Theme 1: The Nature and History of International Law

Question 1

The Nature of Public International Law (NB)

Answer 1

❖ There is no one definition of Public International Law.
❖ In other words, there are multiple definitions.

Question 2

❖ Dugard’s definition of PIL

Answer 2

A normative body of rules and principles which are binding upon states in their relations with one another

Question 3

Shaw’s definition of PIL

Answer 3

➢ Covers relations between states in all their myriad of forms, from war to satellites and regulates the operations of the many
international institutions

Question 4

Elaborate on the idea of states having international legal personality

Answer 4

A subject of international law is an entity possessing international
rights and obligations and having the capacity
(a) to maintain its rights by bringing international claims, and
(b) to be responsible for its breaches of obligation by being subjected to such claims

Question 5

What is having international legal personality?

Answer 5

the rights to possess international rights and duties to be able to enforce them

Question 6

Reparation for Injuries Suffered in the Service of the UN Case, 1949,
ICJ

Answer 6

➢ The UN is a subject of International Law and capable of possessing international rights and duties.
➢ It also has capacity to maintain its rights by bringing international
claims.

Question 7

Problems with this Definition

Answer 7

❖ These definitions ignore the role played by other actors such as
intergovernmental organisations (UN, EU, AU, etc)
❖ Not only states have international legal personality

Question 8

What is international Law?

Answer 8

➢ The main actors in the international community are states and intergovernmental organizations (NB).
➢ Bear in mind: International law is still mainly formed by States

Question 9

The Shearer Definition of IL

Answer 9

• That body of law
• which is composed for its greater part of the
  principles and rules of conduct
• which states feel themselves bound to observe
• and therefore, do commonly observe in their relations with each other
  and which includes also:
  1. The rules of law relating to the functioning of international institutions or organizations,
  2. their relations with each other,
  3. their relations with states and individuals; and
  ➢ Certain rules of law relating to individuals and non-states so far as
  the rights or duties of such individuals and non-state entities are the concern of the international community.

Question 10

What is Not International Law?

Answer 10

❖ International Comity
– Legally non-binding practices adopted by states for reasons of courtesy
❖ International Morality
– A branch of ethics – what is good? What is right?
❖ Private International Law (conflict of laws)– Concerns those relations between individuals whose legal relations are governed by the laws of different states.
❖ Other terms:
➢Foreign Law → The domestic law of a country that is not yours.
➢ Domestic Law → The law of your own country

Question 11

How is international law different
from other laws?

Answer 11

❖ In order to properly address the differences, you must consider the differences between:
➢ National Law; and
➢ Public International Law
❖ Furthermore, one must consider the jurisdiction of the ICJ.

Question 12

National Law

Answer 12

❖ A legislature capable of making laws.
❖ Fully developed judiciary doctrine of precedent (Common Law States)
❖ Fully executive machinery for the enforcement of judgements
❖ Subjects are individuals or legal persons

Question 13

Public International Law

Answer 13

❖ There is no legislature.
❖ No compulsory court structure, no system of precedent.
❖ No executive to enforce judgements – a poorly developed system of sanctions.
❖ Subjects are generally States

Question 14

Jurisdiction of the ICJ

Answer 14

❖ Contentious Issues (States disputing against each other)
➢ Both/ All parties to a dispute must consent to the jurisdiction of the ICJ.
❖ Advisory Opinions
➢ Jurisdiction is not an issue.
➢ The opinion is not binding. It just explains the legal issue

Question 15

John Austin on whether International really is Law?

Answer 15

The Command theory
Law is a command of a
political superior to a political inferior backed by the threat of
sanction.
➢ He concluded that international law is not law.

Question 16

Hart on whether International really is Law?

Answer 16

➢ Rejected the command theory. International Law can be seen as a species of
law.

Question 17

Some scholars on whether IL really is law

Answer 17

if no legislature, executive and compulsory court
system, then not law.

Question 18

Sir Frederick Pollock counterargument on whether IL really is Law

Answer 18

A legal system requires
the existence of a political community, and the recognition by its
members of settled rules binding upon them.

Question 19

The Counterarguments

Answer 19

❖ There is a political community. States.
❖ There is a body of rules and principles that comprise international legal order.
➢ United Nations Charter
❖ Members of the international community recognise these rules and
principles as binding upon them.
❖ International law is observed and honoured every day in diplomatic
and consular relations, trade, airs and sea traffic.
❖ Its binding quality is recognised by international and municipal courts and by statesman in their daily inter-state dealings.
❖ No national leader has repudiated international law existence.
❖ States obey international law, not because of fear of sanctions.

Question 20

The Sanctions

Answer 20

❖ Use of force
❖ Economic sanctions
❖ Exclusion from membership of international organisations
❖ Expulsion of diplomatic representatives / nationals
❖ Punishment for international crimes

Question 21

Types of International Law

Answer 21

❖ General (Global) and regional international law
➢ General → Rules and principles applicable to a larger number of
states.
➢ Regional – applies to a certain group of states in a particular
region (AU, EU, SADC).

Question 22

Difference between general and particular rules

Answer 22

➢ General applies to all states
➢ Particular applies to two or a few states.

Question 23

Critical Approaches to
International Law

Answer 23

❖ Herein the following is discussed:
➢ General Information about Critical Approaches
➢ Feminist Theory
➢ Influence of Feminist Theory
➢ Third World Approaches

Question 24

General Information About the Critical Approaches

Answer 24

❖ These theories/approaches revisit the history of International
Law and challenge the notion that International Law is universal.
❖ International Law based on the supremacy of Europeans over non-Europeans – the ‘duty’ to civilize and control non-Europeans.
❖ International Law – is a weapon to spread Eurocentrism – a
pinnacle for human civilization.
❖ International Law promotes imperialism and is gender biased.
❖ International Law encourages oppression of women.

Question 25

Feminist Theory

Answer 25

❖ Feminist theory takes as its central concern the position of women
and denotes a form of analysis.
❖ Places women at the center of inquiry and works for an end to the
oppression of and discrimination against women.
❖ It takes gender as its primary organizing category – gender vs sex.

Question 26

How feminist theory takes gender as its primary organizing category

Answer 26

➢ Gender is a social construct.
➢ Sex is biological.
➢ More so focused on Gender as the primary organizing category.

Question 27

Influence of Feminist Theory on International Law

Answer 27

❖ Human Rights Law
❖ International Criminal Law
❖ To redress the virtual exclusion of women…
Gender mainstreaming

Question 28

Human Rights Law

Answer 28

➢ International Human Rights Law’s gender-neutrality was problematic because it did not consider that the harmsuffered by women might be different from men.

Question 29

What does the influence of feminist scholars on International Human
Rights Law include?

Answer 29

▪ Vienna World Conference on Human Rights (1993)
▪ Declaration on the Elimination of Violence against Women,
199

Question 30

International Criminal Law

Answer 30

➢ ICTY (International Criminal Tribunal for the former Yugoslavia)
& ICTR (International Criminal Tribunal for Rwanda)
jurisprudence recognizes sexual violence as constituting:
▪ war crimes; and
▪ torture and enslavement; and
▪ crimes against humanity; and
▪ genocide

Question 31

What does the Rome Statute of the ICC also include?

Answer 31

Gender-based violent crimes in the jurisdiction of the ICC as constituting:
▪ War crimes
▪ Crimes against humanity;
▪ Genocide

Question 32

Explain the Influence of Feminist Theory on International Law to redress the virtual exclusion of women…

Answer 32

➢ From the most prestigious international positions and to bring women into influential policy and decision-making bodies.
▪ The ICJ established in 1945 (operational 1946) had its first female judge in 1995 (Dame Rosalyn Higgins) and first African female judge (Julia Sebutinde) in 2011.
▪ Art 36(8)(a)(iii) of the Rome Statute – requires states to consider the need for a fair representation of female and male judges.

Question 33

Gender mainstreaming

Answer 33

➢ Involves integrating concerns of gender into all the activities
funded or undertaken by an organization.
➢ Spreading responsibility for gender issues throughout the organization, through appropriate guidelines and training.

Question 34

Third World Approaches to International Law (TWAIL)

Answer 34

It re-examines and challenges the historical foundations of
International Law

Question 35

List the ways in which TWAIL re-examines and challenges the historical foundations of International Law

Answer 35

➢ It has brought the encounter between Europeans and non-Europeans to the center of this historical re-examination of International Law
➢ It argues that while International Law guarantees sovereign equality and self-determination, it carries forward the legacy of imperialism and colonial conquests.
➢ It advances a move away from the dominant Eurocentric vision of International Law.

Question 36

Explain the Origins of Third World Approaches to International Law

Answer 36

➢ Originates from the decolonization movement.

Question 37

The Three Objectives of TWAIL

Answer 37

➢ Understand, deconstruct and unpack the use of International Law.
➢ To construct and present an alternative normative legal structure for international governance.
➢ Seeks through scholarship, policy and politics to eradicate the conditions of underdevelopment in the Third World.

Question 38

The Four Characteristics of TWAIL

Answer 38

➢ It is antihierarchical.
▪ Opposed to a system where members are ranked according to status or authority.
➢ It is counter hegemonic.
▪ It is against leadership or dominance, especially by one state or social group over others.
➢ It is suspicious of universal creeds and truths.
➢ It is a coalitionary movement.
▪ A temporary alliance for combined action, especially of political parties forming a government.