International Law Notes (PVL3001F)

Term 1:
Why do South African lawyers’ study international law?
- Section 39 & 231-233 of the Constitution: thus, part of RSA law & influences RSA
domestic law
- RSA is part of the Global Community of States: State activity is regulated by domestic
& International Law- therefore need to understand how IL operates & applies to RSA


What is International Law?
International law= a set of rules and principles that primarily bind States in their relations
with one another
- General: all 193 states in the world (most IL)
- Regional: certain regions
- Bilateral: only 2 states
- Non-hierarchical
- Based on State consent: no court system with compulsory jurisdiction, no legislature,
no executive, no police to enforce the law


Domestic Law
- Centralised & vertical  enforced from an individual above




International Law
- Horizontal & decentralized  creator & subject= same person

,Sources of International Law:
Article 38(1) Statute of the International Court of Justice:
a. International conventions (treaties)
b. International custom (“customary international law”)
 makes IL distinguishable from other law
c. General principles of law
d. Judicial decisions and teachings of the most highly qualified publicists


- Primary sources have no hierarchy
- 38(1)b  based on State practice/ the way they act
- Subsidiary sources (Article 18(1)d) show evidence of laws and show the content of
the primary sources)


Enforcement of International Law:
1. State Responsibility= when state breaches IL they are liable to the victim State
 Civil law claims
 State vs State
E.g. There is a treaty between RSA & Zim. If RSA breaks the treaty they can be held
accountable for State Responsibility. If the breaking of this treaty impacts me as an
individuals, I cannot claim State Responsibility against RSA. Needs to be S v S claim.




2. Courts
- International Courts (Main one is in the Hague- judicial organ of the UN)
• Jurisdiction: if all the States involved have consented to the court’s
jurisdiction.
E.g. If RSA & Zim consented to the international court hearing the
case. No compulsory jurisdiction

, • Precedent: No formal system of precedent. The jurisdiction is based
on consent, thus the decision of the International court binds only
those parties.
- Foreign Domestic Courts can hear State dispute but in most cases states are immune
to these courts, unless they consent
E.g. RSA & Zim- the RSA HC would not hear a case relating to Zim. Zim is immune to
the domestic courts of RSA unless Zim consents.


3. Remedies
- Civil law remedies: compensation; restitution; apologies (successful state
responsibility)
- Non-forcible counter-measures (e.g. states can apply economic sanctions such as
imposing a trade embargo)
- UN Security Council sanctions (Security Council has special powers under the charter
of the UN)
 Use of force can be authorised by the Security Council
- Use of force by a state w/out Security Council: Historically yes but no longer the case




International organisations:
International organisations act as fora where IL is created, discussed & enforced.

- The United Nations:
 Only global (practically only one where all states are part of)
 Security Council; General Assembly; International Court of Justice;
Secretariat; Committees
- Regional organisations
 WTO
 SADC (Southern African Development Community)
 African Union
 European Union
- Judicial organisations
 ICJ

,  ICC
 African Court of Justice
 European Court of Justice
- Expert bodies: interpreting and enforcing specific treaties
 ILC: provides a venue for legal experts to discuss codification and
development of law
 Treaty bodies (e.g. UN Human Rights Committee)




Sources of International law:
Treaties
Treaty=Charter=Conventions=Protocols (all the same for a treaty)


Treaty= contracts between states where they agree to follow rules that is set out in the
treaty itself.
- Articles: different parts of a treaty
- Section: different parts of domestic legislation


Vienna Convention on the Law of Treaties 1969 (VCLT): ‘treaty on treaties’ (treaty that is
recognised the basic rules on the law of treaties)
- Art. 2 Vienna Convention on the Law of Treaties:
treaty= 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.”
o Treaties can be between different bodies (e.g. State & International
organisation)
o Can be on any topic (WTO, environmental, outer space)


States are only bound if they sign up for the treaty:
- Bilateral: 2 states (e.g. between RSA & Zim)
- Multilateral: Group of States (African Union)
- Universal: small number (e.g. United Nations Charter)