its territory,deals with all issues on territory, state immunity, legal responsibilities of State and its conducts with each other and it similarly concerned with the treatment of individuals in its territory. State also deals with groups rights, treatment of aliens and refugees, international crimes, nasionality problems and human rights in general. Public international law also deals with States conducts in maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of war and it has developed principles to govern the conduct of hostilities and the treatments of prisoners and deals also with issue on global environment, world trade and global commons like air space and outer space. Public international law accepts that all States are sovereign and all States are equals, on this concept, the value and authority of international law is dependent up[on the voluntary participation of States in its formulation, observance and enforcement. Although there may be exception, most of States enter into legal commitments to other States out of enlightened self-interest rather than adherence to a body of law that is higher than their own. The Importance of Public International Law in Commercial World The important of public international law to States in the exercise of their sovereign activities and in their relations with one another is as fundamental today as it has ever been. It is well accepted facts that public international law defines the very existence of states itself, it provides the framework for diplomatic relations it governs international agreements, it sets forth rules for the separation of international commerce, it governs individual human rights and its regulates protection of the global environment ( air, land sea and natural resources). Recent decades have been seen an extension of the relevance and applicability of public international law to private entities. Of particular note, corporate entities that operate on a global level have emerged as legal persons that are subject to their own rights and obligations at public international law whernever dealing with States or State entities are concerned. Public International law thus plays an increasingly important role in todays commercial world, both as regards States and private entities. The role of public international law in commercial context is set to grow still further in the coming years. Three reasons for the phenomenon can be highlighted: a. The range and scope of public international law has vastly extended in recent years. It now forms a critical element in many international commercial transactions and often plays the leading role in setting related disputes. The

Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

b.

c.

WTO ( World Trade organization) is well-known example of this. The proliferation of bilateral investment treatise and the advent of multilateral treaty-based regimes, giving effective rights of redress to investors against governments, such as those established under ICSID ( International centre for settlement of Investment Disputes), NAFTA and the Energy Charter treaty, are less well-known developments. There has been a marked increase in the number of State-to-State disputes that have been referred to dispute resolution. This has been manifested in an increase in the work of the International Court of Justice, together with a proliferation in work of international arbitral tribunals involving States ( such as under the UN Law of the Sea Convention). Corporate and other private entities have an increasing interest in these disputes, many of which relate to sovereignty over valuable natural resources such as oil and gas. Given the growing role of States in commercial transactions, States and State entities are increasingly finding themselves appearing as litigants before applicable rules of public international law. Three inter-related areas in wchich public international law plays a critical role in todays commercial world are ; The protection of foreign investment, Energy and project finance and Land and maritime boundary disputes. The breath of these areas underlines the importance of building public international law into strategic thinking of corporations as well as government and international organizations.

Protection of Foreign investment Public international law is increasingly relied upon by international investors as a means of protecting their investments against political risks and State inteference in the form of, inter alia, expropriation, discrimination and arbitrary treatment. Such reliance has been fuelled by the proferation in bilateral and multilateral treatise over recent years. International investors can maximise the protections offered by such treaty regimes by appropriate structuring of their investments through States with the most beneficial investment treatise with the host State. Bilateral and multi-lateral investment treatuse give direct rights to international investors in their relations with States and State entities. In the vast majority of cases, these include the ultimate right to commence international arbitration against the host State in the event of breach of one or more of the substantive protections included in the treaty. This can be achieved regardless of whether there is a contractual relationship between the investor and the government or its agencies. Indeed, recent years have seen an explosion in the number of disputes between foreign investors and host State being referred to international arbitration. One focus for the resolution of such investment disputes has been the ICSID, established by the World Bank. Another has been the Permanent Court of Arbitration in The Haque, The Netherlands. Many of these disputes have ended in large arbitral awards or settlements in favour of investors.

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Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

Energy And Project Finance Public International law has played a particularly significant part in specific commercial sectors where trans-national investment and substantial State interests are commonplace. A leading example is the energy sector, where issues include: State sovereignty and jurisdiction over natural resources; cross-border pipelines and straddling reservoirs; and the Law of the Sea aspects of hydrocarbon exploration and extradition activities. The Energy Charter treaty is also playing an increasingly important role in the energy sector, particularly throughout Europe and the States of the former Soveit union. Other sector in which public international law now plays an important role as a result of substantitial international investment flows are utilities and telecommunications. Boundary Disputes Since the end of the Cold War, there has been an increase in the pacific settlement of inter-state boundary disputes by way of judicial or arbitral processes. The legal and technical expertise required to assist a State in resolving these disputes is very specialised. It has been estimated that over 100 land boundaries and 250 maritime boundaries have not yet been delimited. Most boundary disputes are in reality disputes about the ownership of natural resources many driven by developemnts in hydrocarbon extraction technology. Fundamental Conflict over International Law Where there are breaches of law, international law has no established compulsory judicial system for the settlement of disputes or corercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations Organization for example , created a means for the world community to enforce international law upon members that violate its charter. Traditionally States were the sole subjects of international law but with the profeliferation of international organizations in the recent century, they have been recognised as parties to international law this development changed the position of nation-states, which previously view as the primary unit of international affairs , now, after WW I and WW II, nation-state is exposed as a weak system especially in securing and maintence of peace and security to its own system. Therefore, the world area call for a stronger system of laws which is evident in the creation of United Nation Organization and follow later through the establishment of new international criminal law at Nuremberg Tribunals. Many scholar feel that the new international creation endanger nation-state by shifting the legal power from State Government to international body (UN). There is a growing trend that one States domestic actions is judge in the light of international law and standard, even though, it is clearly stated in United nation Charter that States have free reign over their own domestic affairs and States only commits to international law with

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Prof Madya rohani Mohd Shah/Faculty of law/ UiTM/LAW 510/ March 2013

express consent and have the right to make their own interpretation of its meaning and that international courts only function with the consent of States16

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Check Vienna Convention and UN Charterin the preamble.

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