Summary LCP4801_ INTERNATIONAL_LAW STUDY NOTES.

LCP4801_ INTERNATIONAL_LAW STUDY NOTES. International law’ more correctly refers to ‘public international law’, which is often used in the titles of international law textbooks. This distinguishes the subject from ‘private international law’, also known as ‘conflict of laws’. The latter forms part of the national law of a state for resolving conflicting legal positions involving the private law of different countries as it applies to the relationships between individuals. Thus, when we speak of ‘international law’ in this volume, we have ‘public international law’ in mind. States are therefore the main subjects of international law and their relations may be bilateral (one state to another) or multilateral (several states co-operating with one another under a multilateral treaty, or as members of an international organisation). The whole body of international law operates in a world of sovereign, independent states; and the purpose of the international legal order is to define and delimit the respective spheres within which each of the states is entitled to exercise its authority and defend its interests. The concept ‘Westphalian institutions’ or ‘Westphalian states’ refers to the coming into being of the modern state system. Three core principles were accepted at the time for interstate relations, and they are still valid today – namely, the principle of state sovereignty, the principle of the legal equality of states and the principle of non-intervention in the affairs of another state. HISTORY OF INTERNATIONAL LAW international law is a law of intellectual flow. It reflects the major ideological trends as they sweep through the world – each period sees the emergence of new and more complex subjects. Some of these trends can be summarised as follows: • The idea of international law as a law solely between states is linked to state sovereignty and remains the dominant theme of international law. • The idea of the international organisation as an entity distinct from its member states developed in response to the need to regulate issues affecting states as part of a world 2021 NOTES community and to place some limits on the potential for conflict inherent in a purely selfserving state sovereignty (see section 5 of this learning unit for more detail in this regard). • The idea of the individual as a ‘‘quasi-subject’’ of international law developed as a result of the atrocities of two world wars, the emancipation of colonial territories and the desire of the individual for acknowledgment of his/her human rights and their right to self-determination. LEGAL NATURE OF INTERNATIONAL LAW How, indeed, does international law function if it has no sovereign authority? How are its rules made, in the absence of a legislator, and, perhaps even more puzzlingly, how can the system work in the absence, by and large, of a police force, a Department of Justice, a set of prosecutors and all the other characteristics we usually associate with legal systems? Various explanations are offered for this state of affairs, one is that since states themselves make international law, they have little incentive to break it. An important role is also played in international law by considerations of reciprocity.23 If states A and B are at war, and A starts to mistreat B's citizens by violating the Convention on Prisoners of War, then B will be highly tempted to mistreat A's citizens as well, and may also start to violate that convention. A more recent explanation focuses on the role of legitimacy. A rule that is generally perceived as useful and that has been created in the proper manner may be seen as legitimate and thereby exercise a ‘compliance pull’. States need not be reminded that they need to adhere to such a rule; instead, they would want to adhere to it – it would be the right thing to do. Other considerations which may help explain why international law is reasonably well complied with include the idea that states are few in number and are attached to their territories; they cannot escape from each other, and it is decidedly costly to be a pariah state. An important related mechanism is well known from domestic contract law; if A violates a treaty, then B may do the same, or inadimplenti non est adimplendum. Other measures include self-defence and collective security action (including individual sanctions); and since the 1990s international law has even been in a position, on occasion, to imprison individuals who have committed war crimes and related acts. 2021 NOTES Differences between international law and national law International Law: There is no legislator in international law Has a judiciary but: (i) There is no precedent system (ii) The state is a judge in its own case There is no executive to enforce judgements – sanctions are poorly developed The subjects of international law are generally states or international organisations National Law: Complete legislative process (think parliament) Fully developed judiciary (i) Precedent system applies (ii) Nemo iudex in sua causa There is a complete executive machinery in order to enforce judgments The subjects of national law are individuals or legal persons Similarities between international law and national law International Law: Comprises accepted norms prescribing state behaviour Uses writings, etc. of jurists rather than morality Can consciously be altered by treaty National Law: Comprises accepted norms prescribing behaviour Writings of jurists and precedent are freely used Can consciously be altered by statute/ legislation 2021 NOTES The United Nations (1) Why is the UN not a legislator? How does it diff er from a parliament? The UN does not have the power to enact rules which are binding on all states. T The General Assembly (GA) may only adopt resolutions, and these are merely recommendations – states cannot be compelled to apply them. A parliament (as an instrument of national law), on the other hand, makes laws which are fully binding on the community it represents. In the UN, the representatives of states are not elected to the GA, but are appointed by their respective states, as opposed to a democratic parliament where the members are elected by the citizens of that specifi c state. Unlike the GA, the Security Council (SC) of the UN is entitled to give binding decisions however, these decisions are restricted to situations determined by the SC as constituting a threat to international peace and security. (5) LCP4801/1 (2) The national law precedent system v the International Court of Justice (ICJ). Does the ICJ follow a precedent system? Under the precedent system, lower courts are bound by the decisions of higher courts. This is the position under most, if not all, national law systems. However, the position is somewhat different under international law. Article 59 of the Statute of the ICJ provides that the “decision of the Court has no binding force except between the parties and in respect of that particular case”. Therefore, international law excludes the precedent system on two fronts: • The decision applies only to the parties involved: in other words, if the same issues arise between different parties, the court is not bound to give the same ruling; and • The decision applies only in that specifi c case. (3) Why do we say that the state judges its own case? On what basis are the judges in the ICJ appointed for a specifi c case? How does such appointment diff er from that in respect of the judges in a national case? In international law, the state itself decides whether there has been an infringement of international law, judges the matter itself, and takes whatever steps it decides on. States are also closely involved in the process of appointing the panel (the judges) that will hear their case. They can either elect their own representatives to the panel or they can at least elect people who will be sympathetic to their cause. It is in this sense that states are “judges” in their own case. Conversely, in national law, the legal principle nemo iudex in sua causa applies which literally means that no-one should be a judge in his own case. 2021 NOTES The plaintiff s or accused have no say in who will hear their cases – there is a permanent body of judges, magistrates, etcetera, who hear all cases. (4) Explain the difference between the executive ‘‘machinery’’ backing up national judgments and that backing up international law judgments? Municipal judgments are supported by the complete executive machinery of the state in the form of a police force, the military etc. In international law, there is no central executive authority with a police force at its disposal to enforce judgments. At the international level, the SC is entitled to make use of ‘‘sanctions’’ that can be brought against offending states. Chapter VII of the UN Charter allows the SC to direct its members, either individually or collectively, to use force against a state whose violation of international law constitutes a threat to international peace and security. The SC can also make use of economic sanctions against an offending state. THE RISE OF INTERNATIONAL ORGANISATIONS Perhaps the most common example of an international organisation is the European Union or the African Union. The members of these organisations are states and not private enterprises or individuals. Therefore, it is important to note that ordinarily, members of international organisations are states and this makes such organisations unique and different from private international unions or, their modern counterparts, non-governmental organisations (NGOs) whose members are private organisations/ enterprises or private individuals. 2021 NOTES LAERING UNIT 2: STATEHOOD AND RECOGNITION CATEGORIES OF INTERNATIONAL LEGAL SUBJECTS Original (primary) subjects An original subject is one which has its international legal personality simply by virtue of its existence. The state is the original, primary and principal ‘person’ of international law. If an entity meets all the requirements necessary for statehood (discussed below), it will automatically have international legal personality. Derivative (secondary) subjects These subjects have international legal personality only if and to the extent that the primary subjects have conferred it on them. Their mere existence does not guarantee them international legal personality. An example of a derivative, or secondary, subject is an international organisation. The latter is created by an agreement between its members (states). The extent of its legal personality is limited to those powers and duties for which the states that made it, provide. It is, therefore, more limited than that of states. INTRODUCTION TO STATEHOOD South Africa was one of the first African ‘states’ to be recognised as such when, in 1931, it was granted independence by the Statute of Westminster. Prior to this, it was a British Dominion with limited self-government. Then, during the inter-war period, South Africa was ‘entrusted’ with a mandate over South West Africa (now Namibia) by the League of Nations. DEFINING STATEHOOD First, there is the question of where to locate these criteria (and whether they are fixed). Here the difficulties of definition repeat themselves. However, many writers (almost as a reflex) begin with the four criteria contained in the 1933 Montevideo Convention on the Rights and Duties of States: 1. a permanent population; 2. a defined territory; 3. government; and 2021 NOTES 4. capacity to enter into relations with other states A defined territory States are ‘territorial entities’ or, according to the Montevideo Convention, they have a defined territory. This includes not just land itself but also the territorial sea (in the case of coastal states) and the air space above the state. Although states may have defined territories, many states have disputed borders – that is, disputes over the precise territorial boundaries of the state. In the North Sea Continental Shelf case, the ICJ noted: There is … no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not, as shown by the case of the entry of Albania into the League of Nations. A permanent population States are made up of people or have a ‘permanent population’, in terms of the Montevideo Convention. As is the case with territory, populations come in different sizes. Once again, the Vatican City is a good example of how small a state can be: as at 2006, it had only 768 inhabitants.33 While the ‘population’ for these purposes need not necessarily be nationals of the state, in the legal sense, a number of authors suggest they must have some relationship to the would-be state. In this regard, Craven notes: [T]he existence of a ‘population’ seems to be cast in metaphorical terms — they must exist ‘as if’ in relationship to an order of government over territory, in which their presence as objects of coercion is necessary, but their identity as participants in that political community remains indeterminate. Effective government There is general agreement that a government need not be a particular form of government (such as a democracy). As the International Court of Justice in the Western Sahara case found: No rule of international law, in the view of the court, requires the structure of the state to follow any particular pattern, as is evident from the diverse forms of state found in the world today. Effective government in this regard implies ‘a system of government in general control of its territory, to the exclusion of other entities’. As Craven notes: [W]hat is clearly meant, here, is that the government concerned must demonstrate unrivalled possession and control of 2021 NOTES public power (whatever the specificities of that might be in any particular setting), and that once that unrivalled possession is established with a degree of permanence recognition of statehood may follow.