Summary

Summary PBL 320: EVERYTHING FOR SEMESTER TEST 2 (2023) - NATIONAL AND INTERNATIONAL LAW + INTERNATIONAL ORGANIZATIONS + RECOGNITION OF STATES AND GOVERNMENTS + JURISDICTION + IMMUNITY

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Course
PBL 320 (PBL320)

Institution
University Of Pretoria (UP)

INCLUDES:(LECTURE NOTES + CASE LAW + LEGISLATION)

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Uploaded on January 16, 2024
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Written in 2023/2024
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pbl 320

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NATIONAL LAW AND INTERNATIONAL LAW

Theories

Monism

- Don’t need to adopt IL to apply it.

Dualism

- IL needs to be adopted to apply.

Harmonization

- IL conflicts with NL domestically  NL applies.

- IL conflicts with NL internationally  IL applies.

The Constitution & CIL

Before Consti

- Consti did not make provision for IL.

- Courts applied a stricter test than IL for proving CIL

DU TOIT v KRUGER CIL rule to apply

- Universally accepted.

NDULI CIL rule to apply

- Universal recognition.

INTER-SCIENCE Correct approach

RESEARCH - Does not need universal recognition.

S v PETANE CIL rule to apply

- Widely accepted.

,Under Consti

- S232  CIL forms part of NL unless inconsistent with Consti or legi

o Compels court to:

(1) Determine existence of CIL rule.

(2) Determine whether rule is consistent with Consti or legi.

o IL trumps common law and judicial decisions.

- S233  when interpreting legi the court must prefer an interpretation

consistent with IL.

- Minister of Justice v SALC  role of courts

o Ascertain and apply CIL  not develop it.

Domesticating treaties

3 steps  Set out in Glenister case

1. National executive negotiates and signs the treaty

- Does not automatically bind SA unless: NAR
o It is of a T / A / E nature  s231(3).

2. Approval by resolution of Parliament

- Does not make it NL unless:

o It is a self-executing agreement  s231(4).

- SA incurs liability if it doesn’t observe the treaty.

3. Ratification

- Treaty becomes NL

o Enjoys same status as other legi unless parliament makes it superior.

, Withdrawal from a treaty

Democratic Alliance case

- S231  executives’ powers to enter into treaties does not translate into

powers to withdraw from them

o Withdrawal = ratification.

o S231(2)  withdrawal needs approval from Parliament (SoP).

Treaties of T / A / E nature

Earth Life case

- Agreements of routine nature flowing from daily activities of government

activities.

- Come into force by signature  don’t need ratification

o No approval from Parliament.

- BUT s231(3)  agreement must be tabled in NA and NCoP within reasonable

time.

Self-executing treaties

Quagliani case

- S231(4) Consti  self-executing treaties approved by parliament do not have

to be enacted into NL to apply.

- Court did not see need to define “self-executing treaty” because the EA sets

out enforcement for the agreement

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Summary

Summary PBL 320: EVERYTHING FOR SEMESTER TEST 2 (2023) - NATIONAL AND INTERNATIONAL LAW + INTERNATIONAL ORGANIZATIONS + RECOGNITION OF STATES AND GOVERNMENTS + JURISDICTION + IMMUNITY

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