Lecture 1:

The global society

 All communities around the world are somehow connected

 It is most widely seen through economics (international trade)
 Also widely seen through science and technology
 Immigration also connects us
 This cross-boundary connected that we have is regulated by international law
 The set of rules that helps us manage and guide the connection we have
with one another

Why is international law important

 To maintain international order

 To maintain peace and security
 It established norms and institutions that are aimed at peaceful resolution of
disputes and conflict prevention
 It also regulates international relations
 It also protects human rights and responds to global challenges
 Laws – rules that regulate the relationships between countries – John Dugard
 Regulates the relationships between international organizations – Malcolm
Shaw
 NGO’s have limited rights and obligations under international law

International law

 Definition: a body of legal rules, principles and norms that regulate the
conduct of state and other international actors and their interactions with
one another

The subjects of international law

 Those who have rights/obligations under international law

 Anyone who may bring international claims and be held responsible for
breaches
  There are 3 subjects of international law discussed hereunder:
1) States
2) International Organizations
3) Individuals and non-state actors (NGO’s)

1) States
 States are international law and international law are states
 They are the primary and original subjects of international law
 States create the law through consent
 They have the right to protect their rights by bringing international claims
 They can be held accountable for breaching obligations
 They have sovereignty (the full right to govern itself without the interference of
others), the capacity to enter into treaties and territorial integrity (a state
boarder cannot be changed/violated by other states)

2) International Organizations
 E.g., The United Nations, African Union, European Union

3) Individuals and non-state actors

 This group is now recognized as having certain rights and obligations under
international law
 Particularly in the realm of international criminal law
 Individuals can be held accountable for crimes like genocide, war crimes and
crimes against humanity by bodies like the International Criminal Court
 NGOs are influential actors in international law, especially in humanitarian
work and norm development
 They do NOT enjoy a full legal personality though

Public vs Private International Law

Public International Law: Private international law:

  State-to-state relations,  Delas with companies/individuals that
international organizations, treaties are connected to more than one state
 E.g., one state signs a climate  Main question: which country’s law
change treaty with other states should apply?
 E.g., an SA woman marries a
French man in Italy and they later
divorce, which country’s divorce law
applies?

International law vs Foreign Law

 Foreign Law: the national law of a state

 International Law: governs the relationship between States and other
international actors

Types of international law

 General rules are applicable to a large number of States

 Regional rules apply to a certain group of States in a particular region
 Particular rules apply to two or few States

Lecture 2:

The nature of international law

Legislative authority (law-making)

National Law

 There is a centralised legislature

 They have authority to enact, amend and repeal binding laws within the State
 They have the power to create laws that apply uniformly across the
jurisdiction

International Law

 There is no central legislative authority

 IL rules are made from the consent of other States rather than from a
legislative organ
  The law-making capacity of the UNSC is limited by veto powers of the 5
powers (Russia, France, US, UK, China)
 IL reflects a horizontal legal system where States are both subjects and
authors of legal norms

Judicial Structure (Courts)

National Law

 National legal systems typically have a clear and compulsory court structure
 This is often arranged in a hierarchy (trial courts, appellate courts, supreme
courts)

International Law

 IL lacks a universal and compulsory judicial system

 The ICJ only has jurisdiction when States consent to it
 Other international courts and tribunals such as the ICC also operate on a
basis of consent
 International courts often face legitimacy challenges for disproportionally
focusing on African situations, raising questions about selectivity and fairness

Executive Enforcement (World government)

National Law

 Usually regulated by a government

International Law

 The UN, however, is not a world government

 Enforcement relies heavily on state cooperation and political will
 International enforcement is therefore fragmented and inconsistent
 International law is still enforceable through sanctions imposed by individual
States, courts, the general assembly, etc.
Sanctions

 Economic sanctions: can freeze the assets of a non-compliant State, ban

trade, impose financial restrictions, etc, to force compliance
 Exclusion from international organizations: states may be suspended or
expelled due to violations of fundamental norms
 Despite these mechanisms, the enforcement of international law remains
inconsistent and unreliable
 The existence and use of sanctions, however, show that enforcement does
still occur in international law
 Enforcement still exists and plays an important role in upholding the
international legal order

Is international law really law?

John Austin’s Command Theory

 The law is a “command of a sovereign backed by sanctions”

 International law therefore is not true law since it lacks a central authority
or coercive enforcement
 There is no global legislature, executive or compulsory courts (judiciary)
 Others critique that it is a mere moral or political obligation rather than a legal
one

H.L.A Hart’s rebuttal

 There need not be a superior or inferior for the law to be valid

 International law is a distinct legal system with rules that States recognize
as binding

Sir Frederick Pollock

 Law is not just about coercion

 It arises from a political community where members accept settled rules
 International law has widespread State acceptance, institutional structures
that help boost the recognition and acceptance of these rules, and normative
force and practical effectiveness
Why is International Law THE LAW

 States form an international community that share common legal rules

 Treaties and customary international law are widely accepted and followed
 States recognize these rules as binding, and often act in accordance with
them
 International law is usually daily followed (for e.g., diplomacy, trade, aviation
and maritime activities)
 Courts and governments treat international law like its valid and binding (e.g.,
The Constitution provides for recognition of international law)
 No credible State has denied the existence or legitimacy of international law
 States generally comply with international law, not out of fear of sanctions, but
out of a sense of legal obligation and mutual interest

Fragmentation of International Law

 This refers to the growing division of international law into separate

specialised fields or regimes
 It is divided into many specialised areas which sometimes conflict:
1. International human rights law
 Protects the fundamental rights and freedoms of individuals at all times,
including in peacetime and during conflict
2. International humanitarian law
 Establishes individual criminal responsibility for grace crimes such as
genocide, war crimes and crimes against humanity
3. International trade law
 Governs trade relations between States and promotes fair, open and rules-
based international commerce
4. Law of the sea
 Regulates maritime zones, navigational rights, resource use and marine
environmental protection
5. International refugee law
 Protects the rights of individuals fleeing persecution, violence or conflict
How do they overlap

For example:

 A refugee (governed by international refugee law) may be fleeing an armed

conflict (regulated by international humanitarian law) and their human rights
(protected by international human rights law) must be upheld
 When such conflicts arise, international courts and tribunals aim for systemic
integration of these legal regimes
 They use tools like Article 31(3)(c) of the Vienna Convention on the Law of
Treaties which requires treaties to be interpreted considering “any relevant
rules of international law applicable in the relations between the parties.”
 This approach encourages harmonious interpretation rather than treating the
regimes in isolation

Third World Approaches to International Law

 TWAIL is a school of thought that argues that international law is not just
about rules, but is also about power
 TWAIL scholars felt that international law often fails to protect weaker States
and instead helps maintain the dominance of powerful ones
 A small number of powerful States can prevent international action even when
human rights or peace are at stake
 TWAILers advocate for:
1. A fairer, more inclusive international legal system
2. Greater voice and justice for countries and peoples in the Global South
3. An international law that serves all and not just the powerful

Lecture 3:

Critical approaches to international law

 The move to decolonise the discipline of international law has been in

existence for several decades
  This has led to the establishment of platforms like TWAIL, CLS, CRT, NAIL,
FtAIL
 The contention is that theories and the practice of international law are
influenced by Eurocentric ***
 ***

Features of Eurocentric International Law

 Konrad Ginther: look at both normative and sociological analysis of

Eurocentric international law
 Normative: International law finds its foundation from Christian natural law
thinking
 Sociological: International law only started from the social interactions in
Europe
 T.O. Elias observed that classical international law is a product of European
customary law
 Mohammed Bedjaoui highlights that 4 rules define classical international law:
1) Geographic basis (Europe as the core)
2) Religious ethical inspiration (Christian law as the source)
3) Economic motivation (capitalism)
4) Political aims (international law as the imperial instrument for subjugating
non-Europeans)
 This Eurocentric feature of international law is why scholars have described it
as hegemonic and imperial in terms of its practices and theories
 Christine Scwobel-Patel argues that the discipline of international law is
largely determined and influenced by lawyers in the Global North; influential
international law institutions are located in the “New York City-Geneva The
Hague- triangle

Approaches to the decolonisation of international law

 Since the 1960’s, there have been various efforts in the Global South aimed at
decolonising the discipline
 These include:
 - Efforts on reforming the curriculum in law school to include other non-
European ideas
- Writings by scholars on decolonisation
- The reform of global institutions
- Social activism highlighting inequality and hegemonic practices
 James Gathii divides the African approaches to the decolonisation of
international law into two categories:
1. Contributionists (showing how pre-colonial actors and institutions
contributed to the development of international law)
2. Critical traditionalists (Showing the hegemonic, imperialist influence of
international law, and the need for serious reforms, e.g., TWAIL)
 TWAILers suggest reforming the UN
 They suggest democratisation of decision-making structures of global
institutions and the increase of accountability of multinational corporations
 ***

Suggestions on decolonising the discipline

 Curriculum transformation that exposes the biases of the discipline and

deliberately includes marginalised voices and ideas that have been
systematically excluded
 Bringing other disciplines into the study of international law
 Like history, anthropology, cultural studies, international studies, sociology,
etc.
 Expanding the focus on the study of international law
 Finding it in everything: art, music, movies
 ***

Lecture 4:

The relationship between International Law and National Law

State sovereignty
  It is central and was used as the guiding line towards colonialism
 A principle of international law that has developed and taken on various
interpretations
 In the postcolonial era, sovereignty was the hard-won prize of their long
struggle for emancipation
 It is the legal epitome of the fact that they are masters of their own house
 African countries gained independence from their colonial fathers
 The languages of “superior states” are prioritized in places of power (i.e., the
UN) as opposed to “subordinate” ones

Non-Intervention

 Contemporary interpretation remains that, it refers to every state’s right to

sovereignty, territorial integrity and political independence (economic, social
and cultural)

Sanctions

 Sanctions are the main tool used by states and intergovernmental

organisations for ‘regulating’ the activities of targeted states
 These are used as an alternative to the use of force

Republic of South Africa

S231 of the Constitution: international agreements

(1) The negotiating and signing of all international agreements is the

responsibility of the national executive
(2) An international agreement binds the Republic only after it has been approved
by resolution on both the National Assembly and the NCOP
(3) The Republic is bound by international agreements which were binding on the
Republic when this Constitution took effect
 We are now bound by the principle of state succession
 International law MUST be considered  S39: Interpretation of the BOR
 National security must be pursued in compliance with the law, including
international law  S198: Governing principles
  The primary objective is to defend and protect its territorial integrity in
accordance with the principles of international law regulating the use of force
 S200: Defence force

Lecture 5:

Customary international law

**

Sources of public international law

General principles

 A ‘gap filler’ for when there is no treaty rule, no rule of custom

 Courts or tribunals may apply general principles of law to resolve the issue
when there is no treaty rule/rule of custom
 Basic principles of law found in national legal systems (common to many/most
domestic legal systems)
 E.g., the principle of good faith

**

Other sources of international law

 While Article 38 of the ICJ Statute outlines the main sources of international
law, in practice, other informal/non-traditional sources also play a crucial role
 Such as:
 Resolutions of international organizations
**
 Soft law
**
 There is no hierarchy of sources of international law  not explicitly provided
for in Article 38 of the ICJ Statute
 Scholars categorize treaties, custom and general principles as the 3 main
sources of international law (primary source)
  Judicial decisions and academic writings, however, are often regarded as law-
determining agencies which deal with the interpretation of international law
(subsidiary/secondary sources)
**

The law of treaties

 The scope is through the Vienna convention on the Law of Treaties

 The VCLT was adopted to provide a clear and consistent legal framework for
the definition, interpretation and application of treaties
 Before the VCLT, States regularly entered into treaties, but there were no
universally accepted rules governing how treaties should be formed,
interpreted or terminated
 This led to confusion and inconsistency in treaty practice
 The VCLT was introduced to codify and clarify the law of treaties and to
ensure that States adopt a uniform approach when dealing with treaty-
 **

Definition of a treaty: an international agreement concluded between States in

written form and governed by international law, whether embodied in a single
instrument or two or more related instruments, and whatever its designation

 Synonyms: conventions, international agreements, pacts, general acts,

charters, protocols, statutes, covenants

Categories of treaties

 Bilateral (two parties)

 Multilateral (multiple parties)
 Constitutive (constituting an international organization or a court)

Treaties

Formal requirements for their conclusion

 Ask 4 questions:
1. Does the ‘document’ meet the elements of the definition of a treaty
- International agreement
- Concluded between States
- Written form
- Governed by international law

2. Who can sign a treaty

- The head of state
- The head of government
- The minister of foreign affairs
- The head of diplomatic missions
- Representatives accredited by states to an international
conference/organization or one of its organs
 Such a person must present appropriate full power, granted by the Head of
State (it is a document authorising this person to sign a treaty)

3. Is there express consent to be bound by the treaty

- Has the state shown that they want to have rights and obligations flowing
from this treaty
- Article 11 of the VCLT: the consent of the state to be bound by a treaty
may be expressed by signature, exchange of instruments constituting a
treaty, ratification, acceptance, approval**
- To determine whether there is express consent, first look at the adoption
of the treaty
- This means that States formally agree to the content and to the text of that
treaty
- At this stage, legally binding obligations are not yet created for States
- A signature by authorised persons with full powers indicates a States initial
consent to the treaty
- If a treaty is subject to ratification, the signature does not establish a
consent to be bound
- A State that has signed but not yet ratified a treaty is obliged to refrain
from acts that defeat*
 - Article 14 of the VCLT: The formal act by which a State expresses its
consent to be bound by a treaty
- Ratification requires legislative approval (an internal act of approval)
- States deposit their instruments of ratification with a designated depository
- Upon ratification, the State is legally bound by the treaty under
international law
- Article 15 of the VCLT: Accession is the process by which a State can
become party to a treaty it has not signed
- This is typically used for States that wish to become parties to a treaty
after it has already been negotiated, adopted and signed by other States
- Accession has the same legal effect as ratification

4. Is the treaty registered

- Article 80 of the VCLT: After entry into force, the treaty must be
registered/transmitted to the Secretariat of the UN
- **

Observations of a treaty

 Once a treaty is in force, States are legally bound to follow this treaty
 It must be performed in good faith
 This is according to the principle of pacta sunt servanda
 Article 26 of the VCLT: Every treaty in force is binding upon the parties to it
and must be performed by them in good faith

Reservations of treaties

 The VCLT allows a State to refuse to be bound by a provision of a treaty that it

does not agree on, while still being bound by the other provisions of that treaty
 This is done through what is known as a reservation
 Article 2(1)(d) of the VCLT: A reservation is

Elements of a reservation
  A unilateral statement
 Made by a State
 When entering a treaty
 That aims to exclude or to modify the legal effect of certain provisions of
the treaty
 In its application to that State

Limitations to treaty reservations under the VCLT

 Article 18 of the VCLT: when may a reservation not be made

1. Where a treaty prohibits it
2. Where a treaty provides only for specified reservations
3. Where the reservation is incompatible with the object and purpose of the
treaty
 Article 20 of the VCLT: there is no need for acceptance of reservation by all
States if a treaty expressly authorises it
 If a treaty says, “ States may make reservations to Article 5”, then a
reservation to Article 5 is automatically valid without needing every other
State’s approval
 Article 20(2): reservation requires acceptance of all states if it is clear from rhe
negotiating States and from the object and purpose of the treaty that for it to
apply in its entirety it requires the consent of each state to be bound
 **

Reservations of treaties vs interpretive declarations

 A reservation must be distinguished from an interpretative declaration

 Interpretative declarations: unilateral statements by a state or international
organization clarifying the meaning or scope of a treaty or its provisions
without altering its legal effect
 Reservation: statements by State/international organization that modifies the
legal effect of certain treaty provisions, allowing them to exclude or alter the
application of those provisions
Invalidity of a treaty

 Article 53 of the VCLT: a treaty is void and had no legal effect if it conflicts with
a jus cogens norm or peremptory norm of general international law
 A “norm” accepted and recognized by the international community of
States as a whole as a norm for which no derogation permitted and which
can be modified only by a subsequent norm of general international law
having the same character” – E.g., the prohibition of genocide, prohibition
of apartheid

Termination or withdrawal of treaties

 Article 54 of the VCLT:

Termination

 Termination refers to the end of a treaty as a whole

 Once terminated, it ceased to have legal effect for all the parties
 Termination may occur either as stipulated within the treaty itself OR by
mutual agreement of all parties

Withdrawal

 Refers to the act of a single State withdrawing from the treaty

 Withdrawal only affects the withdrawing State, while the treaty continues to
bind the remaining parties
 **

E.g.,

* The UK’s withdrawal from the EU (Brexit) was conducted under Article 50 of the
treaty on EU  a withdrawal clause provided for by the treaty itself

Lecture 6:

***
Customary International law

The relationship between customary international law and treaty law

 Rules of custom and treaties can coexist

 A rule may exist both in treaty form and as a rule if custom**

How rules become rules of custom

 Initial practice: a group of States begin to adopt a particular approach to a rule

of international law
 Widespread adoption: more and more States follow this approach in their
foreign policy, domestic legislation and judicial decisions
 It is not a once-off act, it must be repeated and recognized across ‘many’
States
 The process often takes years and is global
 Evidence of legal obligation:

***

- E.g., General practice (usus), for example: people are coming from a war-
stricken country -> usus would be a State allowing people to come into
their country through signing particular documents or ensuring that
boarder control adheres to certain rights/obligations
- E.g., Opinio juris  the State believing that allowing refugees into their
country is some kind of legal obligation (through policy, contracts, etc.)

***

1. Is the behaviour repeated and widespread (have States been doing the thing
over and over again and is it widespread)
2. Do States show that they think the behaviour Is legally required (Opinio juris)
3. Is the practice carried out by a ‘representative’ group of States (not just a few)
4. Has any international court or authoritative body recognised the practice as
law
5. Has any State
To be bound by customary international law means

 The State must conform its conduct to the rule, even if it has not signed a
treaty codifying it
 The rule applies universally to all States, except the
 **

Usus

 This is the conduct element (what States do)

 It is the consistent practice of States
 This practice can be physical, verbal acts or inactions
 Usus can take many forms:
 For example, how States perform diplomatic actions with other States
 Acts taken internally by States through their legislatures or courts
 Acts taken by States before international organizations
 Deliberate inaction by States (e.g., Non-use of nuclear weapons)

Duration and consistency of practice

 There is no fixed time requirement

 The time would depend on the circumstances of each case
 The important thing is that the act remains consistent

Case law: Norwegian Fisheries case

 There must be ‘consistent and sufficiently long practice’, but also that ‘too
much importance need not be attached to the few uncertainties or
contradictions real or apparent’ that may exist in practice

Case law: Nicaragua case

 ‘Absolutely rigorous conformity with the rule’ not required

Opinio juris

 This is the ‘mental’ element of customary international law

 It refers to the belief by States that they are engaging in
 **

Evidence of Opinio juris

 Treaty participation: the willingness of States to enter into and to comply with
treaties indicate that they believe in the legal obligations set out in the treaties
 To determine evidence of opinion juris, the ICJ looked at the behaviour of
States in treaty participation to assess whether they acted out of a sense
of legal duty
 Resolution in international forums: consistent support for resolutions can show
that States view the practice as mandatory under international law
 The ICJ examined how States voted in UN Resolutions to determine if
they believed their actions were legally required or not
 Official publications: States documents and reports that outline a States
**
 To determine if State practice and opinio juris have become customary
international law, we must look at sufficiently widespread and representative
participation
 Does every region have some sort of representation in this matter?

When is a State not bound by a rule of custom

 If a State refuses to consent to a new/emerging rule of custom, they are not

bound by that rule
 Only if the State can prove that they have expressly or tacitly opposed the
specific rule during the formation of that rule, then they are not bound

Key elements

1. Consistent objection: the State must consistently object to the rule while it is
emerging
 2. Clear communication: the objection must be clearly communicated to other
States and international bodies
3. Timing: The objection must be maintained from the time the practice begins
to develop into a norm

How can a State be held accountable

1. State responsibility:
2. International Dispute settlement
 Accountability can be pursued through:
- Diplomatic means
- International adjudication

Lecture 7:

The persistent objector

 A State must consistently object to the rule while it is emerging

 What if the State did not exist when the rule was emerging?
 There is no ‘ex post facto’ objection for New States: if a new State
emerges after a rule has the rule of custom

Jus Cogens and Erga Omnes

1. What are jus cogens norms and erga omnes rules? How are they defined?
2. What is the legal effect of these rules
3. What are some examples of these rules in international law

Jus cogens

 Defined in Article 53 of the VCLT

 It is a peremptory norm of general international law that is accepted and
recognized by the international community of States as a whole as a norm
 from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
 **
 When a norm is said to permit ‘no derogation’, this means it has no
exceptions
 It has a stringent threshold for modification or amendment
 This also suggests that jus cogens norms hold a hierarchically superior
position within international law
 It is also universally applicable; they are above customary international law as
they do not permit exceptions

Prohibition of Slavery as a Jus Cogen Norm

 This is a jus cogen norm that forbids the ownership, control or exploitation of
one person by another in any form including contemporary manifestations
such as human trafficking, forced labour, debt bondage and servile marriage
 This prohibition is non-derogable: NO EXCEPTIONS or JUSTIFICATIONA are
allowed under any circumstances
 **
 Examples of jus cogens norms:
- Prohibition of aggression
- Prohibition of genocide
- Prohibition of crimes against humanity
- Basic rules of international humanitarian law
- Etc.
- Any rule that is contrary to these norms will then be invalid/void

Nature of jus cogen norms

 Reflect and protect the fundamental values of the international community

 They are universally applicable and hierarchically superior to other rules of
international law
 Most jus cogen norms are custom in nature
 The difference is, no persistent objector are superior to rules of custom, but
are derived from rules of custom

The identification criteria for jus cogens

  While Article 53 of the VCLT does not explicitly outline the criteria for jus
cogens norms, many States, scholars and international law commission have
argued that it still forms the basis for determining with norms qualify as jus
cogens
 For a norm to qualify ha shaving jus cogen status:
1. It must be a norm of general international law
2. Must be accepted and recognized by the international community of States

The identification criteria

1. It must be a rule of custom

2. It must be accepted and recognized as a norm that permits no derogation
and can be modified only by **
 The ICJ would identify norms by considering the circumstances of the case on
an ad hoc basis as well as the nature of the norm
 They would ask: does the norm reflect and protect the fundamental values of
the international community  is it universally applicable  does it hold a
hierarchically superior status over other rules of international law

Erga omnes

 This refers to obligations the State has towards the international community
as a whole
 The concept was articulated in Barcelona Treaties case 1970
 Even a non-injured State can hold a State in breach responsible for violating
an erga omnes norm (even in the absence of a treaty)
 Not all jus cogens norms are erga omnes obligations
 Jus cogens norms give rise to obligations that are owed to the international
community

Lecture 8:

Concept of international legal personality

  The concept is lacking in fixed content
 When an entity has international legal personality, the implications differ from
entity to entity

Definition:

 International legal personality refers to the capacity of an “entity” to possess

‘international rights and duties’ and to have the capacity to enforce them by
bringing international claims
 Consider the doctrine of privity  He who is not part of a contract has no
rights to benefit from or sue from it

Historical perspective

 Classical international law (17th to 19th century)

 States were the sole subjects of international law
 Grotius, Vattel and other natural law theorists saw the State as the only
capable entity that has a moral authority within international law
 20th century developments expanded international legal personality to:
 International organizations (e.g., the UN)
 Individuals (e.g., post-Nuremberg trials, human rights law, international
criminal law
- States cannot be held criminally responsible for crimes they commit
 Corporations and NGO’s

Theories that underscore legal personality

Realist theory

**

Fictional theory

 Argues that only human beings are real subjects of law

 All other entities (States,
 **

Functional theory
  The theory is accommodative
 It is one of the most practical and widely applies approaches in modern
international law
 It combines the realist and fictional theory, but it goes a step ahead to include
organizations and certain non-state entities as subjects of international law
 **

Pluralistic theory

 Argues that multiple types of entities can be subjects of international law, not
just States
 They further argue that international legal personality is not exclusive to
States, butt distributed across a range of actors with different levels and forms
of personality
 States cannot function in isolation in the modern era of international law,
where cross-collaboration is required

Criteria for the determination of international legal personality

Core elements of international legal personality

1. Possession of international rights (entitlements)

2. Possession of international duties
3. Capacity to act (locus standi) or to bring a claim on the international plane

Entities with international legal personality

- States
- International organizations
- Individuals
- International governmental organisations
- Non-government organisations
 - **

States

 These are the primary subjects of international law

 According to the Montevideo Convention on the rights and duties of States,
States as subjects of international law should possess the following
qualifications:
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other States

Rights of States

1. Exist as a sovereign body

2. Self-defence
3. Equality in the international order
4. Treaty-making capacity
5. Membership in international organizations

Conceptual definition of international organizations

**

Lecture 9:

The criteria

a) Permanent population
 There is no minimum size requirement
 Some States have less than 1 million populations (they will be considered
micro/mini States)
 But it does seem unfair that these States have the same voting rights
d) Capacity

* Without a government, there is no agent to enter relations

The question of Palestine

 Some argue that Palestine qualifies as a State under international law, while
others are of the view that it does not
 Palestine officially declared its independence in 1988
 Palestine meets 3 of the criteria: has a permanent population, a defined
territory and
 **

A critique of the application of the Montevideo criteria

Failed State

Lecture 10:

Jurisdiction

 It is an important aspect of sovereignty

 Jurisdiction is the power that the State has to exercise its governmental
functions through legislation, executive enforcement action and juridical
decrees over persons and properties
 There are two aspects of a State’s criminal jurisdiction:
 Prescriptive jurisdiction: The ability of a State to criminalise certain conduct
 Enforcement jurisdiction: The ability of a State to apply and enforce its laws
(e.g., to arrest and sentence individuals)

Case law: The Lotus Case

  Enforcement jurisdiction can be exercised extraterritorially if international law
permits it while prescriptive jurisdiction cam be exercised extraterritorially
UNLESS international law prohibits it

Principles of jurisdiction

1. Territoriality
2. Subjective and objective jurisdiction
3. Protection of State
4. Nationality
5. Passive personality

Lecture 12:

State responsibility

 Definition: an internationally wrongful act which results from the breach by a

State of an international obligation so essential for the prosecution of
fundamental…

Draft Articles on Responsibility of States for Internationally Wrongful Acts

(DARSIWA)

 Not a treaty
 Most provisions have customary status  Binds all States
 Important to consult the ILCs commentaries on the Draft Articles on State
Responsibility

4 Steps to State Responsibility

1. Is there an internationally wrongful act? (breach of an international obligation)

2. Is it attributable to State?
3. Are there any circumstances precluding wrongfulness
4. What reparation is available to repair the damage?
Internationally wrongful acts

 Articles 1, 2 and 3 of DARSIWA tell us what these are

1. Every internationally wrongful act of a state entails its international
responsibility
2. An internationally wrongful act exists when conduct consisting of an act or
omission
a) Is attributable to a State under international law and
b) Constitutes a breach of international obligation of the State
3. Characterisation …

E.g., Rwanda and Congo  use of force

Attribution

 Who is the actor? (has to be a State)

 Is the action of the actor attributable to the State?

Article 8 DARSIWA

 The conduct of a group of persons shall be considered an act of State under

international law if the person or group of persons

Case law: Nicaragua v USA

 Came up with the idea of effective control  a State having supported

another actor does not necessarily mean that they are responsible for the
actions of that actor
 The court says that the USA should have given a direct, specific instruction
for responsibility to be attributable to them

Case law: Prosecutor v Tadic

 Was the conflict international?

 There needs to be two or more States involved for it to be international
 Also put together 2 degrees of control:
 1.

Case law: Bosnia

Lecture 13:

Exam question: 5 marks  discuss UN reforms in your opinion (be reflective and
critical)

UN and the maintenance of international peace and security

Establishment, purposes and principles of the UN

 Regulated by Articles 1 & 2 of the UN Charter

 It was created after WWII because the powers failed to maintain global peace
and security
 It is empowered to take collective measures  peacekeeping operations
 Organs charged with the task are the UN Secretariat, the UN security council,
and UNGA
 Article 2(4) of the UN Charter:

UN structure – principle organs

 Regulated by Article 7 of the UN Charter

Voting in the Security Council and the General Assembly

 The 5 powers of the world have veto power (USA, UK, France, China, Russia)
 There are 10 more non-permanent members who have been elected for 2
years
 The African countries that have seats in the UN are the A3
 Algeria
 Sierra Leone
  Somalia
 Regarding settlements of disputes, the concerned state must abstain from
voting
 Procedural matters require an affirmative vote of 9 members
 Other matters also need an affirmative vote of 9 members (including the votes
of the P5)

General assembly

 Each member has one vote and there are no veto powers
 Decisions on important questions require a 2 thirds majority of the present
members’ vote
 Decisions on other questions require a majority vote (simple majority)

Powers of the General Assembly in relation to international peace

 Include making recommendations to the UNSC

 UNGA may not make recommendations on issues that are already being
considered by the UNSC

 If an action is necessary, the UNGA may refer the matter to the UNSC

Are recommendations and resolutions of the UNGA binding?

 Resolutions having to do with its internal management = binding

 Matters affecting international peace and security and settlement of disputes =
not binding
 But they are of persuasive value because they hold political weight

Legal consequences of resolution by the General Assembly

*…

Powers of the Security Council in relation to international peace

  The Security Council does not make binding decisions
 The chapter deals with matters that do not threaten international peace and
security

UNSC Chapter VII Powers

 The UNSC makes legally binding resolutions

 Triggering Article 39 action
 UNSC has the power

UN Reforms

Lecture 14

The African Union

 The Organization of African Unity became the African Union in 2000

 The OAU needed reform because it was unable to address critical political
and economic challenges of the continent
 The AU was formally inaugurated in 2002 in Durban

Objectives and principles of the AU

 Articles 3 & 4 of the AU Constitutive Act specify the principles and objectives
of the organization

Article 3

 Article 3 sets out that they are to:

 Enhance political and economic integration of Africa
 Promote and defend African positions on issued of common interests
 Promote peace, security and stability
 Promote democratic principles and good governance
Article 4

 Article 4 relates to peace and security issues

 There are two categories of principles:
1) Speaks to generally recognized principles under international law
(prohibition of the use of force, peaceful coexistence among member
states, respect for democratic principles and human rights
2) Highlights new thinking and approach among member states (common
defence policy, common response to political and economic challenges,
right of the AU to intervene under conditions of war crimes, genocide and
crimes against humanity)

Lecture 15:

 a

Tutorial 1:

The nature and history of international law

 The definition of international law is important and it threefold:

 A body of legal rules and principles and norms that regulate the conduct of
States and other international actions in their interactions with other States
 The subjects of international law:
 States
 International organisations
- Created by states
- Enjoy legal personality (confirmed in the reparation for injuries case)
- Can bring claims
- Can exercise their rights and obligations
  Individuals and non-state actors
- In the past they were traditionally excluded, but are now recognized as
having rights and obligations
- Influence norm development but lack full legal personality
 The difference between national law; public vs private international law;
foreign law
- National law: Law that applies to a country within their boarders
- Private international law: Governs the relationships between states
- Public international law: Regulates the relationship between States
through treaties
- Foreign law: Domestic law of another country

TWAIL – Third world approaches to international law

 The school of thought that critiques international law from the perspective of
the Global South
 This is countries that were colonised and are economically and politically
marginalised in global affairs
 They argues that international law is not just about rules, but it is also about
power

Theme 2

Sources of international law

 Article 38 of the ICJ Statute provides for 4 sources:

1. Treaties
2. Customary international law
3. General principles of international law
4. Judicial decisions/writings of the most highly qualified publicists

Treaties

 Article 2(1)(a) of the Vienna Convention on the law of treaties

 These are international agreements concluded between states in written form
and governed by international law
  It could be embodied in a single instrument or two or more related instruments

Formal requirements for the conclusion of a treaty

1. Does the document meet the definition of a treaty?

2. Who can sign a treaty?
- Any person who has full powers (Article 7 VCLT)
- Any other person as a representative (must have full powers)
3. Is there express consent to be bound by the treaty
- Adoption: where the States have a formal agreement with regards to the
text itself
- Signature: States express initial consent to be bound by the treaty (will not
apply if the treaty still needs to be ratified)
- Ratification: State formally expresses consent; deposits it with treaty
depository
- Accession: a State can join a treaty afterwards, even if they did not initially
sign (with retrospective effect)  Article 15 VCLT
 Same legal effect as ratification
4. Is the treaty registered
- Regulated by Article 80 VCLT/ Article 102 UN Charter

Reservations of treaties

 Article 1(2)(d) defines it as:

 A State has given express consent to be bound by a treaty, but on the
condition that they can exclude/modify certain provisions of that treaty
 Article 19
 3 situations where a reservation can’t be made (limitations):
1. A clause in the treaty prohibits reservations
2. The treaty only allows specific reservations
3. The reservation is incompatible with the object and purpose of the
treaty
 Article 20

Invalidity, termination and withdrawal of treaties

Article 53 & 64 VCLT

 A treaty will be void ab initio if it conflicts with a ius cogens norm

 If a new ius cogens norm emerges, conflicting treaties become void and
terminate

Article 54 VCLT

 With termination, the treaty ends for all parties

 With withdrawal, only one State party is exiting but the treaty continues for
others
- Only allowed if the treaty provides for a withdrawal clause or with consent
of all parties

Customary international law

 1) Formation:
1. Urus (state practice)
2. Opinio juris (the belief that you are legally obliged to follow that practice)

2) Persistent objector rule

* States not bound if they consistently and clearly object from the start

Tutorial 2:

Theme 3

International legal personality

 Refers to the capacity of an entity to have international rights and duties

 Who can do what on the international stage
 Concluding treaties
 Having rights protected under international law
 Have the power to enforce these rights by bringing international claims

Who can have this

States
  They possess the most comprehensive form of full international legal
personality
 They are the primary actors
 They have capacity to create new rules, enter into treaties and be held
responsible for their actions
 International organizations have only partial/limited international legal
personality
 E.g., The UN, EU, etc.
 The scope outlined in the founding documents highlights their function and
purpose  they only have LP to the extent that they have to fulfil their duties

Case law: The reparations case

 A UN mediator was assassinated in Jerusalem while performing his official

duties
 The legal question was, could the UN as an international organization bring
an international claim against the State responsible for his death
 The ICJ said  the UN, although not a State, has a separate legal personality
from its member States
 It therefore had capacity to bring a claim
 This capacity was necessary for the UN to perform its functions

Individuals

 Previously not considered subjects of international law  only objects (no

rights/duties)
 There was a change with the Nuremberg trials, where individuals were held
responsible for international crimes
 This concept has expanded which the rise of international human rights law

NGO’s and transnational organizations

 Can be held responsible for a wrongful act  who can be held responsible?
 An act is attributable to an international organization if it is committed by one
of its organs or agents under the “effective control” of the organization
Theories of international legal personality

 Realist theory: only States are the true subjects of IL, all other entities are just
creations of States
 Functional theory: the most widely accepted theory  and entity has ILP to
the extent necessary to fulfil its international functions
 Pluralistic theory: the most modern approach that acknowledges that IL is
getting more complex  it has multiple actors that can be simultaneously
subject to IL

Consequences of having ILP

 Brings both rights and duties…

Statehood

Article 1 of The Montevideo convention of 1933**

 The most widely accepted definition of a State

 There are 4 criteria which must all be present:
1. Permanent population  size irrelevant, must just be a stable
community of people
2. Defined territory  must be fixed and identifiable
3. Government  must be an effective government in control of its
territory and independent of any other State
4. Capacity to enter into relations with other States  the ability to
conduct its own foreign affairs on a sovereign basis

Failed State

 A state where the government has lost effective control

 The government is unable to provide basic public services  e.g., Somalia
 A State does not lose its Statehood just because it is a failed State
  Withdrawing recognition of a failed State is considered politically
unacceptable

Characteristics of a failed State:

- *
 Other countries cannot invade into a failed State’s affairs without
‘permission’ from the

Case law: The Kosovo Advisory Opinion

 Dealt with the legality of Kosovo’s declaration of independence  Was it in

accordance with international law?
 The ICJ found that …

Jurisdiction

 Refers to a State’s authority to exercise its governmental functions

 Includes the power to legislate, enforce laws and make judicial decrees over
people and property
 There are 2 categories:
1. Prescriptive jurisdiction: a State’s power to create and apply its laws to a
situation
2. Enforcement jurisdiction: A States power to enforce its own laws through
actions like arrests  can only happen within States own territory

Case law: The Lotus case

 A French steamer was named the SS Lotus and collided with a Turkish vessel
that led to the death of several Turkish sailors
 Turkey arrested and persecuted the French officer on board
 The court held that a State is free to exercise its jurisdiction within its own
territory
 The only limit on this freedom are those explicitly found in international law
  The court found that Turkey had not violated any such rule  States are
presumed to have a wide jurisdiction
 In the absence of a prohibition in international law, States have a wide
discretion to extent the application of their laws and jurisdiction to persons
and property outside their territory.

Principles of jurisdiction:

1. Territorial principle: States have jurisdiction over all acts committed within its
territory
2. Nationality principle: a State has jurisdiction over its nationals regardless of
where they are in the world
3. Proactive principle: a State can exercise jurisdiction over acts committed
abroad that threaten its national security
4. Passive personality principle: a State can prosecute certain crimes such as
piracy, war crimes and crimes against humanity regardless of where the crime
was committed or the nationality of the perpetrator

NB Case law:

 Belgium issued an arrest warrant against a foreign minister for alleged war
crimes
 The ICJ **

Recognition

State vs Government

 A State is a permanent entity with ILP that meets the Montevideo criteria
 A government is the temporary administration that runs the State

The nature of recognition

 Recognition is a fundamentally political act

 States grant or withhold it based on their political interests

De facto vs De jure Recognition

Withdrawal of recognition

 Assumed when a new government is recognized

 Also possible to withdraw recognition without a new successor  it is
politically unacceptable

Tutorial 3:

 Article 3 objectives: basis for understanding African Union law

 Article 4: The principle core tensions
1. Nom-interference by any member state in the international affairs of
another (4G)
2. The right of the union to intervene in a member state pursuant (4H)
namely genocide, war crimes and crimes against humanity
3. Respect for democratic principles, human rights, the rule of law and
 The AU used to be the Organization of African Unity and was in need of
reform because it was unable to address critical political and economic
challenges of the continent

Structure of the African Union

1. AU Assembly of Heads of State and government

Madagascar conflict as an example of the military coup

APSA

 APSA is an operational framework for conflict management

A. 2
B. 1
C. 3
 Functions/roles of African Union organs are what is most important
State control > accountability

Inequality of protection

The African Union must practice what they preach

Exam questions

1. Define state responsibility

 Go through the steps of state responsibility (attributable to a state, has there
been a breach, circumstances that preclude wrongfulness, permission to
reparations)
 Then answer the question, apply it to the facts
 Steps: Introduction, theory, application, answer the question, conclude
2. Mention the principle in the Arrest Warrant case  deals with immunity before
the ICC
 Immunity does not apply to incumbent heads of state or other high ranking
officials when facing prosecution for international crimes before the court
 Article 27(2) of the Rome Statute states that immunities under
national/international shall not bar the court from exercising jurisdiction over
them
 SA’s obligation  Article 98 (SA is party to the Rome Statute)
 Article 86 of the Rome Statute says a party to the statute must cooperate
fully with the court
 The court must have gotten consent from Zimbabwe to arrest their citizen
 Mention the Jordan case  appeals chamber held that when a situation is
referred to the ICC by the Security Council under Article 13(b) of the Rome
Statute, Zimbabwe is placed in a position like that of a state party for the
purpose of the statute’s provision on cooperation
 The non state party would have an obligation to cooperate with the court
which includes the duty to waive immunity for the head of state
 The ICC’s purpose with DIPA is to give effect to the Rome Statute
 DIPA would be overruled by the ICC Act
 Kaavia is not entitled to immunity
 3. Territoriality, subjective and objective territoriality, Nationality, Universal
jurisdiction, Protection, Passive what what

4. Montevideo convention: Permanent population, capacity to enter relations

with other states, defined government, tswi

5. UNSC, General Assembly

6. Monism is when a treaty binds a state once such a state ratifies a treaty
without it being transformed by parliament

Question 6:

 Article 24 of the UN Charter says that the UNSC’s primary responsibility is the
maintenance of international peace and security
 Article 34 states that the UNSC may investigate any dispute that may give
rise to international friction
 Article 41

Question 7

 Constitutive approach  Mere recognition sufficient

 Declaratory approach 

Question 8

1. Economic sanctions
2. Travel bans
3. Expulsion of diplomatic representative/nationals
4. Excluded from membership in international organizations
5. Use of force
 6. Punishment for international crimes

Question 9

 DA v Minister of International relations and cooperation (has to do with

withdrawal from a treaty)  the HC found that a notice of withdrawal is
equivalent to ratification which requires approval in terms of S231 of the
Constitution

Question 10

 Contributionists and critical traditionalists

Question 11

1. Prescriptive jurisdiction
2. Enforcement jurisdiction

Question 12

 Passive personality allows a state to exercise jurisdiction over a person who

engages in an international crime that harms—

Question 13

Question 14

 Accession