1
INTERNATIONAL SUMMARY
SOURCES OF INTERNATIONAL LAW
ARTCLE 38(1) OF THE STATUTE OF THE ICJ
1. International conventions = treaty
2. International custom
3. General principles of law recognized by civilized nations: aren’t found in the basis of consent but in some higher order = natural law
= Unjust enrichment
= Estoppel
4. Soft law: Judicial decisions and teaching
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 international law which is accepted and Response to the South West Africa cases: in which the ICJ denies
recognized by the community of states as a whole as a rule from legal standing to Ethiopia and Liberia to enforce an obligation owed to
which no deviation is allowed and which can be altered only by the international community – namely the obligation on the part of
another rule or norm of the same kind. the SA government to promote the material and moral well being of
Prohibits aggression and a widespread view on the prohibition of the social process of people in SWA
slavery, genocide, 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
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TREATY
The classic definition of a treaty is found in Article 2(1)(a) of the VC, which provides that a treaty is:
An international agreement concluded between states in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation.
South Africa: HARKSEN: Definition: a treaty is an oral/written agreement between public international law subjects (states and
international organizations), which creates reciprocal rights and duties and is governed by international law.
Harksen: the term ‘‘international agreement’’ was wider than the term ‘‘treaty’’ and included informal agreements betwee n states. In terms of
the Constitutional Court decision, therefore, ‘‘international agreement’’ as occurring in section 231 is to be understood to mean ‘‘treaty’’ as
defined in Article 2(1) of the Vienna Convention on the Law of Treaties (VC).
In terms of the Vienna Convention:
A1: VC applies to treaties between states
A2: treaties between states must be in writing
A3: agreements between PIL subjects (includes International Organizations) are valid and can be oral
A5: VC applies to treaties establishing IO
A80: treaty must be registered with the UN = can’t register an oral treaty
A102 of ICJ: Only registered treaties can be brought before the ICJ
Requirements for a treaty Who can conclude a treaty/CONSENT?
1. Consent Municipal law says who can enter into binding treaties.
2. Parties must be competent In the VC:
3. Create reciprocal rights and duties 1. A7 (2): states that the following people are presumed to bind the state:
4. Governed by international law Head of state (SA president)
Head of government (SA President)
Minister of foreign affairs
Head of a diplomatic mission (diplomat or consul)
State representative at a treaty making conference
Assumed to have power = bind the state by signature
2. If the treaty isn’t concluded by someone mentioned in A7 (1) = they need to
produce full powers = exchange of instruments: written authorization from a
state that the person has authority to bind the state
3. Ratification: state consents to being bound on an international level
4. Accession: state which isn’t a party to a treaty can become a party
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TREATY: VOID OR VOIDABLE
VOID treaty: VOIDABLE treaty:
1. Error: must have been an error with regard 1. Fulfill obligations
to a material fact and they must not have 2. Treaty provision
contributed to the error 3. Consent
2. Fraud: induced to contract by the fraud of 4. Unilateral repudiation
the other party 5. Concluding a new treaty
3. Corruption: corruption by a state 6. Breach – must be material
representative 7. Impossibility of performance: the object needed to fulfill the treaty must be
4. Coercion: acts or threats against the permanently destroyed – can’t be the fault of the party raising impossibility. If
representative the thing isn’t permanently destroyed the treaty is the suspended
5. Force: coercion of the state by a threat or 8. Rebus sic stantibus: fundamental change in circumstances = look at the
use of force circumstances at the time of the treaty – these must have changed and it can’t
6. Ius Cogens: obligatory rule of international have been foreseen by the parties
law which is accepted by states as a whole, General Rule: a change in circumstances doesn’t give a right to terminate the
from which no deviation is allowed and it treaty except:
can’t be changed by a similar rule. Where the existence of the circumstances were essential for the treaty
ABSOLUTLY BINDING – e.g. the prohibition Where the change effects the obligations
on the use of force 9. War – look at the nature of the treaty - Treaty of friendship is suspended or
terminated BUT Treaty on the treatment of prisoners of war remains in force
Ius Cogens: where a new is covens is developed = all the performance under the treaty
is valid BUT there can be no further performance.
TREATY CASES
Quagliani involved an extradition treaty validly concluded between South Africa and the United States of America.
This treaty had not been incorporated into our law by legislation. Therefore, in terms of section 231(4), the treaty could no t be used by the
courts unless it was found to be self-executing.
Harksen case: S3 (2) of the Extradition Act – authorized the president to consent to the extradition of a person to a state with which SA had
no extradition agreement
If this amounted to an international agreement = the procedure for the adoption of an international agreement under S231 (2) should be
followed.
, 4
FINAL CONSTITUTION: S231
To be binding on an international level: To be binding on a municipal level (in SA court):
1) National executive still negotiates and signs 4) Agreement = law in SA when it’s enacted into law by national legislation. (Dualism)
2) To bind the state internationally = - Schedule to an Act - Diplomatic Privileges and Immunities Act 37 of 2001
parliamentary approval - Rewritten into an Act - Civil Aviation Offences Act 10 of 1972
3) Agreement which is technical, administrative - Published in the government gazette – extradition act
or executive or doesn’t need ratification/ BUT:
accession binds Republic = (element of monism A self executing provision which is agreed by parliament is law in SA automatically unless
because it applies automatically and dualism its inconsistent with the constitution/ legislation (monism as it applies automatically and
because it needs to be in terms of the dualism because it needs to be in line with the constitution)= mixed approach
constitution) BUT must be tabled in Parliament S231 (4) = looks at a self-executing provision in a treaty.
in a reasonable time A self-executing treaty only applies to treaties approved by parliament = excludes S231 (3)
= executive, administrative, technical treaty or a treaty which requires accession or
ratification.
TO DETERMINE IF SELF EXECUTING
The judge must determine: If it needs parliamentary approval OR If it falls into S231 (3)
THEN look at the intention of the parties and the surrounding circumstances
See if the treaty has a provision which requires legislation to make it apply on a municipal
level = not self executing
See if it conflicts with the constitution/legislation
INFORMAL AGREEMENTS:
The 1996 constitution used the term international agreement
Question: is this wide enough to include both legally binding agreements (treaty) and non-binding informal agreements?
HARKSEN: S3 (2) of the Extradition Act – authorized the president to consent to the extradition of a person to a state with which SA had no
extradition agreement
If this amounted to an international agreement = the procedure for the adoption of an international agreement under S231 (2) should be
followed.
The CC rejected the argument that S3 (2) of the Act could be categorized as either an international agreement or an informal agreement.
View is: an international agreement in S231 is a TREATY and refers to a legally binding enforceable agreement under A2 of the Vienna
Convention.
What is important is that it’s an agreement between states, in writing and governed by international law
INTERNATIONAL SUMMARY
SOURCES OF INTERNATIONAL LAW
ARTCLE 38(1) OF THE STATUTE OF THE ICJ
1. International conventions = treaty
2. International custom
3. General principles of law recognized by civilized nations: aren’t found in the basis of consent but in some higher order = natural law
= Unjust enrichment
= Estoppel
4. Soft law: Judicial decisions and teaching
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 international law which is accepted and Response to the South West Africa cases: in which the ICJ denies
recognized by the community of states as a whole as a rule from legal standing to Ethiopia and Liberia to enforce an obligation owed to
which no deviation is allowed and which can be altered only by the international community – namely the obligation on the part of
another rule or norm of the same kind. the SA government to promote the material and moral well being of
Prohibits aggression and a widespread view on the prohibition of the social process of people in SWA
slavery, genocide, 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
, 2
TREATY
The classic definition of a treaty is found in Article 2(1)(a) of the VC, which provides that a treaty is:
An international agreement concluded between states in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation.
South Africa: HARKSEN: Definition: a treaty is an oral/written agreement between public international law subjects (states and
international organizations), which creates reciprocal rights and duties and is governed by international law.
Harksen: the term ‘‘international agreement’’ was wider than the term ‘‘treaty’’ and included informal agreements betwee n states. In terms of
the Constitutional Court decision, therefore, ‘‘international agreement’’ as occurring in section 231 is to be understood to mean ‘‘treaty’’ as
defined in Article 2(1) of the Vienna Convention on the Law of Treaties (VC).
In terms of the Vienna Convention:
A1: VC applies to treaties between states
A2: treaties between states must be in writing
A3: agreements between PIL subjects (includes International Organizations) are valid and can be oral
A5: VC applies to treaties establishing IO
A80: treaty must be registered with the UN = can’t register an oral treaty
A102 of ICJ: Only registered treaties can be brought before the ICJ
Requirements for a treaty Who can conclude a treaty/CONSENT?
1. Consent Municipal law says who can enter into binding treaties.
2. Parties must be competent In the VC:
3. Create reciprocal rights and duties 1. A7 (2): states that the following people are presumed to bind the state:
4. Governed by international law Head of state (SA president)
Head of government (SA President)
Minister of foreign affairs
Head of a diplomatic mission (diplomat or consul)
State representative at a treaty making conference
Assumed to have power = bind the state by signature
2. If the treaty isn’t concluded by someone mentioned in A7 (1) = they need to
produce full powers = exchange of instruments: written authorization from a
state that the person has authority to bind the state
3. Ratification: state consents to being bound on an international level
4. Accession: state which isn’t a party to a treaty can become a party
, 3
TREATY: VOID OR VOIDABLE
VOID treaty: VOIDABLE treaty:
1. Error: must have been an error with regard 1. Fulfill obligations
to a material fact and they must not have 2. Treaty provision
contributed to the error 3. Consent
2. Fraud: induced to contract by the fraud of 4. Unilateral repudiation
the other party 5. Concluding a new treaty
3. Corruption: corruption by a state 6. Breach – must be material
representative 7. Impossibility of performance: the object needed to fulfill the treaty must be
4. Coercion: acts or threats against the permanently destroyed – can’t be the fault of the party raising impossibility. If
representative the thing isn’t permanently destroyed the treaty is the suspended
5. Force: coercion of the state by a threat or 8. Rebus sic stantibus: fundamental change in circumstances = look at the
use of force circumstances at the time of the treaty – these must have changed and it can’t
6. Ius Cogens: obligatory rule of international have been foreseen by the parties
law which is accepted by states as a whole, General Rule: a change in circumstances doesn’t give a right to terminate the
from which no deviation is allowed and it treaty except:
can’t be changed by a similar rule. Where the existence of the circumstances were essential for the treaty
ABSOLUTLY BINDING – e.g. the prohibition Where the change effects the obligations
on the use of force 9. War – look at the nature of the treaty - Treaty of friendship is suspended or
terminated BUT Treaty on the treatment of prisoners of war remains in force
Ius Cogens: where a new is covens is developed = all the performance under the treaty
is valid BUT there can be no further performance.
TREATY CASES
Quagliani involved an extradition treaty validly concluded between South Africa and the United States of America.
This treaty had not been incorporated into our law by legislation. Therefore, in terms of section 231(4), the treaty could no t be used by the
courts unless it was found to be self-executing.
Harksen case: S3 (2) of the Extradition Act – authorized the president to consent to the extradition of a person to a state with which SA had
no extradition agreement
If this amounted to an international agreement = the procedure for the adoption of an international agreement under S231 (2) should be
followed.
, 4
FINAL CONSTITUTION: S231
To be binding on an international level: To be binding on a municipal level (in SA court):
1) National executive still negotiates and signs 4) Agreement = law in SA when it’s enacted into law by national legislation. (Dualism)
2) To bind the state internationally = - Schedule to an Act - Diplomatic Privileges and Immunities Act 37 of 2001
parliamentary approval - Rewritten into an Act - Civil Aviation Offences Act 10 of 1972
3) Agreement which is technical, administrative - Published in the government gazette – extradition act
or executive or doesn’t need ratification/ BUT:
accession binds Republic = (element of monism A self executing provision which is agreed by parliament is law in SA automatically unless
because it applies automatically and dualism its inconsistent with the constitution/ legislation (monism as it applies automatically and
because it needs to be in terms of the dualism because it needs to be in line with the constitution)= mixed approach
constitution) BUT must be tabled in Parliament S231 (4) = looks at a self-executing provision in a treaty.
in a reasonable time A self-executing treaty only applies to treaties approved by parliament = excludes S231 (3)
= executive, administrative, technical treaty or a treaty which requires accession or
ratification.
TO DETERMINE IF SELF EXECUTING
The judge must determine: If it needs parliamentary approval OR If it falls into S231 (3)
THEN look at the intention of the parties and the surrounding circumstances
See if the treaty has a provision which requires legislation to make it apply on a municipal
level = not self executing
See if it conflicts with the constitution/legislation
INFORMAL AGREEMENTS:
The 1996 constitution used the term international agreement
Question: is this wide enough to include both legally binding agreements (treaty) and non-binding informal agreements?
HARKSEN: S3 (2) of the Extradition Act – authorized the president to consent to the extradition of a person to a state with which SA had no
extradition agreement
If this amounted to an international agreement = the procedure for the adoption of an international agreement under S231 (2) should be
followed.
The CC rejected the argument that S3 (2) of the Act could be categorized as either an international agreement or an informal agreement.
View is: an international agreement in S231 is a TREATY and refers to a legally binding enforceable agreement under A2 of the Vienna
Convention.
What is important is that it’s an agreement between states, in writing and governed by international law
