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Summary International Law 341
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All prescribed content for the November exam. Includes case summaries.
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International Law 341: 2020Table of Contents
TOPIC 1: THE SCOPE OF INTERNATIONAL LAW .................................................................................................................................. 2
1.1 INTRODUCTION TO INTERNATIONAL LAW ............................................................................................................................................ 3
1.2 MAIN CHALLENGES ........................................................................................................................................................................ 4
1.3 CONCEPTS & DEFINITIONS ............................................................................................................................................................... 5
TOPIC 2: SOURCES & SUBJECTS OF INTERNATIONAL LAW ................................................................................................................. 8
2.1 CUSTOMARY INTERNATIONAL LAW ................................................................................................................................................... 8
2.2 TREATY LAW............................................................................................................................................................................... 12
2.3 JUS COGENS ............................................................................................................................................................................... 22
2.4 OTHER POSSIBLE SOURCES OF INTERNATIONAL LAW ............................................................................................................................ 27
TOPIC 3: RELATIONSHIP BETWEEN INTERNATIONAL LAW & DOMESTIC, SOUTH AFRICAN LAW..................................................... 29
3.1 WHY IS PIL SO NB IN THE SA CONTEXT............................................................................................................................................ 29
3.2 THEORIES ON THE RECEPTION OF PIL: MONIST & DUALIST THEORIES .................................................................................................... 29
3.3 SA HARMONISATION THEORY ......................................................................................................................................................... 31
3.4 TREATY LAW; METHODS OF APPLICATION.......................................................................................................................................... 32
3.5 CIL METHODS OF APPLICATION IN SA .............................................................................................................................................. 38
TOPIC 4: KEY ELEMENTS OF INTERNATIONAL LAW .......................................................................................................................... 43
TOPIC 4.1: INTRODUCTION TO THE UN ............................................................................................................................................ 53
4.1.1 STRUCTURE OF THE UN-CHARTER ............................................................................................................................................... 53
4.1.2 FUNDAMENTAL PRINCIPLES OF THE UN ......................................................................................................................................... 54
4.1.3 MANDATES OF DIFFERENT UN BODIES: UNGA & UNSG ................................................................................................................. 55
TOPIC 4.2: THE SECURITY COUNCIL: FUNCTIONS, MANDATE & ENFORCEMENT MECHANISMS ..................................................... 59
4.2.1 COMPOSITION OF THE SECURITY COUNCIL ..................................................................................................................................... 59
4.2.2 FUNCTIONS & POWERS OF THE SC ............................................................................................................................................... 60
4.2.3 VOTING & VETO ....................................................................................................................................................................... 61
TOPIC 4.3: THE USE OF FORCE & SELF-DEFENCE .............................................................................................................................. 62
4.3.1 EXCEPTION 1: COLLECTIVE SECURITY MECHANISM ........................................................................................................................... 64
4.3.2 EXCEPTION 2: THE RIGHT TO SELF-DEFENCE ................................................................................................................................... 67
TOPIC 5: JURISDICTION, EXTRADITION & TORTURE IN THE CONTEXT OF LEADING INTERNATIONAL CASES................................... 68
5.1 BELGIUM V SENEGAL .................................................................................................................................................................... 68
5.2 JURISDICTION ............................................................................................................................................................................. 70
5.3 APPLICATION .............................................................................................................................................................................. 72
1
,Topic 1: The Scope of International Law
Objectives
1. To establish when international law is applicable
2. To provide a definition of international law
3. To establish the different fields of international law
4. To outline the characteristics of international law
5. To at least partly answer the question: how do we understand the position and purpose of international law?
6. To outline the role of the international community
POD à “International law is a separate legal system that in different ways interacts with the different domestic
systems of the world.”
• States shape the international legal system & give it its substance.
• How domestic law is formulated: by/ through the legislature
• International: UN & other entities do formulate sources of international law but cannot promulgate the
legislature which needs to be adopted in the signatory countries
• It is therefore important to see international & domestic law as two separate systems.
When is international law relevant?
• Examples:
o US: President Donald Trump
§ “In order to fulfil my solemn duty to protect America and its citizens, the United States will
withdraw from the Paris Climate Accord ... We’re getting out”
o UK: Brexit
§ Deals with inter-state treaties and governmental rule
§ Britain exited the EU
§ This influences trade and business world wide
o Zimbabwe: a melting pot of international legal concern
§ Leader who has violated many international agreements
§ Mugabe instigated resistance to join ICC
§ People unhappy (coup d’état )
o South China Sea Dispute
§ Recent event: it was recently declared that China was in the wrong
§ However, China did not accept the outcome or the jurisdiction of the court
§ Characteristics of this international dispute over artificial islands, which has not legal basis
include:
• (1) third party involvement
• (2) resources
• (3) loss of life
• (4) exclusive economic rights if you have international human rights
o South Africa
§ Sudan – ICC
§ Omar Al Bashir
o North Korea
§ Nuclear weapons of mass destruction
o Venezuela:
§ Political & oil crisis
o Maduro
2
, § Set eyes on Constitution
§ Trying to circumvent the house that has the opposition majority
§ To do this he has to change the Constitution & has to have an election to do this
§ Rules in a soviet socialist style
o Democratic Republic of Congo
§ Did not step down
§ Tried to change the Constitution
§ He then used his power to clamp down on the electoral commission
§ Electoral committee has been able to delay the election for almost 9 months
o Panama files:
§ Was an accounting firm which did the accounting of very high-profile individuals
§ Relevance: International law has a developed idea of right to information, but in this case it is
murky because the right to privacy and contract breach was also involved
o Syrian refugees:
§ What part of public international law will be applicable here?
§ One of the most important avenues of international law is international refugee law because
it protects the human rights of displaced refugees
§ 1 agreement worked on the basis to provide safety to WW2 survivors
§ 60 years later – Syrian refugees – influx of refugees – take over in other countries to which
they flee
§ Most states have an obligation to protect you if you are persecuted (political opinion etc.)
§ The application of this convention, however, is very difficult
1.1 Introduction to international law
• Very broad field of law
• It is system of treaties & agreements between nations governing how nations interact with other nations &
businesses for other nations
• Typically falls into two different categories; private international law & public international law
o Public int law à concerns rules of behaviour among states & states or individuals & int organisations
o Private int law à concerns rules on how a national court shall deal with a case related to national
legislation from another country
Concept of International Law
• International law is not equal/similar to foreign law.
o Foreign law refers to the law of a particular country.
o International law is the law of nations.
• Through the lens of section 39(1)(b) & (c) of the 1996 Constitution, South African courts must consider
international law & may also consider foreign law in the interpretation of the Bill of Rights.
o Eg: CC decision in S v Makwanyane à certain concepts of international law were used to inform the
court’s interpretation of torture.
• International law is still a young system
o Was established after WW2 in 1945 when the United Nations was founded.
o Constantly evolving & developing area of law
• The state is the main subject in international law
o Because treaties are ratified by states.
o Notwithstanding individuals, organisations & other entities such as international corporations also
have obligations under int law.
3
, • Despite the impressive list of treaties & treaty bodies on the UN systems; The main weakness of international
law is that there is no World Human Rights court to adjudicate human rights violations, nor is there world
police to enforce compliance of the law.
o The value of compliance in international law is rooted in national self-interest but it is not legally
binding
• We all live within the framework of national legal orders, we therefore tend to assume that each legal system
should be modelled on state law, or at least strongly resemble it!
• The world community is unique – crucial fact!
o Failure to grasp this crucial fact leads to a serious misinterpretation of the impact of law on this
community.
• We are used to a national system that addresses individuals, groups of individuals or entities such as
corporations.
o We assume that such a system has certain centralized institutions responsible for making law,
adjudicating disputes and enforcing legal norms.
o This is not true in respect of international law - instead we are faced with different types of subjects,
law making & the phenomenon of the " fictitious person"
• National state: effective power, prohibition of the use of force by members of the community, state
monopoly of lawful coercion and central organs acting on behalf of the whole community are responsible for
law making, law determination and law enforcement.
• Int. community: power is fragmented & dispersed - no one is strong enough to impose its will on the rest.
o Within the int. community states do not act on behalf of, or in the interest of the int. community but
pursue their own interests.
1.2 Main challenges
• Hugo Grotius conceptualised the idea of international law, as he argued that it was inconvenient to continue
in the way they were going
o His idea was Eurocentric
• POD: create sovereign states, would find a way not to engage with force.
• 3 main principles:
o (1) sovereignty
o (2) non-intervention
o (3) jurisdiction
• For example, Al Bashir – can’t touch him because he is a sovereign.
o To be able to do something about human rights in country X – you will have to break sovereignty
• Hugo Grotius is believed to be the father of international law, but the world in which he & others envisioned
international law has drastically changed.
• One of the changes started with a small international community (countries who participated were mostly
well known countries from Europe, Asia and America). Most European countries also limited the growth of
the international community & kept it fairly constant (same role players) through inter-marriage)
• Today we have +/- 190 states
• Many of the principles Grotius formulated is however still applicable today à because the world has changed
so much this is problematic.
o For example:
§ The principle of non-intervention: According to this principle, states should not interfere in
the situations in other countries.
§ Problem: human right violations in countries continues & people cannot be protected
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