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International Law 341 Summary
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- Stellenbosch University (SUN)
Summary of 78 pages for the course International Law 341 at SUN (Full summary)
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International law 341Key:
Human right(s) = HR(s)
Public international law = PIL
International law = IL
International Criminal Court = ICC
International Court of Justice = ICJ
Vienna Convention on the Law of Treaties = VC
UN General Assembly = GA/UNGA
UN Security Council = SC/UNSC
International Covenant on Civil and Political Rights = ICCPR
Convention on the Elimination of Discrimination against Women = CEDAW
African Commission on Human and Peoples' Rights = ACHPR
Convention Against Torture = CAT
International Criminal Tribunal for the former Yugoslavia = ICTY
International Criminal Tribunal for Rwanda = ICTR
Structure of the module:
1. Introduction to international law (weeks 1-5)
2. Self-determination, use of force in self-defence, breach of international human rights law and erga
omes principles (weeks 6-7)
3. Jurisdiction, extradition and torture (weeks 8 and 11)
4. The regional protection of human rights, socio-economic rights (weeks 12 -13)
5. 2 guest lectures
Theme 1: Introduction to International Law
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
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.
Introduction
International law could be called Euro-centric; uncertain; bureaucratic
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, Point of departure: international law is a separate legal system that in different ways interacts with
the different domestic systems of the world
o States shape the international legal system and give it its substance
o We are not faced with the traditional domestic system (legislature, judiciary, executive,
separation of powers)
o Different to what we are used to
o Not necessarily a specific sanction for a transgression
o E.g. Russia snatching Crimea – what is the consequence?
When is international law relevant?
Peace-keeping; placing constraints on the use of force; collaborating on environmental issues;
issues re territorial borders; resources for example on the North Sea continental shelf – who do
they belong to?; trade agreements; values and ethics; the fact that SA must use international law
when interpreting the bill of rights; international disasters e.g. relating to international airspace;
commercial dispute resolutions; tax agreements
Donald Trump pulled the USA out of the Paris Climate Accord
o Environmental problems see no borders; the environment belongs to everyone
International law is a lot about international agreements (contract law) – treaties and legal
principles are the law
Can you simply withdraw from an international treaty – e.g. SA government decided to withdraw
from the Rome Statute; one can only withdraw from Rome statute under very specific
circumstances; we also domesticated these laws
o Contractual questions
o SA now has a precarious relationship with the ICC – we are part of the Rome statute and
have domesticated it, but we have not adhered to it – did not apprehend Al Bashir in 2015
o This has also been debated in our domestic courts
o International law exists on two levels: treaty law (e.g. Rome Statute) and customary
international law (state practice)
o Currently in international law there is a conflict between the two: if you have contravened
the treaty (e.g. committed war crimes) you should be arrested; but states through their
practice have protected heads of state against litigation
o Our government is now trying to argue that by arresting him we would violate his immunity
as a sitting head of state in terms of customary international law
Another NB part of international law: to regulate the use of weapons of mass destruction
o Regulates the type of weapons you can produce, when and where you can use them
o Some countries are allowed to have certain weapons and others are not
o E.g. North Korea
Another issue in that country is human rights – there are NO human rights (HRs)
Venezuela: oil crisis; currency devaluation; massive inflation, food shortages and poverty
o Maduro wants to change the Constitution to circumvent the house that has the majority
opposition
o Needs an election to change the Constitution; has announced that the vote will go ahead 30
July
o The international community, UN, Secretary General have warned him not to hold the
election because the Constitution is democratically chosen
o Venezuela is the oil richest country on earth, and this is why the international community
cares so much about what happens there
o One of the poorest countries in the world too
o The international community is worried about accessing that oil
o Ruled in a socialist style; Maduro is trying to make the country even further left
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, o How is international law relevant here?
Sanctions could be imposed
DRC = Democratic Republic of Congo
o Kabila was supposed to step down after two terms at the end of 2016; did not step down,
instead he tried to change the Constitution and then he used his power to clamp down on
the electoral commission
o The electoral commission has claimed they don’t know how many people are in DRC, do not
have enough man power to hold the election – election delayed for almost 9 months
o We do not hear much about the DRC on the news
19 July 2011: South Sudan was born out of a negotiated agreement with Sudan
o African dilemma: opposing ethnic groups are in the same territories
o Colonial impact
o The Colonial powers sat down in Berlin (Berlin Conference) and divided Africa with random
borders without regard for ethnic groups, languages, etc
o This is why there are so many border conflicts and ethnic conflicts in Africa
o There is now (2017) an absolute food crisis in South Sudan
o Neither of the parties are happy about where the border lies; most of the resources lie to
the south of the border
We need to remember that international law operates on a day-to-day level
o Makes international travel possible; international communication; being able to watch
events live on TV no matter the time or location
o This is only made possible through the effective functioning of international law
What issues does International Law deal with?
Resources
Borders – cannot draw borders without negotiation
o The use of force is now prohibited
o Whereas in the past, borders were drawn after war and conquering
Security
o UN Security Council
o UN is mainly aimed at keeping international peace
Territory
Statehood
o Palestine
Self-determination: we have the right to self-determination in our Constitution
o S 237 of the Constitution
o Concept developed out of international law
o International law says that in certain circumstances, a group of people can ask for self-
determination
o Most famous case = South West Africa case (now Namibia)
Independence
Recognition
The subject matter of international law has expanded over time: the international legal system now
encompasses subject matter within its ambit that was traditionally regarded as being exclusively
within a state’s domestic jurisdiction
o E.g. treatment of a state’s own nationals and a state’s sue of its territory
o This has had repercussions for individuals: individuals are now recognised as possessing
some, albeit limited, international personality
o A further repercussion = the eroding of state sovereignty in favour of greater recognition of
HRs, which has on occasion led to some tension
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, The concept of international law
International law is not equal or similar to foreign law
Foreign law is another domestic system e.g. German law, British law, US law
International law is created by a specific set of actors, with the consent of the international
community, and is related to state interaction
E.g. s 39(1)(b) and (c) of the Constitution – difference in weight ascribed to the two
o Our courts “must have regard to international law”
o They “may have regard to foreign law”
We all live within the framework of national legal orders – we therefore tend to assume that each
legal system should be modeled on state law, or at least strongly resemble it
o The world community is unique
Failing to grasp this crucial fact leads to a serious misinterpretation of the impact of
law on this community
o We are used to a national system that addresses individuals or groups, or entities such as
corporations
o We assume that such a system has certain centralised 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 and the phenomenon of the ‘fictitious person’
National state: (usually) 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
International community: power is highly fragmented and dispersed – no one is strong enough to
impose its will on the rest
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
Grotius conceptualised the idea of international law; thought that states somehow needed to get
along
o His ideas were very Euro-centric
o The problem is that international law developed along this line of thinking for a long time
o The other problem with his principles is that they focused on guarding state sovereignty
o Sovereign states that needed to find a way to interact without using force
o Created islands of states that were almost impenetrable
o Sovereignty; non-intervention; jurisdiction (within your own territory but nowhere else) =
these are the three principles he developed
We are at a cross-roads: stuck with old principles and at the same time trying to penetrate the
absolute armour
o We don’t like the fact that we cannot interfere in another state when HR violations happen
o Old rules clashing with new ideas like human rights
One of the problems with regulating international law – there are a lot of parties involved (because
we have so many modern states)
Definitions
Old definition of international law: a body of rules governing the relations of independent states in
times of peace and war
New definition: a body of rules regulating the relations of states but also the relations of those
other legal entities which are recognised as possessing international personality
o This is an important change: not only states, but also now legal entities
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