Public
International Law
314
Dr Ntando Sindane
()
Bonny-Lyle Young
[]
2 Year LLB PG
, Topic 1: Introduction to International law
Prescribed Materials:
Literature:
▪ TW Bennett and J Strug Introduction to International Law, Chapter 1
▪ J Dugard et al International Law A South African Perspective, Chapter 1
Resolutions of International Organisations:
▪ Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, Un
General Assembly Resolution 2625(XXV) (1970)
▪
Questions for Topic 1:
Þ Outline the history and nature of international law and the theories relating to it;
Þ Explain the position of international law within the legal system
Þ Explain the differences between international and domestic law;
Þ Explain in broad terms when international law is relevant;
Þ Explain the problem of sanctions and provide a definition of international law; and
Þ Explain in broad terms the role of the international community in upholding the
international rule of law.
, TW Bennett
Monday, 10 February 2025 Chapter 1: page 1-10
International Law, it’s history and theory
What is international law?
Some general historical background
Historical background specific to South Africa
What is International Law?
Þ International law may be viewed as a body of rules and principles, which are
binding upon states in their relations with one another.
Þ Since 1949 it has been accepted that international organisations, such as the UN
and its specialised agencies, enjoy international legal personality.
o Who knows why the year 1948 is important?
o What was happening in the world in 1948 – significant events.
Þ International Law veers off from “traditional law” in some aspects, and encroaches
into three other disciplines:
1. international relations and diplomacy,
2. geo-politics, and
3. global history.
Þ Important comparisons to take note of:
- Public international law:
o Governs the relations between states
o It comprises a body of rules and principles which seek to regulate
relationships between states
- Private International law:
o Concerns the relations between individuals whose legal relations are
governed by the law of different states
- Comparative law
o Comparative law is the study of the relationship between legal systems or
between rules of >1 system, their differences and similarities.
, Is International Law really law? (What is theory?)
Þ There is a debate about whether International Law is really law,
Þ This is due to a number of reasons:
I. No central legislative body:
• There is no central legislative body in international law with the power to
enact rules binding upon all states.
• The rules of international law are to be found in agreements between states,
known as treaties, and in international custom.
• These rules are not imposed from above by any central law-making body.
• Instead, they are created by the consent of states.
• Whereas municipal law operates vertically, with rules imposed from above,
international law is a horizontal system in which the lawmaker and subject is
the same legal person.
II. No Central executive authority:
• There is no central executive authority with a police force at its disposal to
enforce the rules of international law.
• The UN is not a world government: it lacks…
• the power to direct states to comply with the law;
• and a permanent police force to punish violators of the law.
III. No judicial system:
• International law does have a judicial system capable of ruling on disputes
between states.
• NB difference between international courts and domestic courts:
• international courts have jurisdiction only over those states that have
consented to their jurisdiction.
• In other words, have signed and ratified the particular treat or
convention.
• It speaks for itself that such states have by their signing and
ratification taken certain international obligations upon themselves.
• For example, to prosecute individuals allegedly responsible for the
most heinous international crimes.
John Austin’s response to whether International law is really law
John Austin:
Þ John Austin:
o international does not qualify as law
o this is because law is the command of a political superior to a political inferior
backed by the threat of a sanction.
International Law
314
Dr Ntando Sindane
()
Bonny-Lyle Young
[]
2 Year LLB PG
, Topic 1: Introduction to International law
Prescribed Materials:
Literature:
▪ TW Bennett and J Strug Introduction to International Law, Chapter 1
▪ J Dugard et al International Law A South African Perspective, Chapter 1
Resolutions of International Organisations:
▪ Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, Un
General Assembly Resolution 2625(XXV) (1970)
▪
Questions for Topic 1:
Þ Outline the history and nature of international law and the theories relating to it;
Þ Explain the position of international law within the legal system
Þ Explain the differences between international and domestic law;
Þ Explain in broad terms when international law is relevant;
Þ Explain the problem of sanctions and provide a definition of international law; and
Þ Explain in broad terms the role of the international community in upholding the
international rule of law.
, TW Bennett
Monday, 10 February 2025 Chapter 1: page 1-10
International Law, it’s history and theory
What is international law?
Some general historical background
Historical background specific to South Africa
What is International Law?
Þ International law may be viewed as a body of rules and principles, which are
binding upon states in their relations with one another.
Þ Since 1949 it has been accepted that international organisations, such as the UN
and its specialised agencies, enjoy international legal personality.
o Who knows why the year 1948 is important?
o What was happening in the world in 1948 – significant events.
Þ International Law veers off from “traditional law” in some aspects, and encroaches
into three other disciplines:
1. international relations and diplomacy,
2. geo-politics, and
3. global history.
Þ Important comparisons to take note of:
- Public international law:
o Governs the relations between states
o It comprises a body of rules and principles which seek to regulate
relationships between states
- Private International law:
o Concerns the relations between individuals whose legal relations are
governed by the law of different states
- Comparative law
o Comparative law is the study of the relationship between legal systems or
between rules of >1 system, their differences and similarities.
, Is International Law really law? (What is theory?)
Þ There is a debate about whether International Law is really law,
Þ This is due to a number of reasons:
I. No central legislative body:
• There is no central legislative body in international law with the power to
enact rules binding upon all states.
• The rules of international law are to be found in agreements between states,
known as treaties, and in international custom.
• These rules are not imposed from above by any central law-making body.
• Instead, they are created by the consent of states.
• Whereas municipal law operates vertically, with rules imposed from above,
international law is a horizontal system in which the lawmaker and subject is
the same legal person.
II. No Central executive authority:
• There is no central executive authority with a police force at its disposal to
enforce the rules of international law.
• The UN is not a world government: it lacks…
• the power to direct states to comply with the law;
• and a permanent police force to punish violators of the law.
III. No judicial system:
• International law does have a judicial system capable of ruling on disputes
between states.
• NB difference between international courts and domestic courts:
• international courts have jurisdiction only over those states that have
consented to their jurisdiction.
• In other words, have signed and ratified the particular treat or
convention.
• It speaks for itself that such states have by their signing and
ratification taken certain international obligations upon themselves.
• For example, to prosecute individuals allegedly responsible for the
most heinous international crimes.
John Austin’s response to whether International law is really law
John Austin:
Þ John Austin:
o international does not qualify as law
o this is because law is the command of a political superior to a political inferior
backed by the threat of a sanction.
