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LCP4801 Summarised Study Notes BEST GUIDE 2022

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Exam of 61 pages for the course LCP4801 - International Law at University of South Africa (SUMMARRY GUIDE)

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  • September 15, 2022
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  • 2022/2023
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LCP4801 Summarised Study Notes
BEST GUIDE 2022

,LCP4801

NOTES

, 1

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:
2


 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.

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