LCP4801
NOTES
, Critical Law Studies CC © 1
International Law Notes – Semester 1 2018
INTERNATIONAL LAW NOTES
THE HISTORY AND DEVELOPMENT OF INTERNATIONAL LAW
Definition of international law: in the wide sense it the law that
applies between states – international law regulates the external
relations between states.
States are subjects of international law and the relations that they
have with one another may be either bilateral (one state with another)
or multilateral (several states cooperate with each other or as an
international organisation (IO))
History of international law:
1400’s: the collapse of feudalism, the Renaissance and the
reformation resulted in the emergence of entities that existed
independently from the people who were running them = states were
born.
States as distinct territories, was the master of its own territory – thus
a state was sovereign
Between 1500 – 1648: Westphalian system – international order
consisting mainly of independent sovereign states, which exercised
authority within their territories and freely co-ordinated their mutual
relations in accordance with their interests in a daily basis of equality.
The sovereign equality of states and the idea that all states are equal
and are entitled to the same respect are today still the aim of
international law.
The following trends have developed in international law in time:
• International law, is the law between states and is linked to
state sovereignty
• The idea of an international organization as an entity distinct
from its member’s
• The individual as a quasi – subject of international law
developed due to 2 world wars, the emancipation of colonial
territories and the need of the individual for the
acknowledgement of human rights and the right to self
determination
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
, Critical Law Studies CC © 2
International Law Notes – Semester 1 2018
THE LEGAL NATURE OF PUBLIC 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. Judicial decisions include decisions of the
ICJ, other international courts and tribunals, as well as national
courts. Precedent doesn’t apply in international adjudiciation
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
Jus cogens: defined in VC as:
Obligatory rule of general international law which is accepted and
recognized by the community of states as a whole as a rule from
which no deviation is allowed and which can be altered only by
another rule or norm of the same kind.
Jus cogens is absolutely binding on states whether they like it or not.
The only rule generally accepted as ius cogens = prohibition on the
use of force. A treaty which conflicts with an existing norm of ius
cogens is void ab initio.
Sources falling outside A38:
Resolutions of political organs of the UN:
The GA isn’t authorised to take binding decisions with regards to
matters that relate to the purpose and principles of the organisation,
binding decisions are only possible with regard to internal matters of
the organisation (admission, suspension and expulsion of members).
GA resolutions although not legally binding can play a role in the
development of international law. They may provide evidence of the
opinion of governments expressed in statements about them and in
voting patterns for or against suchresolutions
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
, Critical Law Studies CC © 3
International Law Notes – Semester 1 2018
SC Resolutions: the SC has the primary function to maintain
international peace and security and resolutions taken for this
purpose are binding on all members of the organisation
TRADITION: international law is based on the sovereignty of a state
and is a body of rules based on CONSENT.
BUT there is a need to create a value system: Jus Cogens – are
obligations from which there can be no derogoration
Obligations erga omnes: are obligations, which the state owes to the
international community as a whole and in the enforcement of which
all states have an interest
JUS COGENS OBLIGATIONS ERGA OMNES
Obligatory rule of general Response to the South West
international law which is Africa cases: in which the ICJ
accepted and recognized by the denies legal standing to Ethiopia
community of states as a whole as and Liberia to enforce an
a rule from which no deviation is obligation owed to the
allowed and which can be altered international community –
only by another rule or norm of namely the obligation on the part
the same kind. of the SA government to promote
Prohibits aggression and a the material and moral well being
widespread view on the of the social process of people in
prohibition of slavery, genocide, SWA
racial discrimination, torture,
denial of human rights =
peremptory norms
(ICJ recognized the prohibition on
genocide and racial
discrimination were peremptory
norms in DRC v Rwanda in 2006
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
NOTES
, Critical Law Studies CC © 1
International Law Notes – Semester 1 2018
INTERNATIONAL LAW NOTES
THE HISTORY AND DEVELOPMENT OF INTERNATIONAL LAW
Definition of international law: in the wide sense it the law that
applies between states – international law regulates the external
relations between states.
States are subjects of international law and the relations that they
have with one another may be either bilateral (one state with another)
or multilateral (several states cooperate with each other or as an
international organisation (IO))
History of international law:
1400’s: the collapse of feudalism, the Renaissance and the
reformation resulted in the emergence of entities that existed
independently from the people who were running them = states were
born.
States as distinct territories, was the master of its own territory – thus
a state was sovereign
Between 1500 – 1648: Westphalian system – international order
consisting mainly of independent sovereign states, which exercised
authority within their territories and freely co-ordinated their mutual
relations in accordance with their interests in a daily basis of equality.
The sovereign equality of states and the idea that all states are equal
and are entitled to the same respect are today still the aim of
international law.
The following trends have developed in international law in time:
• International law, is the law between states and is linked to
state sovereignty
• The idea of an international organization as an entity distinct
from its member’s
• The individual as a quasi – subject of international law
developed due to 2 world wars, the emancipation of colonial
territories and the need of the individual for the
acknowledgement of human rights and the right to self
determination
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
, Critical Law Studies CC © 2
International Law Notes – Semester 1 2018
THE LEGAL NATURE OF PUBLIC 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. Judicial decisions include decisions of the
ICJ, other international courts and tribunals, as well as national
courts. Precedent doesn’t apply in international adjudiciation
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
Jus cogens: defined in VC as:
Obligatory rule of general international law which is accepted and
recognized by the community of states as a whole as a rule from
which no deviation is allowed and which can be altered only by
another rule or norm of the same kind.
Jus cogens is absolutely binding on states whether they like it or not.
The only rule generally accepted as ius cogens = prohibition on the
use of force. A treaty which conflicts with an existing norm of ius
cogens is void ab initio.
Sources falling outside A38:
Resolutions of political organs of the UN:
The GA isn’t authorised to take binding decisions with regards to
matters that relate to the purpose and principles of the organisation,
binding decisions are only possible with regard to internal matters of
the organisation (admission, suspension and expulsion of members).
GA resolutions although not legally binding can play a role in the
development of international law. They may provide evidence of the
opinion of governments expressed in statements about them and in
voting patterns for or against suchresolutions
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
, Critical Law Studies CC © 3
International Law Notes – Semester 1 2018
SC Resolutions: the SC has the primary function to maintain
international peace and security and resolutions taken for this
purpose are binding on all members of the organisation
TRADITION: international law is based on the sovereignty of a state
and is a body of rules based on CONSENT.
BUT there is a need to create a value system: Jus Cogens – are
obligations from which there can be no derogoration
Obligations erga omnes: are obligations, which the state owes to the
international community as a whole and in the enforcement of which
all states have an interest
JUS COGENS OBLIGATIONS ERGA OMNES
Obligatory rule of general Response to the South West
international law which is Africa cases: in which the ICJ
accepted and recognized by the denies legal standing to Ethiopia
community of states as a whole as and Liberia to enforce an
a rule from which no deviation is obligation owed to the
allowed and which can be altered international community –
only by another rule or norm of namely the obligation on the part
the same kind. of the SA government to promote
Prohibits aggression and a the material and moral well being
widespread view on the of the social process of people in
prohibition of slavery, genocide, SWA
racial discrimination, torture,
denial of human rights =
peremptory norms
(ICJ recognized the prohibition on
genocide and racial
discrimination were peremptory
norms in DRC v Rwanda in 2006
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
