International law term 1
INTRODUCTION
International law is general taken to be a system of rules governing
relations among states. The regulation of international relations has its
origins in antiquity. It is a unique, self-sustaining system. A feature clearly
distinguishing international law from nearly all systems of municipal law is
its primary source in custom. Custom operates to produce binding norms
from certain accepted actions.
Natural law = what nature instilled in all animals (such as the will to
procreate and to care for the young), together with what natural reason
had established among all humans. A major difference between natural
law and what was then called the law of nations was that natural law
stated that all men are free and the law of nations ruled that slavery was
permitted.
The system of International Law in the form we know today began in
1648, when the powers of Western Europe put an end to the war of thirty
years in Germany. In spite of the growing diversity of international law
after this date, international law in the nineteenth century continued to be
determined by the interests of the Western Powers.
It was soon believed that the only solution to war was an international
organization with some form of supranational authority à Charter of the
United Nations. Largely because of the UN, international cooperation has
become the norm, not the exception, whether in matters of peace and
security, human rights, the environment or the more prosaic (straight-
forward) aspects of interstate relations.
In less formal terms, however, the growing volume of international
regulation is largely as a result of the phenomenon of globalization =
international integration, cooperation and interdependence, processes
that have been driven mainly by the imperatives of national economies.
Globalization is a process that is constantly evolving in response to
external pressures, and these pressures have an inevitable impact on
international law.
,Hegemonic globalization = the spread of general or universal standards,
which are all too often merely a guise for Western domination and the
economic exploitation of subordinate nations and cultures.
Counter-hegemonic globalization = the laws that arise to protect such
matters as indigenous knowledge and minority rights.
International law must find a balance between hegemony and
undiscriminating acceptance of other normative orders.
Why do South African Lawyers need to study International Law?
International Law is a fundamental part of the South African legal system
in general. In many sections of the South African Constitution,
International law is given a prominent role: section 39 and 231-233.
International Law is given a prominent role in the domestic law sphere in
South Africa. International Law has played a really important role in South
African courts. You cannot fully understand South African law without
understanding International Law.
International Law played a very important role in the fall of the Apartheid
regime in South Africa. International opposition was based, in large, on
International Law. Thus, it played a crucial role in International Support
against the Apartheid regime.
What is International Law?
• International Law can be said to be a set of rules and principles that
bind States in their relations with one another. The important aspect is
that these are rules that bind states in their interaction with other
states.
• It can concern an almost infinite variety of issues. It concerns human
rights, trade, the environment, out of space, territorial boundaries,
prosecutions for international crimes.
• International law can be general (applies to every state in the world)
and regional law (applies only within a particualr region of the world).
• Most domestic legal systems have a legislature, excutive and judiciary.
The international system, on the other hand, is very different. There is
no central legislature.
• Non-hierarchical
• Based on State consent
Domestic Law
, Governmnet
Enforced by police and
judiciary
Natural and Legal Persons
Domestic law states, there is a central government that is responsible for
making the law, which is enforced by the police and judiciary.
International Law
State A State B State C
International law operates on the basis of a horizontal, decentralised
system of authority. The rules that bind states are created by the states
themselves. The people that make the rules are also the people that are
bound by the rules of International Law. Every state in the world has the
opportunity to participate in the creation of International law.
Thus, there is a stark contrast between the horizontal, decentralised
system of law (International) as opposed to a vertical, centralised system
of law (Domestic).
Sources of International Law
The sources of International Law are listed in Article 38(1) Statute of the
International Court of Justice:
, a. International conventions (treaties e.g. UN Charter – similar to a
contract)
b. International custom (customary International law – based on what
states actually do in their practice)
c. General principles of law recognised by civilised nations
d. Judicial decisions and teachings of the most highly qualified publicists
* The most important sources are treaties and customary international
law.
Enforcement of International Law
What happens if a rule of international law is breached? There is no
international police force or army to enforce International Law. Thus, what
avenues actually exist? Instead of there being an army or police force, the
states also have to be the enforcers of international law. Thus, it is up to
the states to obtain some sort of remedy.
1. State Responsibility – when a state breaches international law, the
victim can pursue a claim to correct the action that breached the
international law. E.g. if SA had a treaty with Zimbabwe that South
Africa breached, then SA would incur international responsibility. The
claim is then against South Africa, and not against an individual
(such as the President).
- Civil law claims, not criminal.
- State vs State, not against an individual.
2. Courts
- International Courts – the main court is the International Court of
Justice. They can deal with any question.
- Foreign Domestic Courts – this can be done to a limited extent.
Claims of state immunity often prevents courts from hearing
matters.
- Precedent
3. Remedies
- Civil law remedies – compensation; restitution; apologies
- Non-forcible counter-measures
- UN Security Council sanctions – can take measures when states
have breached International law. The Security Council has special
rights to impose sanctions.
- Use of force?
International Organisations
