Term 1 & Term 2 notes
Includes lecture slides information, things said in class, as well as extensive information from prescribed readings. (Has great notes on the self-study section)
Term 1:
Why do South African lawyers’ study international law?
- Section 39 & 231-233 of the Constitution: thus, part of RSA law & influences RSA
domestic law
- RSA is part of the Global Community of States: State activity is regulated by domestic
& International Law- therefore need to understand how IL operates & applies to RSA
What is International Law?
International law= a set of rules and principles that primarily bind States in their relations
with one another
- General: all 193 states in the world (most IL)
- Regional: certain regions
- Bilateral: only 2 states
- Non-hierarchical
- Based on State consent: no court system with compulsory jurisdiction, no legislature,
no executive, no police to enforce the law
Domestic Law
- Centralised & vertical enforced from an individual above
International Law
- Horizontal & decentralized creator & subject= same person
,Sources of International Law:
Article 38(1) Statute of the International Court of Justice:
a. International conventions (treaties)
b. International custom (“customary international law”)
makes IL distinguishable from other law
c. General principles of law
d. Judicial decisions and teachings of the most highly qualified publicists
- Primary sources have no hierarchy
- 38(1)b based on State practice/ the way they act
- Subsidiary sources (Article 18(1)d) show evidence of laws and show the content of
the primary sources)
Enforcement of International Law:
1. State Responsibility= when state breaches IL they are liable to the victim State
Civil law claims
State vs State
E.g. There is a treaty between RSA & Zim. If RSA breaks the treaty they can be held
accountable for State Responsibility. If the breaking of this treaty impacts me as an
individuals, I cannot claim State Responsibility against RSA. Needs to be S v S claim.
2. Courts
- International Courts (Main one is in the Hague- judicial organ of the UN)
• Jurisdiction: if all the States involved have consented to the court’s
jurisdiction.
E.g. If RSA & Zim consented to the international court hearing the
case. No compulsory jurisdiction
, • Precedent: No formal system of precedent. The jurisdiction is based
on consent, thus the decision of the International court binds only
those parties.
- Foreign Domestic Courts can hear State dispute but in most cases states are immune
to these courts, unless they consent
E.g. RSA & Zim- the RSA HC would not hear a case relating to Zim. Zim is immune to
the domestic courts of RSA unless Zim consents.
3. Remedies
- Civil law remedies: compensation; restitution; apologies (successful state
responsibility)
- Non-forcible counter-measures (e.g. states can apply economic sanctions such as
imposing a trade embargo)
- UN Security Council sanctions (Security Council has special powers under the charter
of the UN)
Use of force can be authorised by the Security Council
- Use of force by a state w/out Security Council: Historically yes but no longer the case
International organisations:
International organisations act as fora where IL is created, discussed & enforced.
- The United Nations:
Only global (practically only one where all states are part of)
Security Council; General Assembly; International Court of Justice;
Secretariat; Committees
- Regional organisations
WTO
SADC (Southern African Development Community)
African Union
European Union
- Judicial organisations
ICJ
, ICC
African Court of Justice
European Court of Justice
- Expert bodies: interpreting and enforcing specific treaties
ILC: provides a venue for legal experts to discuss codification and
development of law
Treaty bodies (e.g. UN Human Rights Committee)
Sources of International law:
Treaties
Treaty=Charter=Conventions=Protocols (all the same for a treaty)
Treaty= contracts between states where they agree to follow rules that is set out in the
treaty itself.
- Articles: different parts of a treaty
- Section: different parts of domestic legislation
Vienna Convention on the Law of Treaties 1969 (VCLT): ‘treaty on treaties’ (treaty that is
recognised the basic rules on the law of treaties)
- Art. 2 Vienna Convention on the Law of Treaties:
treaty= an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.”
o Treaties can be between different bodies (e.g. State & International
organisation)
o Can be on any topic (WTO, environmental, outer space)
States are only bound if they sign up for the treaty:
- Bilateral: 2 states (e.g. between RSA & Zim)
- Multilateral: Group of States (African Union)
- Universal: small number (e.g. United Nations Charter)
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