LCP4801 Summarised Study N0tes

LCP4801 NOTES CLS cc © International Law Notes 1 INTERNATIONAL LAW THE LEGAL NATURE OF PUBLIC INTERNATIONAL LAW (PIL) CHAPTER 1: Theories of public International law: Natural law: De Groot:  The idea of law is that it universal, it isn’t something which is made but it is discovered – it comes from the idea of god, nature etc  Man made law must be done according the natural law = which is the idea that a pre political set of rules must be established in order to guide human laws  Law and morality aren’t separated = the state has a moral function  This law is binding on both the state and the individual = state isn’t above the law.  Such law applies automatically and doesn’t require consent. This theory uses reason and allows the law to be applied in a flexible way, in that it can be adapted to changing circumstances. TODAY: it has an influence on Human Rights Examples of the use of natural law in International law:  One of the sources of international law = GENERAL PRINCIPLES OF LAW: these are used by international tribunals where there are no rules of treaty or custom, they allow the court to look at common principles found in a municipal system to fill in the gaps in international law = don’t have consensus as a basis = similar to the use of S39 in SA domestic courts  Ius cogens – which is an obligatory rule from which no deviation is allowed and which is binding on states, even if they don’t consent  Erga omnes: is an obligation which a state owes to the international community as a whole = all states have an interest Positivism: Van Bynkershoek: CLS cc © International Law Notes 2  This is the idea that law is determined by the state = the focus is on positive man made rules  The state creates international law by CONSENT = they are bound by the laws to which they have consented.  There is a complete separation between law and morals E.g. if a country persistently object in the development of an international custom they are NOT bound – based on consent The problem with this is that the state isn’t bound by any higher law = no moral constitution = they separate law and morals This theory was used as the basis for nazi Germany and could be said for apartheid SA = Dugard blamed positivism for the mechanical interpretation of laws by apartheid judges = stated that judges hid their racist beliefs behind the formality of the law. This theory provides clear guideline on what the law is. In terms of both custom and treaty = a state is only bound if they consent. With a treaty one of the requirements is consensus between the parties – agreement which creates rights and duties and is governed by international law. CLS cc © International Law Notes 3 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