International Law Notes (2021) PDF

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NB - **These notes are from the prescribed material for 2021 (be mindful as the content may have changed since). Most of the sections belowwere taken from our prescribed textbook - “Durgard’s International Law: A South African Perspective” [Dugard, J. Du Plessis, M. Maluwa, T.& Tladi, D. Dugard’...

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NB - **These notes are from the prescribed material for 2021 (be mindful as the content may have changed since). Most of the sections below were taken from our prescribed textbook - “Durgard’s International Law: A South African Perspective” [Dugard, J. Du Plessis, M. Maluwa, T. & Tladi, D. Dugard’s International Law: A South African Perspective. (2018) 5th ed. Juta: Cape Town]** LU 1 – INTRO TO PUBLIC INTERNATIONAL LAW 1. MUNICIPAL LAW VS INTERNATIONAL LAW MUNICIPAL LAW regulates the behaviour of people within society as well as the relationship between them and the state  it has a vertical structure - government (3 branches) subjecting its citizens to the domestic law of that state (Legislature - makes the law; Executive - enforces the law; and Judiciary - adjudicates on issues). INT LAW regulates the relationships between the members of states, of the different nations. Generally requires consent and dependent on will of states (Customs, treaties conventions)  has a horizontal structure - all states argue that they are equal in their sovereignty . Doesn’t have the ‘municipal’ structure  no legislative body to create laws and no central executive authority to enforce the law, however, there are a number of int. courts (capable of ruling disputes between States). 2. ASSESS WHETHER OR NOT INTERNATIONAL LAW, IS REALLY LAW A number of writers have expressed their views on this matter: Austinian - law is a command of a political superior imposed on a political inferior and backed by a threat and use of sanctions  not law (discredited); HLA Hart - is a ‘species of law’; and Pollock - requirements for an effective system of law = the existence of a political community, and the recognition by its members of settled rules binding upon them. As a means to understand the int. law set-up, we tend to compare int. law with the municipal legal system as described above. When doing this, it can be seen that the UN General Assembly is not a world legislature - does not have the power to enact rules which are binding on all states. It can only adopt resolutions (merely recommendations) and States are not compelled to apply them. The ICJ can operate only on the basis of the consent of the States to its jurisdictions. Int. law also has no unified system of sanctions  there is negativity surrounding int. law efficiency as a legal system. Nevertheless, even though the structure of int. law is not similar to that of most municipal legal systems, it does consist of rules, and these rules are regarded as laws by most states. Article 2(3) of the UN Charter: All members shall settle their international disputes by peaceful means in such a manner that international peace, and security, and justice are not endangered. Article 2(4) of the UN charter : a general prohibition on the use of force. 3. DIFFERENT THEORIES OF INTERNATIONAL LAW - NATURAL VS POSITIVISM NATURAL LAW: law is natural (can be deduced through reasoning) and doesn’t have to be written down. Eg, ‘ human rights’ are the fundamental rights all humans have to live a life with dignity  the fact that we are humans gives us this right regardless of whether it is written down. However, this may lead to legal uncertainty. POSITIVISM: law can only be law once it is written down (codified). Created to govern various aspects and cannot limit those natural rights  subordinate to natural law. There is legal certainty, however, in the extreme case of Nazi Germany (absolute sovereignty), we see its dangers  after the war this philosophy was discredited. It is also worth noting that the Constitutions of various countries were designed, not to grant rights, but to prevent the government from taking away those rights  attempting to ‘codify’ natural law. Furthermore, positivists proclaimed ‘consent’ as its basis - a State was bound only by those rules which it had clearly consented. Modern legal theories: UN Charter promotes human rights and is largely inspired by natural law. In modern times, governments pass laws that take away some people’s liberties in the name of social justice to create social equality through force of law, however, taking away the rights of one person in order to create equality with those less fortunate creates class warfare, undercutting the freedoms and liberties of individuals. Despite notions of justice and values of natural law forming the foundation of contemporary int. law, for many states, consent remains the basis of their international participation  measure of truth in both theories. 4. 5 CRITERIA FOR STATEHOOD + UNILATERAL VS COLLECTIVE RECOGNITION CRITERIA in article 1 of the Montevideo Convention of 1933 (MC) - the state as a person of international law should possess the following qualifications: 1. 2. 3. 4. 5.

A permanent population - no minimum population size (microstates = discredited); A defined territory - not a necessary prerequisite to have clearly defined and undisputed borders, however, should have a stable community within an area over which its government has control. Also not necessary to occupy a ‘single’ territory; Government - must have a government that is in effective control of its territory and that is independent of any other authority (however, requirement was relaxed in the process of decolonisation and other political considerations); Capacity to enter into relations with other states - consequence of independence. Also worth noting a 5th qualification (outside of the 4 provided in the MC) in the form of - respect for human rights and self-determination (post WW2). This may also be linked to the requirement of effective government as, surely a government that denied basic rights could not be truly organised/effective.

RECOGNITION is unconditional and irrevocable. An entity is either a State or it is not. It is also a precondition for the establishment of diplomatic relations. 1. 2.

Unilateral recognition - individual recognised state, recognises that an entity claiming to be a state meets the factual requirements of statehood (abv). Constitutive - all 5 requirements for statehood + recognition by other states while, Declaratory - all 5 requirements only. Collective recognition - group of states (UN or AU) recognises the existence of a claimant state directly (by an act of recognition) or indirectly (by an admission of the state to th at organisation/group). Relatively uncertain and controversial. Collective non-recognition - organisation/group may also block the acceptance of a state in the instance that one or more of the following jus cogens are contravened: (a) Aggression; (b) The acquisition of territory by means of force; (c) Systematic racial discrimination and the suppression of human rights; (d) The denial of self-determination.

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5. THE RIGHT TO SELF-DETERMINATION + TERRITORIAL INTEGRITY + SECESSION SELF-DETERMINATION = legal right affirmed in the UN Charter and given content by resolutions of the General Assembly (Resolution 1514). ‘ Norm in international law’ in the context of decolonisation (ICJ) while confirmed outside of the context of decolonisation by the International Covenant on Civil and Political Rights and many authors (one of the essential principles of contemporary international law). Prior to 1976, self-determination was invoked mainly in the context of decolonisation. After 1976 (Human Rights Covenants) the right to self-determination was recognised with no restriction to colonial situations  a distinction was drawn between: External self-determination: which belonged to colonial peoples; and Internal self-determination: the right of a population or people within a noncolonial state to choose the government, to participate in a government representing the people and to have the human rights of all person within the state respected. TERRITORIAL INTEGRITY = principle guaranteeing respect of existing boundaries (also used by UN to block secession). Equals self-determination in its legal credentials. Article 2(4) of the UN Charter obliges all member states to refrain in their international relations from the threat to use force against the territorial integrity or political independence of any state. Resolution 1514 (granting of independence to colonial countries and peoples) also qua lifies the right to territorial integrity. States also rededicated themselves to the principle in the World Summit Outcome Resolution of 2005. SECESSION = the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. Problems arise where the government of the state insists on the maintenance of its territorial integrity and resists the secession of a region of the state  principles of self-determination vs principles of territorial integrity. In practice, ‘recognition’ is important  if a sufficient number of states recognise a seceding region as an independent state, this will give credibility to its claim of statehood. It is commonly admitted today that, outside the context of decolonization and situations of military occupation, there is no “right” to create an independent state. The cases in which secession has been successful are mainly characterised by two phenomena: 1. 2.

The separate identity of the seceding region in geographical, historical or constitutional terms; and The denial of the rights of internal self-determination, accompanied by the violation of the human rights and the exhaustion of attempts to secure internal self-determination.

 the right to self-determination and the principle of territorial integrity remain the most significant principles, but both are subject to qualification. It is the task of states and international institutions to balance these rights, rules and principles wisely to ensure fairness and stability in the international legal order. It is also worth noting that S235 of the Constitution provides for the people of South Africa ‘as a whole’ to enjoy the right to self-determination. 6. CHARACTERISTICS OF A FAILED STATE » Essentially, an existing state (having being ‘recognised’ either unilaterally or collectively ) may descend into anarchy and lawlessness to such an extent that it ceases to meet the requirements of statehood (MC). It retains its territory and population but lacks an effective, central governmental authority  unable to maintain order or provide basic services to its people. Such a state may be described as a ‘juridical state’ (existing only as an international person with no substance to back its claim to statehood). Alternatively, it may be described as a ‘failed state’. This is a major problem for a number of reasons: 1. 2.

According to int. law, it is still recognised as an entity and maintains the appearance of statehood  continuing to function at international level through membership in international organisations (relaxation of the ‘effective government’ requirement for statehood) . The withdrawal of recognition , although logical and theoretically possible, is without precedent and politically unacceptable . Remedies come in the form of ‘temporary trusteeship’ and ‘informal state- building’, however, the notion of the former is tainted with colonialism making it an unlikely remedy. Neglect is also not an option as it leaves millions of people without hope for the future  leading to the degradation of Int. law.

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LU 2 – THE SOURCES OF INTERNATIONAL LAW 7. SOURCES OF INTERNATIONAL LAW - ARTICLE 38(1) OF THE STATUTE OF THE ICJ 1. 2. 3.

4.

Treaties (main source) - an agreement in written form between states or between states and international organisations  VC provides rules, procedure, interpretation and termination. Customary rules of Int. Law (main source) - evidence of a general practice accepted as law. ‘General practice’ (usus) and ‘ opinio juris’ (accepted as law). Governs parts of a legal area or problem that are governed by a written or codified treaty. General principles of Law recognised by civilised nations - called upon where there are no applicable rules of treaty or customary law  subordinate to treaties and customs. Also, these principles do not have a consensual basis  confirming the natural law basis of int. law (good faith, respect for human dignity, proportionality). Judicial decisions and teachings of the most highly qualified scholars - these are both “subsidiary means for the determination of the rule of law”  they are traditionally viewed as supplementary means used for interpretation, application and development of int. law.

8. TREATY VS CONVENTION + PACTA SUNT SERVANDA + RESERVATIONS, INVALIDITY, TERMINATION AND INTERPRETATION TREATY = an agreement in written form between states or between states and international organisations  VC provides rules, procedure, interpretation and termination. Also not binding on non-signatory states. Furthermore, treaties (bilateral and multilateral) are divided into 3 categories: Contractual treaties - governing matters such as trade, extradition, air/landing rights and mutual defence. States ‘contract’ with each other  establishing a particular legal relationship; Legislative treaties - codify existing rules of customary law or create new rules of law; and Constitutional treaties - UN Charter (constitution of the UN); African Union Constitutive Act; South African Development Community Treaty (SADC); CONVENTION = an agreement between states covering particular matters (less formal than a ‘treaty’)  = a ‘body’ set up by an agreement to deal with an issue.

3 DIFFERENCES:

Treaty

Convention

1. NUMBER OF PARTIES -

Limited number of parties. Bilateral and sometimes multilateral.

Usually for larger number of parties.

2. DRAFTING/EXECUTION -

Only the parties involved. Eg. two countries at war sign peace treaty to end the war  only two countries are involved and no one else.

Only under an international body (such as the UN) for the issues that affects multiple states.

3. EXTENT OF COVERAGE -

Solves a local issue.

Solves an issue that affects larger section of the world.

PACTA SUNT SERVANDA = ‘agreements must be kept’ = founding principle in international law in VC stating that: international treaties should be upheld by all the signatories (MUST honour their treaties). Based upon the principle of good faith  party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. Limitation of principle = jus cogens RESERVATION = unilateral statement made by a State when ratifying or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the State  in terms of Article 19, a State may formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides only for the making of specified reservations; or (c) in cases other than (a) and (b), the reservation is incompatible with the object and purpose of the treaty  when a state has reservations about a provision in a bilateral treaty (counter-offer), parties can just renegotiate before signing. However, when a state has reservations about a provision in a multilateral treaty, the reservation must be compatible with the object and purpose of the treaty. Also worth noting that an ‘interpretative declaration’ (conditional acceptance of the treaty) may constitute a reservation. Furthermore, reservation requires the acceptance of all parties and a state that objects to a reservation may exclude the operation of the treaty between itself and the reserving states, provided it makes this clear. INVALIDITY (4 instances): 1. 2. 3. 4.

Internal Law - may have entered into a treaty in violation of its internal law if it is of fundamental importance). Error - if error relates to a fact which formed the basis of its consent to be bound by the treaty  can’t rely if error = state conduct or error was noticeable. Lack of consent/duress - where consent has been secured by means of threat/duress Use of force - treaty is void if its conclusion has been procured by the threat or use of force in violation of the UN Charter.

TERMINATION (4 instances): 1. 2. 3. 4.

If the treaty contemplates such; If the parties come to an agreement; If there is a material breach or violation; If there is a fundamental change in the circumstances which allowed acceptance of the treaty and if such a change has resulted in a radical transformation of the extent of the obligations imposed by the treaty. However, ‘fundamental change’  change as a result of breach by the party invoking it.

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INTERPRETATION (3 approaches approved by ICJ and accepted in the VC): 1. 2. 3.

TEXTUAL - literal or grammatical meaning of words (favoured by positivists and formalists); TELEOLOGICAL - emphasising the object and purpose of a treaty in the interpretative process; INTENTION OF PARTIES - seeks to give effect to the intention or presumed intention of the parties, which the judge deduces from text/historical record of the treaty. (stated that it is better to rely on subsequent state practice, as opposed to intention of original signatorie s)

Article 31 of VC recognises the first 2 approaches while Art 32 of VC supports 3rd approach. Treaties = living instruments th at evolve  subsequent agreements can assist in determination of whether terms are capable of evolving overtime (Article 31(3)). Int. law has no hierarchy of interpretation  Judges select what is most appropriate in circumstances. In Apartheid SA, anti-teleological approach taken, however, textual approach elevated interest in human rights and state sovereignty. 9. ELEMENTS OF CUSTOMARY INTERNATIONAL LAW + EMBODIMENT IN TREATY 1.

USUS = settled/state practice) - (objective element): a. b. c. d. e. f.

2.

‘Practice’ must be widespread (not just one or two states). Evidence of state practice may be found in a variety of materials including: treaties; court decisions; legislation; resolutions of international organisations etc  it includes the practice of the government of the state as well as the practice of its courts and parliament. ICJ provides that a practice must constitute ‘constant and uniform usage’ before it will qualify as custom. In most cases, some passage of time is required for the ‘practice’ to crystallise into a customary rule (however, process may be rapid). Also the possibility of ‘regional/ local’ customary law only applicable to certain regions/states. A ‘practice’ must receive general/widespread acceptance in order to become a rule in customary international law.

OPINIO JURIS = a belief in legal obligation  must be a feeling on the part of states that they are bound by the rule in question - (subjective element): a. b.

More appropriate to define it as a belief in ‘right’ rather than obligation (psychological element in the formation of customary int. law)  it is fair to consider opinion juris as ‘the assertion of a legal right’ or ‘the acknowledgement of a legal obligation’. Proof is difficult to produce, but evidence can be found in same materials that are used for state practice (mentioned above) . The difference is that for opinio juris, the search is for evidence that states feel bound or entitled to act in a particular way, not just for political or policy reasons.

NB new rule cannot be created without 2 elements. In addition to these, there are 3 ways in which Customary int. law rules may be EMBODIED in treaty rules: 1. 2. 3.

Customary int. law rule could be codified into a treaty after crystallisation; Process of concluding a treaty could lead to the crystallisation of an emerging customary rule; State practice (through adoption of the treaty) led to the emergence of a new customary int. rule.

10. IMPORTANCE OF ARTICLE 38(1)(c)-(d) OF THE STATUTE OF THE ICJ 1.

General principles of Law recognised by civilised nations - subordinate to treaties and customs  used where no applicable rules of treaty or customary

2.

law. These ...