TOPIC 1: THE SCOPE OF INTERNATIONAL LAW
Prescribed materials:
Literature:
- Wallace (chapters 1 and 13)
- Malanczuk P “History and theory” (chapter 2)
Learning outcomes:
After studying the prescribed materials, you should be able to do the following:
Explain in broad terms when is international law relevant;
provide a definition of international law;
explain in broad terms the various fields of international law - what different fields of law fall
under this concept;
outline the characteristics of international law;
at least partly, answer the question: how do we understand the position and purpose of
international law?; and
explain in broad terms the international community in upholding 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
- Private international law & Public 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
Point of Departure:
International Law: It is a separate legal system that in different ways interacts with the
different domestic systems of the world.
o It comprises those rules and norms that regulate the conduct of states and other
entities which at any given time are recognised as possessing international
personality.
o When a country signs an international treaty, they undertake to make it part of their
domestic law.
States shape the international legal system and give it its substance.
o Some states more than others.
Key word: Concepts
WHEN IS INTERNATIONAL LAW RELEVANT? - Examples
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, Two ships, one from Sweden and one from Iran.
o Iran is shipping oil to Syria. UK ceased the ship due to it interfering with certain
sanctions. The Iranian’s felt the need to retaliate. The backdrop of the agreement is
in relation to a nuclear deal.
o Iran then ceased the Swedish ship. Where was the ship when it was boarded and
why is it important?
- It involves the vocation of sanctions
- The sanctity of international waters needs to be protected for importing
goods.
- The act of piracy is an international crime.
Trump’s wall
o Does he have the right to build this wall?
o Refugees and immigrants are also important.
- Refugee: If you have fled prosecution in relation to, for example, religion,
then you can apply for asylum and the state has to give it to you.
- Immigrant: You are not prosecuted due to your political opinion, but you are
forced to travel because of other reasons such as poverty, climate change,
natural disasters, etc. However, international law does not embrace these
individuals.
Julian Asange
o He distributed information through Wikileaks.
o The information was regarding the identity of the spies and the information was also
potential violations of human rights.
o He wanted to take refuge in the embassy of Ecuador in London, but they declined.
o He is busy been considering for extradition to the US.
North Korea
o The country on Earth with the most severe sanctions, but yet they manage to
survive.
o However, the human rights condition in Hong Kong is the direst, yet they do not
revolt.
President of South Africa and President of Sudan
o The President of Sudan ordered and committed genocide.
o He then came to South Africa who is a ratifying state party to the ICC. Genocide is a
crime where everyone has jurisdiction, thus South Africa could have arrested him.
- However, he enjoys absolute immunity.
- South Africa did not arrest him.
- There is a High court judgement stipulating that South Africa should have
arrested him.
- South African then decided to withdraw from the ICC.
South Africa started echoing the arguments brought up by other
African countries such as Kenya, which claims that the ICC just wants
to point fingers.
South Sudan – July 2011
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, o Sudan was cut in half (Sudan and South Sudan), thus a new state was formed.
o 2019: All the negotiations, rebuilding and human rights efforts resulted in famine
and war.
INTRODUCTION
The concept of International Law
International law is a very broad concept.
International Law is not equal or similar to foreign law.
o Foreign law is anything that is not South African law whereas international law is the
law of nations.
o International law refers to international treaties and declarations.
See as an example S 39(1)(b) and (c) of the Constitution.
o This section holds that courts are allowed to consider international law and the
foreign law in the interpretation of the Bill of Rights.
o E.g. S v Makwanyane
o Introducing international law into the new Constitution was a quite dramatic step.
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.
o On a domestic level we have parliament, but on the international level we have a
community.
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 Individuals
- International human rights
o States
- Obligations
We assume that such a system has certain centralized institutions responsible for making
law, adjudicating disputes and enforcing legal norms.
This is not true in respect of international law – instead we are faced with different types of
subjects, law making and the phenomenon of the “fictitious person”.
o We have international human rights providing us with international human rights
and states with obligations, e.g. convention of the elimination of discrimination
against women.
o We have a list of international crimes where the individual must be held liable on
the highest level.
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, A difference between what we do domestically and internationally is the concentration of
power:
o 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.
- In our parliament we have a majority party that is pushing their agenda.
o International community: Power is fragmented and dispersed – no one is strong
enough to impose its will on the rest.
- On any given day you do not know if you have enough power to push your
agenda.
- There needs to be a consortium of states because not one state can
unilaterally push their power.
o Within the international community states do not act on behalf of, or in the interest
of the international community but pursue their own interests.
Main Challenges
Principles such as authority and sovereignty have become fragmented.
We increasingly rush into a world where the global is becoming the norm.
o We engage with people all around the world.
o Exchange of ideas, social media, communication, etc.
Hugo Grotius stipulated principles a long time ago
o Sovereignty, non-intervention, etc.
o But we are still stuck with many of these basic old principles that comes from an
understanding of the world that is very different to how modern times are.
o International law is still very grounded in the principle of sovereignty.
o However, we have introduced basic principles of human rights.
o What about Syria where the state turns about its own people and uses sovereignty
as an excuse for non-intervention?
o Thus, we live in a fragmented world because these principles do not act
harmoniously anymore like it used to.
o The same with protection of the environment, it doesn’t help that one state is trying
to protect it and another is destroying it.
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