International law quick notes. Brief notes on international law. Introduction to international law. Relationship between domestic and international law

1. Principles of
International Law
Part 2, HPOS, University of Zimbabwe, S. Hofisi, 2017

2. “
”
What is IL?
Traditionally called Law of the Nations
Evolving to include many actors: IGOs and Non-State Actors.

3. Common misconceptions
IL is not law; it is only expressive of the wishes of
States; a country’s domestic legal infrastructure is
not bound by IL

4. IL as law

5. Whether IL is really Law?
• Law as defined under
municipal law can be
understood as a set of
rules that govern a
particular society. The
content of these rules may
be derived from morals.
The rules may be found in
statutes, court decisions or
national constitutions.
• International law has a set
of rules that govern States
and other entities. Content
derived from customary
international law and State
practices. Rules found in
treaties, declarations,
protocols and so on.

6. Normative dimension
• The normative nature of
domestic law is reflected
in the Constitution as the
Grundnorm. Zimbabwe for
instance has constitutional
values that are enshrined
in section 3 of the
Constitution of Zimbabwe
2013. They include rule of
law, human rights,
constitutionalism and so
on.
• IL is sometimes referred to
as the general Constitution
of mankind. Its normative
nature is found in the jus
cogens or peremptory
norms under Customary
International Law.
Declarations such as the
UDHR and Guidelines such
as SADC GUIDELINES ON
ELECTIONS are important
in this regard

7. Existence of a Legal system
Domestic legal system
• Domestic legal system can
be defined as the sum total
of the rules and regulations
that bind a society.
Zimbabwean society has a
common law legal system.
It is also adversarial in
nature.
International legal system
• The international society
has a complementary
legal system (though
some may argue that
there are times it
supplants the jurisdiction
of national courts.

8. Existence of a Bill of Rights
• The core of the Constitution is
an expansive Bill of Rights or
Declaration of Rights. This is
found under Chapter 4 of the
Constitution of Zimbabwe for
instance-Three generations of
rights-CPR, ECOSOC and
Collective rights
• There is an international Bill of
Rights found in
treaties/conventions/covenants/
protocols.
• At the core of the United
Nations are three instruments:
The Universal Declaration of
Human Rights (1948); The
International Covenant on
ECOSOC Rights (1966) and the
International Covenant on Civil
and Political Rights (1966)

9. Justiciability v tractability
• The Constitution is
justiciable. The same holds
for the human rights that
are protected in the
Constitution.
Constitutional violations
can be addressed using by
asking courts to exercise
their powers of judicial
review.
• The international
instruments, and
customary international
law are used to audit the
status of State compliance
to human rights.

10. Example
• We can consider section 85
of the Constitution (The
Locus standi provision). It
liberalizes how someone
can protect her rights or
can have her rights
protected by others.
• We can consider the
complementarity principle
under ICC (Admissibility of
cases) as well as other
regional/international legal
infrastructure that allows
States or civil society to
appear on behalf of
citizens

11. Legal content on Protection,
promotion, respect rights and
obligations
• The State of Zimbabwe and
its institutions is obliged to
do the above as enshrined
in section 44 of the
Constitution.
• ECOSOC rights are rather
progressively realized but
States have certain
obligations expected by the
Constitution
• International laws assists
in determining the
minimum and core content
of the right. UN and African
Union for instance have
various Committees on
ECOSOC Rights which set
minimum thresholds for
right to education, housing,
shelter, and health.

12. Hierarchy of Sources
• Legislation can be
regarded as the most
binding source of law
followed by precedent,
common law, writings of
jurists and so on. E.g.
Constitution is an
extraordinary Statute and
the supreme source of the
law.
• Treaties are doubtlessly
the most binding source of
IL. States sign treaties to
sow commitment to the
contents. They ratify or
accede to treaties and in
this way are enjoined to
follow the provisions of the
treaty. Some treaties do
not allow States to pass
reservations.

13. Branches of law
Domestic branches
• There are branches of law
such as public law
(Constitutional and
administrative Law),
procedural law
(Conveyancing and Notary
Public) and private law
(contract, commercial law).
International branches
• IL has branches such as
Investment Law,
international
environmental law, IHL,
IHRL, IRL, etc.

14. Court Structure
• We have lower courts
(magistrates, labor,
administrative courts);
superior courts (High,
Supreme and
Constitutional Courts);
Special courts
(maintenance, fiscal, small
claims, etc.).
• Special courts
• International court of
justice
• International Criminal
Court
• COMESA Court
• SADC Tribunal (Disbanded)
• SADC Administrative
Tribunal (inactive)

15. Effective Sanctions
• John Austin, a legal
positivist (law as it is)
defined law as rules of a
sovereign to be obeyed. If
disobeyed one is either
prosecuted and sentenced
to a custodial or non-
custodial sentence if found
guilty.
• Sanctions may be applied
on States if they violate
international laws (they
decide to assume outlier
Status). Follow
developments in the DPRK
(North Korea). She is
inexorably pursuing a
nuclear policy and the
United Nations Security
Council has imposed
sanctions on her.

16. Some considerations

17. Law includes the law
in the sense of a legal
order, has for its
subject matter
relations of individual
human beings
• IL fits perfectly into the two
senses since individuals are
fast becoming its central
subjects. This is so if one
considers the competition
between state sovereignty and
concepts such as R2P,
complementarity principle under
the ICC, restrictive immunity
(Sovereign and diplomatic),
principle of proportionality (law
of war), crimes against
humanity and so on. We can say
it is law because there is a
semblance of a legal order.
With each other and the
conduct of individuals so far as
they affect others or affect the
social or economic order.
This definition is from Roscoe
Pound who was a legal realist
and an eminent American
Scholar

18. Law is a rule of action,
prescribed or dictated
by some superior
which some inferior is
bound to obey-
Blackstone.
• IL may fit into the two senses
since certain institutions can
impose decisions that should
be obeyed. These include the
United Nations Security
Council (either the referrals
of country situations (Darfur)
to the ICC or veto system
that can affect weak nations
(Zimbabwe and Syria)). We
can say IL is law because
there is some superior who
influence this system.
Law can also be seen from the
perspective of a sovereign who
issues commands that must be
obeyed.
This definition is from John
Austin and has been criticised
on the basis that not all
branches of law at municipal
law require the existence of a
sovereign-contract law has two
private parties. The Criticism is
important here.

19. As sum total of the
conditions under
which the personal
wishes of one man can
be,
• As such, IL is law as it has
conditions that result in
individual criminal
responsibility if individuals
(such as diplomats) violate
other individuals` freedoms.
Look at examples such as Al
Bashir, Gbagbo, Charles
Taylor, Lubango,
combined with the personal wishes of
another man, in accordance
with general freedom.
This definition is from
Immanuel Kant, a renowned
philosopher and is important in
that IL now allows individual
citizens to assert their rights
against their states or state
functionaries.

20. law as meant for the ordering
of things which concern the
common good; promulgated
by whoever is charged with
the care of the community.
• As such, IL is law as it has
norms and has as its goal the
need to ensure peace and
security for the international
community. The respect for
human rights is important for
the common good of the
community of humans-whether
municipal or international. The
sanctity of human life for
instance is at the centre of IHRL
and IHL-see the Pinochet, Al
Bashir, cases and the trials
under the ICTR, ICTR, and SCSL
This definition is from Thomas
Acquinas, a renowned natural
theorist is important in that IL
protects human rights norms
which were given to individuals
as divine rights-inalienable,
indivisible and fundamental.

21. law as what men generally refer
their actions to judges of their
rectitude or obliquity, seem to
me to be these three:- the
Divine Law; Civil Law; and law
of Opinion or Reputation.
• As such, IL is law looking at the
individuals’ relations, which
according to Locke men judge
whether their actions are sins
or duties by the DL, by the CL,
whether they be criminal or
innocent; and by O/R, whether
they be virtues or vices. IL fits
into the definition of the law of
opinion and divine law since
opinions of eminent jurists as
sources of IL. These opinions
also includes reports of
organisations such as ICRC, UN,
AU, and TRCs.
This definition from John Locke,
a renowned positivist is
important in that positivism
treats law as it is, not as what it
ought to be. IL is law and
arguments such as lack of
effective enforceability are
unmeritorious. Added to this is
the monist argument that IL and
ML are not separate legal
systems.

22. law as those rules of conduct
on which the existence of
society is based and violation
of which tends to invalidate
its existence.
• As such, IL is law that keeps the
international society (as
represented by states) intact.
Peace does not simply means
the absence of war, but also the
existence of a minimum core of
best practices in certain
conducts such as dealing with
reprisals, unilateral use of
force, preventive or anticipatory
self-defence, soldier law (enemy
combat, prisoners of war,
refugees, medical facilities, the
wounded, the sick and so on).
This definition is from
Goodhart, is important in that
IL has peremptory norms which
are part of the international
society. Added to this are
principles on sovereignty, use
of force, self-determination,
and so on which keep states
together and prevent intrastate
and interstate wars.

23. What officials do about
disputes is the law itself
• As such, IL is law that is
developed by state actors who
usually derive their powers from
their national law. Examples of
declarations such as the Harare
Declaration assist us in knowing
the attitude of certain states on
a specific international issue.
Some officials state their
positions on say the ICC, or
United Nations clearly and this
may provide insight to other
countries on how certain states
view IL.
This definition from Lywellyn,
is important in that IL develops
from declarations and state
proclamations on certain
international institutions and
doctrines.

24. Law is a coercive order of
human behaviour…it is the
primary norm which
stipulates the sanction
• As such, IL is law that has what
we call the jus cogens or
peremptory norms. The
normative framework is
gradually competing with
realism which views states as
competing for survival, and
which see politics as
continuous struggle for power
amongst nations. What is
peremptory/mandatory includes
respecting ratified treaties,
respecting what is committed to
through signing, discouraging
the passing of reservations to
thematic treaties and so on.
This definition from Kelsen, is
important in that IL has greatly
achieved its goal of regulating
human conduct.

25. Difficulties in regarding it as law
Pick aspects of domestic law that are not existent under IL

26. CONCERNS
• Police force to implement
laws in domestic law
• No police force to
implement global laws
(Interpol is not that
international as it is not a
standing force for UN or AU
or other regional blocs (You
can go to Interpol offices
near rotten row
magistrates court to
determine this argument
on your own.

27. No defined court hierarchy
• Domestic courts have a
review and appellate
hierarchy. One can appeal
against a finding of a
magistrates court to the
High Court or from High
Court to the Supreme
Court. Alternatively,
someone can apply for
referral of their case to the
Constitutional Court.
• The ICC deals with IHL
violations yet its seen as a
criminal court. Its
international status is
contestable. Since its
docket has African
situations. ICJ, special
courts etc. have no linked
hierarchy. SCSL sentenced
Charles Taylor to 50 years
yet he could not appeal to
the ICC.

28. Three pillars of the State
Trias politica doctrine
• Executive enforcing laws
• Judiciary interpreting laws
• Legislature making laws
• Separation of
powers/functions
• Checks and balances.
No trias politica
• No States executive (head
of all governments/States)-
UNSC?
• No Judiciary
• No legislature (Regions?
ICRC? International Law
Commission? UNSC?

29. No SOVEREIGN COMMANDS
• A sovereign is usually
the head of State and
Government
• John Austin would tell
you that sovereigns have
power to punish those
who break the law.
• No sovereign for States
although some States
can play the big brother
part. The UNSC usually
refers situations to the
ICC in terms of its
mandate to maintain
peace and security.

30. Enforcement challenges
• Individuals can attach
property or persons (civil
imprisonment) through the
Sheriff of the High Court or
Messenger of Court
• Courts can charge those
who disobey orders with
contempt of court
• No enforcement officers
• Courts depend on
cooperation of States
(Bashir example for ICC
and Joseph Kony again for
ICC).
• Orders are not usually
registered in national
courts (See Campbell
case).