LCP4801-_section_a_-_practical_exercises_from_guide_with_answers.

SECTION A TOPIC 1: THE DEVELOPMENT AND NATURE OF INTERNATIONAL LAW Practical exercise 1 Using Dugard and the draft outline of the two concepts we give below, compare natural law and positivism and assess the role that each plays in present-day international law. The exercise stresses, from the outset, that we expect you to be able to express your opinion on all the topics in this course. Here we are giving you a simple outline which you need to expand into an essay. Most students tend to study our outlines and repeat them (or try to!) verbatim in the examination. This is not enough. Part of the assessment process is based on whether you can write clearly and accurately and can integrate facts, and the law applicable to those facts, into a legal opinion. This is a ‘‘starter activity’’ to get you used to writing, so we are providing an outline consisting of the main points you should address in your discussion. In study unit 6 of this topic, we will link this theory to two factual situations. In this exercise you have been asked to write an essay which includes the main points we have given you. We will not write the essay for you and there is not one single perfect answer. You must do this yourself, because it is only through practice that you will learn to write well-structured, clear and accurate essays. Make sure that your essay contains an introduction and a conclusion, and that the main body is divided into subheadings to keep your ideas and arguments focused and in a logical sequence. If you are not sure whether your essay meets the required standard, you may send it to us for comment Practical exercise 2 Now that you have studied this module and have integrated it with the work in Dugard, go over the following concepts and see if you can expand on them and can discuss them in detail: 1. the emergence of states 2. development of international law 3. the international organisation 4. ideologies that shape our world 5. positivism and natural law 6. the differences between national law and public international law 7. why the UN is not a legislative body 8. the differences between the ICJ and domestic courts 9. the different systems of sanctions in domestic and international law 10. the definition of international law The emergence of states: The concepts “state” and “statehood” are discussed in detail later in the module when we deal with the international legal personality. Important at this stage is that the emergence of states as separate entities (with legal personalities separate from those of their respective subjects) and with their own governments (which exercise authority over a particular territory) kick-started and influenced the development of international law in a number of ways. First, the concept of state sovereignty was born. State sovereignty means that the state may decide what to allow within its borders without interference from other states. This was a particularly strong principle which persists as one of the pivotal rules of international law (see, for example, articles 2(4) and 2(7) of the UN Charter), although concerns for the protection of human rights may have relaxed its strict meaning. Secondly (and perhaps more obviously) these entities have to interact with one another on a daily basis – hence the raison d’être of the constantly evolving international law rules. 2 The international organisation: In order to achieve a stated common purpose (provided it is not prohibited by international law), states may choose to group themselves in various organisations. Such an organisation acquires a separate personality of its own (see Reparations for Injuries Suffered in the Service of the United Nations 1949 ICJ Rep 174), and its purpose and capacities are circumscribed by the states which have founded it. Examples of such organisations are the United Nations, which provides an international forum for the discussion of issues of interest to all member states and the maintenance of international peace and security, and the World Trade Organisation, under whose auspices a framework for the conduct of inter-state trade has been developed. We discuss international organisations in detail under the topic of international legal personality. Ideologies that shape our world: Essentially, international law is a dynamic field, which changes with the shifting needs of the members of the international community. For example, the emergence of the individual as a ‘quasi-subject’ of international law arose after the international community had realised that it could not allow a repetition of the atrocities committed during the two world wars. International human rights law gained prominence, the concept of strict state sovereignty eroded further, and individuals gained the right to, for example, petition international human rights bodies. A further related development is the emergence of international criminal law – and the idea that states should assist one another in bringing individual perpetrators of war crimes and crimes against humanity to justice. Positivism and natural law: Positivists are also known as black letter lawyers. Generally, they believe in and apply the law as it has been positivised (written down) in its sources (eg in legislation). Positivists tend to separate law from morality, thus they only follow the written letter of the law. In the context of international law they would argue that international law is based on consent alone, as it has been decreed by states. The advantage of the positivist law theories is that they create certainty and allow for the objective identification of all international law rules. Natural law followers, on the other hand, believe that we are all bound by a higher law. Initially this was seen as divine law. The early naturalists were influenced by the doctrines of canon law (principally the law of the Catholic Church). Hugo de Groot, a 17th century jurist, was the first to sever the link between divine law and natural law. At the risk of oversimplification, it may be said that natural law is the universal law of eternal application which is founded on human reason and is inseparable from morality. This law is one of higher order. It is not made – it is discovered. It exists and applies universally. The natural law followers would criticise the view that international law is based on consent alone, and they would point out that there are international law rules which can only be explained with reference to a source which is above and beyond consent. Natural law philosophers such as Suarez, Gentili and De Groot were prominent during 16th and 17th centuries. The positivist movement (headed by jurists such as Van Bynkershoek) gained momentum from the mid-18th century onwards. The inviolability of state sovereignty and the principle that states are only bound by those rules to which they have consented, continued to triumph during the 20th century. The International Human Rights movement, which gained impetus after World War II, has been influenced by the theories of natural law. The differences between national law and international law: National law operates within the territory of one state, governs the relationships between its subjects (on the one hand), and the relationship between those subjects and the state on the other hand. The rules of national law are binding on each and every subject within the territory of that state. Depending on the nature of the legal system, these binding legal rules are developed by the courts or promulgated in legislative codes by a body authorised to do so (or a combination of the two). International law consists of rules governing the relationship between states. These rules are created mostly by consent. In other words states are bound by them because they have agreed to be so bound: They choose to enter into treaties or to follow a particular practice that could develop into a rule of customary international law. Thus, unlike national law, international law knows no central legislator and no executive authority. The differences are briefly summarised in the table on page 9 of the study guide. Why the United Nations is not a legislative body: The General Assembly (GA) of the UN has the powers to adopt recommendations, but these recommendations do not have binding force in the way domestic legislation is binding upon the subjects of the state concerned. UN members may also enter into treaties among themselves, but the 3 provisions of these treaties are only binding on the states who have consented to be parties to them. No state can be forced to enter into a treaty. (In this sense one may say that treaties are comparable to contracts.) The differences between the International Court of Justice (ICJ) and domestic courts: Only states may appear in contentious proceedings before the ICJ. Individuals have no standing to do so. In addition, the jurisdiction of the ICJ is based on the consent of states to be party to the dispute. Furthermore, the rule of nemo iudex in sua causa does not apply to these proceedings and there is no precedent system. Unlike the ICJ, domestic courts exercise jurisdiction within the territory of a given state, over its subjects, who have no say as to who will hear their dispute (in a sense that a subject cannot choose a judge sympathetic to their cause). Depending on the type of legal system in that state, the system of precedent may apply. The different systems of sanctions in domestic and international law: National law provides for an executive machinery, such as the police, to ensure compliance with its rules. In international law there is no body vested with the automatic authority to impose sanctions on states when they do not comply with the rules of international law. The Security Council (SC) of the United Nations (UN) may in certain narrowly defined circumstances recommend that sanctions be imposed on a recalcitrant state, or even take binding decisions under Chapter VII of the Charter to the effect that such sanctions should be imposed. But this is a far cry from the fully developed enforcement mechanisms found in national law. The definition of international law: International law is the body of legal rules which governs the relationships between states and international organisations. Practical exercise 3 Write a critical essay indicating the major stages in the development of public international law and the role it could play in the future. Use the following concepts to guide your essay: emergence of state; state sovereignty; international organisation; world government; emergence of individual; human rights; ideologies. You should not find this exercise difficult. It tests whether you understand the definitions and explanations of some of the above-mentioned concepts, because it is not enough simply to repeat them verbatim. You need to be able to write a critical essay in which you use the definitions and explanations to clarify your arguments. If you have tried and failed to do the exercise, please do contact us. We will be happy to look at any draft essays you have written. Practical exercise 4 Remember our discussion above of the natural law and positivist approaches to international law? Well, we promised to add some facts to make it more interesting. Here they are then: Imagine that you are still living in apartheid South Africa (in other words, before the adoption of the 1993 and 1996 Constitutions). Vusi, a black man living in a one roomed house in Soweto, wins R2 million at the races. Wishing to improve his living conditions, he concludes a contract of sale for a modest property in Bryanston, Johannesburg. He also attempts to register his daughter at a state school in the area. The Registrar of Deeds refuses to register the house in Vusi’s name, and the school principal refuses to register Vusi’s daughter at the school. The basis of their refusal is the Group Areas Act, which prohibits black people from residing or owning property in an area classified as white, and the Black Education Act, which entrenches separate education for blacks and whites. Vusi takes the matter to court. In the judgment given against him, the judge states that the law is what the government of the day enacts in legislation and that the function of the court is to apply the law as it stands and not to make the law. Vusi accepts this, as he has no choice, and proceeds to spend all his money. It is now 1999, after the current dispensation has been put in place. Luck again strikes and Vusi wins R1 million, this time on the Lotto! Amazingly, the house is again available and the school is still there. Unfortunately, through a slip on the part of the legislative review board established to bring South African legislation into line with the Constitution, the two offending Acts are still on the statute books. Vusi challenges the validity of the Acts in the Constitutional Court. The court finds that both Acts violate Chapter 2 of the Constitution and declares them invalid as representing gross violations of human rights. Vusi gets his house and his daughter goes to the school of her choice.