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LCP4801 NOTES 2021
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- University Of South Africa (Unisa)
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LCP4801 INTERNATIONAL LAWNOTES
, LCP4801- INTERNATIONAL LAW
THE LEGAL NATURE OF PUBLIC INTERNATIONAL LAW (PIL)
CHAPTER 1:
Theories of public International law:
Natural law:
De Groot:
❖ The idea of law is that it universal, it isn’t something which is made but it
is discovered – it comes from the idea of god, nature etc
❖ Man made law must be done according the natural law = which is the
idea that a pre political set of rules must be established in order to
guide human laws
❖ Law and morality aren’t separated = the state has a moral
function
❖ This law is binding on both the state and the individual = state isn’t
above the law.
❖ Such law applies automatically and doesn’t require consent.
This theory uses reason and allows the law to be applied in a flexible way, in
that it can be adapted to changing circumstances.
TODAY: it has an influence on Human Rights
Examples of the use of natural law in International law:
❑ One of the sources of international law = GENERAL PRINCIPLES OF
LAW: these are used by international tribunals where there are no
rules of treaty or custom, they allow the court to look at common
principles found in a municipal system to fill in the gaps in international
law = don’t have consensus as a basis = similar to the use of S39 in SA
domestic courts
❑ Ius cogens – which is an obligatory rule from which no deviation is
allowed and which is binding on states, even if they don’t consent
❑ Erga omnes: is an obligation which a state owes to the international
community as a whole = all states have an interest
,Positivism:
Van Bynkershoek:
❖ This is the idea that law is determined by the state = the focus is on
positive man made rules
❖ The state creates international law by CONSENT = they are
bound by the laws to which they have consented.
❖ There is a complete separation between law and morals
E.g. if a country persistently object in the development of an international
custom they are NOT bound – based on consent
The problem with this is that the state isn’t bound by any higher law = no
moral constitution = they separate law and morals
This theory was used as the basis for nazi Germany and could be said for
apartheid SA = Dugard blamed positivism for the mechanical interpretation of
laws by apartheid judges = stated that judges hid their racist beliefs behind the
formality of the law.
This theory provides clear guideline on what the law is.
In terms of both custom and treaty = a state is only bound if they consent.
With a treaty one of the requirements is consensus between the parties –
agreement which creates rights and duties and is governed by
international law.
, Sources of international law:
A38 of the ICJ:
1. International conventions = treaty
2. International custom
3. General principles of law recognized by civilized nations
4. Judicial decisions and teachings
General principles of law: aren’t found in the basis of consent but in some
higher order = natural law
= Unjust enrichment
= Estoppel
Judicial decisions: subsidiary way to determine the law = they can’t be
used to create international legal rules BUT can be used to ascertain what
the law is.
Soft law: non-binding GA resolutions and the opinion of writers Useful
in the interpretation and development of hard law.
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