Implementation of United Nation Act and Security Council Resolution

Reception of international law after independence has not been the subject of any in-depth research in Malaysia. Unlike the constitution of many other States , the Federal Constitution of Malaysia is entirely silent on the crucial question of whether international law is to be deemed part of the law of the land, or how the State organs ( the executive, legislative and the judiciary ) have to apply international law. How international law is operative before the Malaysian courts? Thus, the question of how international law is operative in Malaysia has to be discussed on the basis of certain statutory provisions and judicial decisions. Malaysia's acceptance of international law is, in the main, dependent upon one or more of the following:

1. Application of international treaties

Although the federal constitution does not contain any provision relating to the application of international law in Malaysia, certain provisions of the Constitution deal with treaties, agreements and conventions with other countries. The Federal Parliament has the exclusive power to make laws relating to external affairs ( including treaties, agreements and conventions) and that it has the power to implement international treaties and make them operative domestically. An analysis of the constitutional provisions indicates that in Malaysia, like in the United Kingdom, the Executive possesses the treaty-making capacity while the power to give legal effect domestically to treaties rests in Parliament.

In Public Prosecutor v Orham Olmez , the Supreme court applied 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, held that " a waiver of immunity of a diplomatic agent under the Vienna Convention must always be express."

The conclusion is that as far as treaties are concerned, the Malaysian practice is based on the 'doctrine of transformation'. Even though the Government has ratified a treaty and the treaty binds the Government under international law, it has no legal effect domestically unless the Parliament passes a law to give legal effect to that treaty. The following are a few examples of statutes made by Parliament to give legal effect to treaties concluded by Malaysia:

a. The Carriage by Air Act, 1974, to give legal effect to the Warsaw Convention of1929, as amended by the Hague Protocol of 1955 and the Guadalajara Convention of 1961.

b. The Exclusive Economic Zone Act, 1984, to give legal effect to certain provisions of the United Nations Convention on the Law of the Sea 1982.

2. Application of customary international law

Section 3 (1) of the Civil Law Act purports to state comprehensively the source of law from which Malaysian courts can draw. 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. Unless customary international law can be regarded as part of the common law of England there would appear to be no room for its application by the courts in Malaysia . Customary international law are regarded by the courts as part of the common law and only so far as it is not in conflict with Acts of Parliament or prior judicial decision of final authority.

This principle is supported by a long line of authority. In Buvot v Barbuit , Lord Talbot emphatically stated "that the law of nations, in its full extent, was part of the law of England. Therefore we can conclude that the 'doctrine of incorporation' is the dominant practice of the English courts in respect of customary international law. The logical consequence is that by virtue of section 3(1) of the Civil Law Act, customary international law, as applied in the UK as part of the common law, is applicable in Malaysia, to the extent that it is not contrary to the Malaysian statutes and public policy of Malaysia.

In Village Holdings Sdn, Bhd v Her Majesty the Queen in Right of Canada, Shankar J. held that "So far as a foreign sovereign is concerned, I hold that section 3 of our Civil Law Act 1956 leaves no room for any doubt that we in Malaysia continue to adhere to a pure absolute doctrine of State immunity when it comes to the question of impeding a foreign sovereign who declines to submit". This case clearly demonstrates the fact that the learned judge relied on English common law position which was declaratory of customary international law principle of absolute immunity." If there is a possibility of a conflict between a statute and a rule of international law, then the statute shall prevail. This idea is based on the common law principle of the 'supremacy of an Act of Parliament'.

3. Membership in International Organizations

Malaysia's membership in various international organizations (i.e. United Nations) whose declared purposes included the maintenance of international law, may in appropriate circumstances, be relied upon to gauge the extent of her acceptance of such law. The United Nations Charter is a multilateral treaty. It is the constitutional document that distributes powers and functions among the various United Nations organs. It authorizes the Security Council to take action on behalf of the members, and to make decisions and recommendations. The Charter mentions neither binding nor non-binding resolutions. Thus, there are some issues to be noted. Firstly, the question of whether a certain resolution is legally binding arise. Secondly, the question concerns the precise legal nature of the decision by the Security Council. While pursuant to Article 25 of the United Nations Charter, Security Council resolutions are recognized as imposing binding obligations on member States to give effect to the sanctions