1
PUBLIC INTERNATIONAL LAW
QUESTIONS AND ANSWERS
SOURCES OF INTERNATIONAL LAW:
QUESTION 1:
It has been said that international law is not a democratic system
and is run by a certain number of states that control the
application of the law. Do a comparison between a democratic
state and international law.
Public International Law Municipal Law
1. No legislature – no body to 1. Full legislature: there is a
make international law – the democratically elected
only body is the GA, who parliament who makes
can make non-binding binding laws
recommendations and isn’t 2. Fully developed judiciary =
democratically elected precedent and nemo iudex
2. No Court to apply 3. Full executive = president
international law – no and permanent police force
precedent and the state is a 4. Subjects: natural and
judge in its own case = ICJ juristic people
3. No executive to enforce
international law = no
permanent police force = SC
4. Subjects: states and
international organizations
QUESTION 2:
What is a ius cogens and what’s its importance with regard to
treaties:
Ius 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. Ius 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.
, 2
QUESTION 3:
What is soft law and what is its influence on the Constitution?
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
Should be understood to include all the sources, which do not
traditionally give, rise to enforceable law such as i.e. opinions of
writers and the non-binding resolutions of the GA.
Carmichele: in the process of developing the common law in terms of
S39 (2) the constitutional court referred to the decisions of the
European court of human rights and the European convention on
human rights. Therefore it appears that international law is also
relevant when courts are developing the common law to reflect the
spirit, purport and object of the Bill of Rights.
Human Rights are no longer just a domestic concern.
The application of Human Rights in SA law is controlled by SA law.
QUESTION 4:
In terms of article 38 of the ICJ: name and explain the 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.
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
, 3
QUESTION 5:
Define ius cogens
Ius 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.
Ius 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.
, 4
INTERPRETATION OF TREATIES:
QUESTION 1:
In a SA court a judge is required to interpret the provisions of a
treaty, give him the rules required in international law, on the
valid interpretation of treaties:
Interpretation of treaties:
2 ways to interpret:
1) Textual approach – look at the ordinary
meaning of the words (SW Africa)
2) Purposive – interpret in accordance with the
purpose of the treaty
VC: Combines the 2 in A31: states that treaties must be interpreted
in good faith and in accordance with the ordinary meaning of the
words (textual), used in context (purposive) = looking at the purpose of
the treaty
A31:
Treaty, preamble and annexure
Agreement on concluding the treaty (preparatory
works)
Conclusion of the treaty
Use primary means to establish the meaning and use secondary
means to: A32
Confirm the meaning
If the meaning is obscure
If the meaning used is absurd
PUBLIC INTERNATIONAL LAW
QUESTIONS AND ANSWERS
SOURCES OF INTERNATIONAL LAW:
QUESTION 1:
It has been said that international law is not a democratic system
and is run by a certain number of states that control the
application of the law. Do a comparison between a democratic
state and international law.
Public International Law Municipal Law
1. No legislature – no body to 1. Full legislature: there is a
make international law – the democratically elected
only body is the GA, who parliament who makes
can make non-binding binding laws
recommendations and isn’t 2. Fully developed judiciary =
democratically elected precedent and nemo iudex
2. No Court to apply 3. Full executive = president
international law – no and permanent police force
precedent and the state is a 4. Subjects: natural and
judge in its own case = ICJ juristic people
3. No executive to enforce
international law = no
permanent police force = SC
4. Subjects: states and
international organizations
QUESTION 2:
What is a ius cogens and what’s its importance with regard to
treaties:
Ius 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. Ius 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.
, 2
QUESTION 3:
What is soft law and what is its influence on the Constitution?
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
Should be understood to include all the sources, which do not
traditionally give, rise to enforceable law such as i.e. opinions of
writers and the non-binding resolutions of the GA.
Carmichele: in the process of developing the common law in terms of
S39 (2) the constitutional court referred to the decisions of the
European court of human rights and the European convention on
human rights. Therefore it appears that international law is also
relevant when courts are developing the common law to reflect the
spirit, purport and object of the Bill of Rights.
Human Rights are no longer just a domestic concern.
The application of Human Rights in SA law is controlled by SA law.
QUESTION 4:
In terms of article 38 of the ICJ: name and explain the 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.
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
, 3
QUESTION 5:
Define ius cogens
Ius 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.
Ius 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.
, 4
INTERPRETATION OF TREATIES:
QUESTION 1:
In a SA court a judge is required to interpret the provisions of a
treaty, give him the rules required in international law, on the
valid interpretation of treaties:
Interpretation of treaties:
2 ways to interpret:
1) Textual approach – look at the ordinary
meaning of the words (SW Africa)
2) Purposive – interpret in accordance with the
purpose of the treaty
VC: Combines the 2 in A31: states that treaties must be interpreted
in good faith and in accordance with the ordinary meaning of the
words (textual), used in context (purposive) = looking at the purpose of
the treaty
A31:
Treaty, preamble and annexure
Agreement on concluding the treaty (preparatory
works)
Conclusion of the treaty
Use primary means to establish the meaning and use secondary
means to: A32
Confirm the meaning
If the meaning is obscure
If the meaning used is absurd
