LCP4801
OCT/NOV 2021 EXAM MEMO
SPECIFIC FOR JAN/FEB SUPP EXAMS
FOR FURTHER ASSISTANCE CONTACT
THE BOOK FOUNDATION
+27 63 980 7442
,QUESTION 1
a) Differences and similarities between international law and national law
Differences
International law National law
There is no legislator in international Complete legislative process,
law. Example: The UN does not have parliament. A parliament (as an
the power to enact rules which are instrument of national law), on the other
binding on all states. The General hand, makes laws which are fully
Assembly (GA) may only adopt binding on the community it represents.
resolutions, and these are merely In a democratic parliament the
recommendations – states cannot be members are elected by the citizens of
compelled to apply them. In the UN, the that specific state.
representatives of states are not elected
to the GA, but are appointed by their
respective states.
Has a judiciary but: Fully developed judiciary
● There is no precedent system ● Precedent system applies
● The state is a judge in its own case ● Nemo iudex in sua causa
Article 59 of the Statute of the Under the precedent system, lower
International Court of Justice (ICJ) courts are bound by the decisions of
provides that the “decision of the Court higher courts. This is the position under
has no binding force except between most, if not all, national law systems.
the parties and in respect of that The legal principle nemo iudex in sua
particular case”. The state itself decides causa applies which literally means that
whether there has been an infringement no-one should be a judge in his own
of international law, judges the matter case. The plaintiff s or accused have no
, itself, and takes whatever steps it say in who will hear their cases – there
decides on. States are also closely is a permanent body of judges,
involved in the process of appointing the magistrates, etcetera, who hear all
panel (the judges) that will hear their cases.
case.
There is no executive to enforce There is a complete executive
judgements – sanctions are poorly machinery in order to enforce
developed. There is no central judgments. Municipal judgments are
executive authority with a police force at supported by the complete executive
its disposal to enforce judgments machinery of the state in the form of a
police force, the military etc.
The subjects of international law are The subjects of national law are
generally states or international individuals or legal persons
organisations
Similarities
International law National law
Comprises accepted norms prescribing Comprises accepted norms prescribing
state behaviour behaviour
Uses writings, etc. of jurists rather than Writings of jurists and precedent are
morality freely used
Can consciously be altered by treaty Can consciously be altered by statute/
legislation
OCT/NOV 2021 EXAM MEMO
SPECIFIC FOR JAN/FEB SUPP EXAMS
FOR FURTHER ASSISTANCE CONTACT
THE BOOK FOUNDATION
+27 63 980 7442
,QUESTION 1
a) Differences and similarities between international law and national law
Differences
International law National law
There is no legislator in international Complete legislative process,
law. Example: The UN does not have parliament. A parliament (as an
the power to enact rules which are instrument of national law), on the other
binding on all states. The General hand, makes laws which are fully
Assembly (GA) may only adopt binding on the community it represents.
resolutions, and these are merely In a democratic parliament the
recommendations – states cannot be members are elected by the citizens of
compelled to apply them. In the UN, the that specific state.
representatives of states are not elected
to the GA, but are appointed by their
respective states.
Has a judiciary but: Fully developed judiciary
● There is no precedent system ● Precedent system applies
● The state is a judge in its own case ● Nemo iudex in sua causa
Article 59 of the Statute of the Under the precedent system, lower
International Court of Justice (ICJ) courts are bound by the decisions of
provides that the “decision of the Court higher courts. This is the position under
has no binding force except between most, if not all, national law systems.
the parties and in respect of that The legal principle nemo iudex in sua
particular case”. The state itself decides causa applies which literally means that
whether there has been an infringement no-one should be a judge in his own
of international law, judges the matter case. The plaintiff s or accused have no
, itself, and takes whatever steps it say in who will hear their cases – there
decides on. States are also closely is a permanent body of judges,
involved in the process of appointing the magistrates, etcetera, who hear all
panel (the judges) that will hear their cases.
case.
There is no executive to enforce There is a complete executive
judgements – sanctions are poorly machinery in order to enforce
developed. There is no central judgments. Municipal judgments are
executive authority with a police force at supported by the complete executive
its disposal to enforce judgments machinery of the state in the form of a
police force, the military etc.
The subjects of international law are The subjects of national law are
generally states or international individuals or legal persons
organisations
Similarities
International law National law
Comprises accepted norms prescribing Comprises accepted norms prescribing
state behaviour behaviour
Uses writings, etc. of jurists rather than Writings of jurists and precedent are
morality freely used
Can consciously be altered by treaty Can consciously be altered by statute/
legislation
