Exam (elaborations)
Exam (elaborations) LCP4807 - International Human Rights Law (LCP4807)
- Institution
- University Of South Africa (Unisa)
INTERNATIONAL HUMAN RIGHTS LAW MAY/JUNE EXAMINATION ANSWER SCRIPT.
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LCP 4807 ASSESSMENT 03(PORTFOLIO EXAM)
MAY/JUNE EXAMINATION
PERIOD
SUPERVISORS: Ms MS Mooki
and Adv SP Makama
30th May- 01 June
2022
,QUESTION 1
1.1
➢ Sovereignty role and erosion of sovereignty
Sovereignty under Public International Law entails that states are independent and
sovereign in the sense that they are entitled to regulate their internal affairs without
any foreign interference.1
International Human Rights Law however, erodes the absolute nature of
sovereignty as it is a treaty-based law. Entering or ratifying multilateral treaties
means that states allow their sovereignty to be encroached on or limited. One of the
effects of a treaty between parties, is pacta sunt servanda, 2 which means that
treaties must be complied with in good faith. Under many human rights treaties,
states accept the competence of independent international bodies to supervise their
compliance with the treaties.3 States sometimes allow nationals to bring complaints
against them before the implementing mechanisms of treaties, such as national
bodies of independent experts created under treaties.4
➢ The relationship between Public International law and the Municipal Law
The relationship between international law and national law poses two major
questions.5
1. Can norms of international law be invoked as part of a municipal
(domestic/national) legal system?
2. If so, what is the relative weight of the international system and the municipal
system?6
Two approaches to the relationship between international law and national law
usually play a major role in the implementation of International Law at the
domestic/municipal level. These approaches are dualism and monism.7
1 Mooki M, International Human Rights Law: Only study guide for LCP4807 (University of South
Africa 2019).
2 Mooki International Human Rights Law.
3 Mooki International Human Rights Law.
4 Mooki International Human Rights Law.
5 Mooki International Human Rights Law.
6 Mooki International Human Rights Law.
7 Mooki International Human Rights Law.
, ⚫ Dualism: In this approach international law and domestic law are described to
be fundamentally different. Public International Law does not apply directly in
domestic law, however it may apply after being “transformed” or incorporated
into domestic law by legislation. 8 Transformation requires amendments to
existing laws or the adoption of new domestic legislation in line with a treaty.
Incorporation entails the wholesale inclusion of a treaty into national laws. 9
An example of a dualist country is Britain as well as in South Africa.
⚫ Monism: This approach does not differentiate international law from domestic
law and considers the two laws as two aspects of the same law. Therefore,
international law becomes part of national law upon ratification. There is no
need for “enabling legislation’” to be enacted by parliament to give a treaty effect
in domestic law.
The monist approach is usually adopted by Francophone countries.
➢ Subsidiary
Subsidiarity refers to the co-existence between International Human Rights Law and
domestic law in such a way it is complemented without replacing it. States have the
primary responsibility for protecting human rights law but should do so in line with
international law. The principle of subsidiarity plays a role in several ways. 10
Under the European human rights system, the European Court of Human Rights
(ECtHR) developed the concept “margin of appreciation”, in terms of which the
ECtHR grants states some degree of latitude in matters relating to the balancing of
individual and public interests, especially when moral issues are involved. 11
Subsidiarity is also reflected in the requirement of exhaustion of local remedies in
the sense that where a treaty allows an individual to complain against the state, the
state must first be given notice of the violation in question so that it can enforce its
obligations.12
8
Mooki International Human Rights Law.
9
Mooki International Human Rights Law.
10
Mooki International Human Rights Law.
11
Mooki International Human Rights Law.
12
Mooki International Human Rights Law.
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