This document is an extract of the 2021 international law portfolio exam as conducted by Unisa and written by a Unisa Student who was awarded 75% for his work.
,Question 1
a) The differences and similarities between international law and national law
The difference between international law and national law or municipal law,1 is firstly that
the subjects of international law are states and therefore, international law focuses
primarily upon the relations between states,2 whiles national law governs the domestic
aspects of government, and its subjects are therefore individuals.3
In National law there is a complete legislative process that has a recognised body that
creates laws,4 for example in South Africa we have parliament which is vested with the
responsibility of making and passing laws which are in effect binding.5 National law also
has the characteristic of a hierarchy of courts with compulsory jurisdiction to settle
disputes over such laws and an accepted system of enforcing those laws,6 therefore, the
system is fully developed. In South Africa for example we have the precedence system
which is also referred to as the doctrine of stare decisi which in essence makes previous
court decisions law,7 and the principles of natural justice such of Nemo iudex in sua causa
which in essence means that no person can judge a case in which they have an interest.8
The is also an executive authority within the national law and a police force that ensures
that the nationals abide by this law, the SAPS in South Africa is an example of such law
enforcement.9 There is therefore an existence of a legislature, judiciary, and an executive
to maintain legal order.10
Whereas international law does not follow the same model as national law.11 International
law has no legislature.12 The General Assembly of the United Nations comprising
delegates from all the member states exists, but its resolutions are not legally binding save
1
Malcolm Shaw International law (8 edn Cambridge University Press 2017) 96.
2
Malcolm Shaw International law 96.
3
Malcolm Shaw International law 97.
4
Malcolm Shaw International law 2.
5
The Constitution of the Republic of South Africa 1996, s 55(1)(a).
6
Malcolm Shaw International law 2.
7
African Charter on Human and People’s Rights - Chapter 2 < http://justice.gov.za/policy/African%20charter/afr-
charter02.html > accessed on 22 September 2021.
8
Adrian Vermeule, ‘Cotra Nemo Iudex in sua causa: The Limits of Impartiality’ (2012) YALE Law Journal 122-384.
9
Executive Authority (President, Cabinet and Deputy Ministers) < http://www.gov.za > accessed on 22 September
2021.
10
R Dias Jurisprudence ( Butterworths 1985) 40.
11
Malcolm Shaw International law 2.
12
Malcolm Shaw International law 2.
Page 2 of 24
, for certain of the organs of the United Nations for certain purposes. 13 Article 59 of the
Statute of the ICJ provides that the ‘decision of the Court has no binding force except
between the parties and in respect of that particular case’.14 Therefore, international law
excludes the precedent system in that the decision applies only to the parties involved,15
in other words, if the same issues arise between different parties, the court is not bound
to give the same ruling and the decision applies only in that specific case. There is
therefore no system of courts.16 Although the International Court of Justice does exist at
The Hague, it can only decide cases when both sides agree as per article 36 of the ICJ
statute,17 and it cannot ensure that its decisions are complied with.18
There is also no executive or governing entity in international law,19 with a police force at
its disposal to enforce judgments as in national law The security Council which could be
used to enforce judgements in international law has its power weakened by the veto power
of the five permanent members (USA; USSR, now the Russian Federation; China; France;
and the United Kingdom).20
The power of the Security Council in enforcing judgement lays in its power to sanction
states.21 Within the United Nations system, sanctions may be imposed by the Security
Council upon the determination of a threat to the peace, breach of the peace or act of
aggression.22 Such sanctions may be economic, for example those proclaimed in 1966
against Rhodesia,23 or military as in the Korean war in 1950,24 or both, as in 1990 against
Iraq.25
Despite the differences amongst the two systems, considerable similarities exist amongst
them also.
13
United Nations Charter art 17(1).
14
International Court of Justice Statute art 59.
15
Malcolm Shaw International law 2.
16
Malcolm Shaw International law 2.
17
International Court of Justice Statute art 36.
18
Malcolm Shaw International law 2.
19
Malcolm Shaw International law 2.
20
B Simma, The Charter of the United Nations (3 edn Oxford University Press 2021), chapter V.
21
Malcolm Shaw International law 2.
22
United Nations Charter, chapter VII.
23
Security Council resolution 221 (1966).
24
Security Council resolutions of 25 June, 27 June and 7 July 1950.
25
Security Council resolutions 661 and 678 (1990).
Page 3 of 24
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