Topic 12: International Law
When was the right of individual petition introduced? (a)1950; (b)1942; (c)1963; (d)1951
(a). Vaughan lowe reading: 'This right of individual petition was introduced in the 1950 European Convention on Human Rights. It was at first an optional matter, but is now compulsory and binding on all 44 states that are Parties to the Convention.'
Which of these is NOT an accurate statement regarding SG's stand with respect to the death penalty? (a) SG courts have expressly disagreeed with article 5 of the Universal Declaration of Human Rights, which prohibits torture of cruel or inhuman treatment or punishment. (b) SG courts reject the argument that the content of the norm in art 5 of the UDHR prohibits the death penalty generally. (c) SG courts accept art 5 as CIL, but argue that SG can enforce the death penalty as a matter of national sovereignty. (d) SG believes that the death penalty was a matter of criminal justice and not human rights, and that no major international treaties proscribed capital punishment.
(b). (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): 'Another judgment affirmed that article 5 of the UDHR, which prohibits torture and cruel or inhuman treatment or punishment, constituted CIL, but rejected arguments that the content of the norm prohibited the death penalty generally and hanging as a mode of execution specifically.' AND 'Singapore clearly voices contrarian views or dissent where it does not regard something as a human right or it disagrees with the interpretation of a right. In 2005, Singapore joined other states to lobby for a statement that the death penalty was a matter of criminal justice, not human rights, and that states had the sovereign right to decide whether to impose capital punishment. In 2016, the Foreign Minister reiterated this stand, underscoring that no major international treaties proscribed capital punishment. '
Which if these statements is true? (a) foreign relations are a function of legislative power (b) The Singapore Cabinet has treaty-making and ratification powers (c) Treaties signed by the executive branch have to be ratified by the legislative branch. (d) The Singapore Cabinet makes and negotiates treaties while the legislative branch ratifies them.
(b). (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): As foreign relations are a function of executive power, it is the Singapore Cabinet that has treaty-making and ratification powers. There is no requirement for the legislative branch to ratify treaties signed by the executive.
What qualities do SG courts look for to decide whether to integrate a CIL norm? (a) that the state practice is extensively practised (b) that the state practice is virtually uniform (c) that the state practice is prevalent in developed countries (d) that the state practice is both extensive and virtually uniform
(d) (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): The courts have primarily focused on whether state practice is 'both extensive and virtually uniform' to ascertain whether a putative CIL norm is clearly established.
Singapore in the International Law context
- After Independence on 9th Aug 1965, Singapore became responsible for her own external consequential rights and obligations and the capacity to influence and shape the development of modern international law - Singapore admitted to be the 117th Member of the UN GA on 21 Sept 1965 - Practical considerations: Singapore is a small nation and understandably in terms of both financial and human resources, we can ill-afford to participate in all international bodies open to us. E.g. Food and Agriculture Organisation (FAO) serves no useful purpose to us. - Every newly independent country will face the problem of determining what position to take with regard to treaties and international agreements which were extended to its territory prior to independence - Singapore prefers to deal with each situation as it arises, instead of a general policy - Important to be at the negotiating table at the beginning
Why is international law important to SG?
- Singapore is committed to a global order governed by the international rule of law due to our vulnerability as a small state - International law is key to preserving state sovereignty and mitigating the asymmetries of inter-state power and dampening the prospect of 'might is right' as the driver of international relations - In line with this, Singapore has championed the settlement of disputes through peaceful negotiations or third-party adjudication · submitted disputes it has had with Malaysia to arbitration or to the World Court, where both sides have accepted the ruling, without letting adverse decisions sour bilateral relations (eg. Pedra Banca, dispute over land reclamation, trade etc.)
Law of the Sea
- Singapore is the third largest port in the world and the maintenance of the freedom of communication over the sea is vital to her national economy and development - Singapore has yet to sign the 4 Geneva Conventions regarding the Law of the Sea This is because of several defects and inadequacies of the conventions: 1. Fail to provide maximum breadth of the territorial sea which a coastal State may legitimately claim 2. The definition of the term "continental shelf" is ambiguous not bar from exploitation of the oceans' natural resources, which is rampant given the improvements of technology, this gives coastal states an unfair advantage. 3. They fail to provide for an effective system of management and allocation of the living resources of the sea, allowing the few advanced fishing nations to reap a disproportionately large share of the living resources from the sea
ARCHIPELAGOES
- Under this concept, the states seek to draw straight baselines connecting the outermost points of the outer-most islands and drying reefs and the waters enclosed therein to be treated as internal waters - Despite this concept's adverse effect on Singapore, she did not oppose it due to ASEAN solidarity and neighbourliness - Singapore instead, seeks qualifications to the concept to ensure that her interests and safeguarded
Can larger states evade International Law
- While it is true that larger states may have more power on the global scale, it is also true that having a system of international law rules in place is far more preferable than not having one at all o Law based on principle and constraints power o Many states violate international law as a matter of practice. They are PREPARED to do it because they feel that protecting their national interests outweighs whatever loss of reputation and other detriments they may face as a result of the breach o For Singapore, they feel that the rule of law at an international level may provide the only bulwark against naked, raw power and brute force.
Importance of IL for SG
- secure urgently needed loans for infrastructure development - expand aviation routes - to help with creation of incentive schemes to entice FDI - Singapore's entry in bilateral investment agreements - IL allows Singapore to negotiate and participate in international meetings and forums - Allows SG to secure understanding with other states - Singapore's interactions with international law were most intense in its early years since statehood was achieved in rather difficult and complicated circumstances. - Constant challenges from within and abroad left Singapore with no choice but to look to international law for a solution in defending its sovereignty. -International law provided the best protection against the raw exercise of political and military power. - This was especially so in a volatile region like Southeast Asia during the 1950s and 1960s, when the Cold War was at its height. - Open economy, important to remain connected to the international legal system - For Singapore, the rule of law at an international level is the only thing that protects us from brute force and power by bigger states.
When are treaties entered into? What are the 2 things that affect what consent we are giving? What does signature signify?
1. Nature of the consent that the state is giving 2. Timing of the act of consent If the time for signature/ratification typically has closed, states have to accede to treaty. This means that the state becomes a full member of the treaty regime. (similar to effect of ratification) Signature Is typically not full consent State is signifying that he will not go AGAINST the treaty in good faith, but he is not fully bound yet since ratification comes after signature Only after ratification, it would be considered full consent
Singapore's involvement in other organisations
ASEAN · Singapore has been one of ASEAN's strongest advocates and supporters - promotes economic growth, social progress, cultural development, peace and security in the region. · Singapore has long supported the work of ASEAN and was instrumental in the final 'legalization' of the organization by persuading counterparts to sign the ASEAN charter to establish it as a legal entity o International law does not lay down any rigid form for the establishment of an international organisation. Its ultimate viability is dependent upon the will of the members and not on legal form. · Singapore is also the home to the Secretariats of the Pacific Economic Cooperation Council ("PECC") and the Asia Pacific Economic Cooperation ("APEC") · Singapore has been a permanent observer of the Arctic Council - The opening up of new sea routes potentially impacts Singapore as a transhipment hub. Singapore is also a member of the Commonwealth and the Non-Aligned Movement (NAM) · Singapore currently participates in over 100 ICAO (International Civil Aviation Organisation) expert bodies covering all aspects of international aviation · Member of IMO (International Maritime Organisation) Council · Singapore has hosted 2 World Trade Organisation (WTO) Ministerial Meetings (1996 and 2006) · Joined the International Monetary Fund (IMF) and the World Bank; Singapore has received assistance from the IMF since it joined and over the years has also supported the IMF in its various initiatives
Reporting Requirements in Treaties
Can involve reporting requirements e.g. must report to the UN (Convention against all forms of discrimination against women - CDAW), or reviews etc. Convention on the Elimination of all Forms of Discrimination Against Women (CDAW) - UN International Treaty - These reporting sessions are VERY rigorous, and are taken very seriously by Singapore - Written report - face to face "interactive dialogue" - Committee will then issue a report on how each country has done Different from UN Human Rights Council - State-to-state Diplomatic space; questions can be less probing
UN
Established in 1945 in the aftermath of WWII o General Assembly ▪ Deliberative body, involves ALL UN members ▪ Decides on admission of new members/elects members to UN security council etc. o Security Council ▪ Responsible for maintenance of international peace and security ▪ 15 members - 10 elected, 5 permanent members with all-powerful VETO power (permanent 5) - China, France, USA, Russia and Britain ▪ Power to establish peacekeeping operations, impose international sanctions, and authorize military action through its resolutions ▪ The only body who's resolutions are binding on all other member states o Economic and Social Council (ECOSOC) ▪ Body for deliberation of global economic and social affairs ▪ Coordinates work of UN's numerous specialized agencies ▪ 54 members elected by assembly o Secretariat ▪ Administrative arm ▪ Supports work of UN and all its bodies ▪ Headed by UN Secretary-general, elected by general assembly o International Court of Justice (ICJ) ▪ Judicial arm ▪ Main dispute resolution body for UN's members ▪ Does not have compulsory jurisdiction over all members of the UN ▪ Optional jurisdiction - States can choose whether to bring case to the ICJ
Singapore's approach to the domestic implementation of CIL is enshrined in her constitution. T/F?
F. (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): Although the Constitution is silent on the issue, Singaporean courts have made clear judicial pronouncements on the reception and status of international law within the domestic legal order.
International treaties which have been incorporated into the domestic legal order are immune to judicial review. T/F?
F. (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): In relation to judicial review in cases involving international law and the exercise of executive prerogative powers, the courts have clarified that matters of 'high policy' such as treaty-making and foreign affairs (for example those implicating international boundary disputes) are immune from review. This is because the courts consider such cases to be a matter of the separation of powers, which requires deference to the executive branch. International treaties which have been incorporated into the domestic legal order may, however, be reviewed.
CIL can nullify judicial precedent, and courts will preferentially apply CIL. T/F?
F. (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): Reflecting a state-centricity and nationalist orientation deeply protective of popular sovereignty, the courts will apply national law over jus cogens norms, which cannot nullify inconsistent statute or judicial precedent, even if this incurs international responsibility.
SG ratifies treaties before implementing domestic legal frameworks to give effect to treaty obligations. T/F?
F. (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): Singapore generally does not become party to a treaty unless it assesses that its domestic legal framework is able to give effect to the treaty obligations.
IL is usually invoked explicitly and with formal notice. T/F?
F. Vaughan Lowe reading: usually subtle. Government lawyers and organizations that operate internationally tend to share a common intellectual background and to look at the world in much the same way. This, the ILS and its principles and concepts become the framework for thinking about and practising international diplomacy. Given this shared understanding of international legal principles the invocation of the law can be a gentle and allusive process, even in the midst of a crisis.
CIL are peremptory norms that are so fundamental and widely accepted that nothing can override them. T/F?
False. CIL norms attaining the status of peremptory norms 'cannot override a domestic statute whose meaning, and effect is clear. (Simon,Hisashi, Under the 'Interpretation' section)
SG has an entirely duallist approach of incorporating international law T/F?
False. There are some monist aspects such as for CILs. Treaty laws have to be incorporated by statutes so that is a duallist approach (Thio - Reception - Pg 369)
Making of Treaties in the International Scene When should we try and start negotiations? Who works out how to apply? What must they examine?
For a small state like Singapore, it is important to be at the negotiations as early as possible. - Collectively, states make international law. It is important to participate, in order to take part in the changing of the law. (SG will be at the negotiation table as early as possible) **Decisions on the signing or accession to treaties is made by the Cabinet/Executive who will then delegate the Ministry of Foreign Affairs to work out the technical details. **MFA has no legal division and works with the International Affairs Division (IAD) of the Attorney-General's Chambers - Examine if it would bring changes to any part of our domestic law - Examine if the legislation needs to be changed to comply with these terms. - Where the treaties allow for something or require a declaration etc. - it would shape the way in which the country chooses to become a member of that treaty
What was the goal of the S-5/Small 5 in the United Nations? (of which SG is part of)
Goal: To increase the involvement of non-Security Council member states in its work, and to enhance the Council's accountability(such as by limiting the P-5's veto powers). However, they ultimately failed due to pressure from larger states.
Sources of International Law
International Conventions/Treaties: MOST IMPORTANT o Essentially contracts between states: can be bilateral or multilateral o Parties consent to be governed by the terms of the treaty, just like parties in a contract o Breach of treaty - consequences International Custom/Customary International Law (CIL) o Practice of states, not written in convention, regarded as legally binding o Peremptory norms - "Compelling law": The rule is fundamental to international law (include crimes against humanity, genocides, torture etc.) o Over time some of the rules are codified. Eg. Vienna Convention on the law of treaties Eg. UN Law of the Sea General principles of law recognised by civilized nations o Common to the municipal systems of most states o In the old days, international laws were typically drawn from municipal principles o 1968 Chorzow Factory Case - Obligation to make reparations Judicial decisions and the writings of the most highly qualified publicists. o Decisions by ICJ or its predecessor, the Permanent Court of International Justice, and various other tribunals established over time. o Technically, ICJ not bound by any previous decision of its own/any other judicial body, though these are always taken into consideration where relevant o Highly qualified publicists = Scholars of International Law, less important now since the scholars have collated the law for the development of international law
International Law vs Municipal Law (definitions)
International Law refers to the set of rules which are generally regarded and accepted as binding between states. Fundamental tenets and principles still remain from traditions left behind from the 19th century. Municipal Law is exercised within a single state, where the state can act quickly to legislate, and prosecute lawbreakers with the help of institutions like the police. Laws in Singapore are mostly municipal in their effect and operation, · Effective within a limited domain, generally restricted by Geography.
Is international law real law?
International law applies only to the extent to which states agree to their content and operation. Therefore, states must (i) see the need for international law rules and (ii) agree to comply with them, even if they might not fully agree. It is important to note that Law treats all states, big or small, powerful or not, equally thus International Law is an aspect that is very important to small states like Singapore.
State implementation of international legal obligations Legislative Measures Non-Binding Measures
Legislative Measures Where economic initiatives are concerned (eg. trade), the government aims to align with international standards by using binding legislation to attain legal harmonisation Eg. The 2010 Electronics Transactions Act was enacted to implement the UN Convention on the Use of Electronic Communications in International Contracts To accommodate cultural and religious minority rights, Singapore has made reservations to various human rights treaties Eg. Gender equality laws in relation to the Administration of Muslim Law Act are immunised from the Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW") This truncates the transformative impact treaties might otherwise have on domestic law Non-Binding Measures However, the government prefers to adopt non-binding guidelines to implement international treaties. This is especially so for those relating to human rights or labour law - preference for making policy rather than legal amendments
Structure: ILS vs MLS
MLS: Hierarchal or vertical: legislature is in a position of supremacy and enacts binding legislation ILS: All states are sovereign and equal
Politics: ILS vs MLS
MLS: Less influenced by politics ILS: Role of politics in international law influences the character of international law profoundly and is more likely to reflect the political interests of the countries (treaties are crafted so as to support or ignore things according to political interests of the countries)
Legislation in International Law vs Municipal Law
MLS: There is an existence of a legislation and a court system that can settle legal disputes and enforce the law. ILS: No legislature in exercise and it is by way of agreements made between countries (treaties), there is also no system of compulsory court and no international police force.
Domestic implication of International Law (Treaties) What approach does Singapore take for international and municipal law ? How are they incorporated?
Singapore adopts a dualist approach to the application of its international legal obligations where international and municipal law are seen as two distinct sets of legal orders Doctrine of Incorporation: 1. Even after accession - a treaty is only applicable if parliament enacts a law that applies it. 2. A treaty is not self-executing/automatically applicable - it has to come into the intermediation of domestic law 3. There may be a kind of contextualising and codification of international law, to adapt to the local context. 4. The treaty obligations will be met by existing legislation or transformative legislation (creating new legislation or changing existing legislation)
Interpretation of Laws after the Law has been incorporated into SG Law What is the status of International Law in Singapore? Interpretation of CIL Adopting CIL Judicial Review of CIL
Status of CIL in Singapore - When CIL rules are received in Singapore, they are received as part of Singapore common law and do not enjoy constitutional rank. It is such that domestic statutes prevail over CIL norms - The courts will apply national law over jus cogens norms which cannot nullify inconsistent statute or judicial precedent, even if this incurs international responsibility - this is to protect sovereignty Interpretation of CIL - Singapore's stance is that they will try as far as possible to interpret domestic law consistently with Singapore's international legal obligations. But where there are limits, the domestic law will prevail - Ultimately, it falls to Parliament to amend the constitution or enact new laws Eg. Where human rights treaties are judicially referenced, these usually reiterate domestic rules (eg. joint parental norm in the Women's Charter) - Where a statute refers to any treaty or international agreement, section 9A(3) of the Interpretation Act (Cap 1) permits reference to this to assist in interpreting statutory provisions. (i.e. they may refer to the definition used in the treaty). Adopting CIL - Changes can be made to international treaties when adopting it in the local context - Parliament in enacting legislation to give effect to treaties may include provisions which go beyond treaty terms, which will prevail where the wording is clear. With regards to judicial review: - Cases involving international law and the exercise of executive prerogative powers are immune from review as they are considered matters of policy. This is due to the need for the separation of powers and requires deference to the executive branch. - However, International treaties which have been incorporated into the domestic legal order may be reviewed.
A multilateral treaty embodying certain CIL norms to which SG is not party has been invoked against SG. The court did not protest against this invoking. This can be considered consent from SG to the CIL norm. T/F?
T. (From Li-Ann Thio and Kevin YL Tan reading, with simon chesterman in the title): The courts have recognized that multilateral treaties may embody CIL norms. In the some cases, the court's non-protest against invoking article 36(1) of the VCCR, a treaty Singapore was not then party to, is a form of tacit consent treated as evidence of opinio juris.
Were states bound by previous treaties extended to its territory?
The International Law Commission of the UN decided => States were generally NOT bound so a 'new' State should begin its treaty relations with a clean slate; more consistent with principle of self- determination. This was endorsed in the Vienna Convention Article 16. However, Article 16 only applies to the case of a State which acquired independence from a colonial power. There existed a trend that colonial powers would impose on successor newly independent states their previous obligations as dependent states => 'devolution' agreements e.g. between Malaysia and the UK => such an agreement could not establish treaty relation between successor State and third party State (which was not privy to this agreement). - Since Singapore did not acquire independence directly from a colonial power, it was unsure if a different rule should apply to Singapore when it came to treaties and her independence. - Singapore does not consider the devolution clause in the Separation Agreement of 1965 as constituting and obligation on her part to accept all previous treaties which applied to Singapore. - Singapore instead, reviewed the multilateral treaties entered into by either the UK or Malaysia and whose application was extended to Singapore at a time when those countries were responsible for the external relations of Singapore SG has therefore adopted the ^clean slate principle => acceptance of prior treaties was therefore of her own free will and in her own interest and not on account of any prior legal obligation.
Exclusive Economic Zone (EEZ)
The Study of the Secretary-General showed that a 200 nautical mile limit for the zone of national jurisdiction. State has the sole right to explore and exploit the resources therein, limited only by the restricted right of neighbouring landlocked and geographically disadvantages States to fish therein - For the landlocked states, the implementation of the EEZ concept will deprive them of their rights to fish in waters which are presently high seas - Similarly, for coastal states like Singapore which have extremely limited scope to claim any EEZ due to her geographic location, the EEZ will deprive her of fishing grounds - Singapore has argued that the concept of the regional economic zone is a fairer scheme than the individual economic zone concept
Singapore adopts a 'soft' approach in incorporating international human rights law T/F?
True My sensing is that this is true because generally SG adopts non-binding guidelines and adopts it through amendments instead of comprehensive legislations. E.g Penal Code was amended to give effect to the Genocide Convention by creating the crime of genocide (Thio - Reception - Pg 351)
Singapore adopts the 'Westphalian notion of sovereignty' T/F?
True. 'Westphalian notion of sovereignty' is the notion that states exercised absolute sovereign powers within their territorial boundaries. Though note SG applies it with regards to International law! (Simon,Hisashi - Pg 448)
Singapore's involvement in the UN What is the first initiative? What is the second initiative? What is the third initiative?
UN - In the 2001-2002 term, Singapore was elected to one of the non-permanent seats in the UN Security Council - Singapore has played a permanent role in UNCLOS - Joined the United Nations Commission on International Trade Law ("UNCITRAL"); 3 UNICITRAL Chairmen were Singaporeans over a 40-year period - peace-keeping and peace-building efforts - participated in UN missions to warring countries such as the Iraq-Kuwait conflict, Cambodian conflict, East Timor conflict, etc.) - Vietnamese invasion of Cambodia back in 1978, and the campaign to allow the Khmer Rouge government of Democratic Kampuchea (DK) representative to keep its seat at the United Nations Ist Initiative - Most significant contribution: initiating the formation of the Forum of Small States (FOSS), an informal grouping of small states (population less than 10 million) - Rational for forming FOSS: small states were often excluded from the inner sanctums of negotiations; lacked in-depth information on what went on in the UN; and were proportionally under-represented in the UN's principal organs and specialized agencies - FOSS's scope of activities: platform for small states to support each other's candidatures in elections to the various UN and UN-related bodies and talks on international issues by prominent academics or senior diplomats 2nd Initiative - Singapore is also part of the Small-5 (S-5), another small state initiative aimed at improving the UN Security Council's operations and increasing the involvement of non-Security Council member states in its work and to enhance the Council's accountability 3rd Initiative - A third Singapore initiative involving the UN's smaller states was the establishment of the Global Governance Group (3G) · The group, comprising 30 small and medium-sized states, was set up to bridge the widening gap between the actions and deliberations of the G20 countries
Domestic implication of International Law (Customary international law CIL) General features of CIL 2 step inquiry Issue of Hierachy
o There is no international statute. o Note that it is the courts, and not parliament which recognize it. o Without Singapore's judicial recognition, established international CIL norms do not automatically apply. o In deciding whether to recognize a CIL, the courts have primarily focused on whether state practice is 'both extensive and virtually uniform' to ascertain whether a CIL norm is clearly established - essentially whether or not CIL is adopted depends on how well it aligns with state practice o 2-Step Inquiry for CIL (1) Ascertain whether it is actually a CIL or merely a political claim? (Ascertain legal status) (2) Determine how can it be applied to Singapore, and how it is relevant on the facts · E.g. Yong Vui Kong (2010): Court felt that although torture was a CIL, death by hanging was not torture o Issue of Hierarchy - it matters whether the CIL enters at the level of common law, statutory law, or constitutional law. § E.g. Using the same example of the death penalty, if the CIL enters at the common law, the Misuse of Drugs Act can still trump it VS if it came in at the constitutional law level - it would be more likely the CIL will stand.
Elements of the international law system
· General Assembly of United Nations - Legislative · International Court of Justice - Judicial · UN Security Council/Interpol - Executive However, these are but just parallels and we cannot expect them to act the same way as their counterparts in the municipal system.
Reasons to comply with International Law
· When states comply with International Law, it is indicative that there is more benefit derived than harm. o Note that it is not imposed on states against nation's will. Rules mostly arise from treaties or customary international law. Free to enter as they please, but binding once made. · Customary International law is based on nations' practices. Therefore, it is just a codification of what states habitually do already · Allows states to predict the reactions of other states - can reasonably know what others will generally act in confines of the law helps in decision making · Long-term reason: Nature of interests. o Violations may have implications on future domestic political interests (e.g. held against them in elections) and also on relations with other states.