LU7 - Public International Law PDF

2LRI102 INTRODUCTION TO LAW B Learning unit 7 – Lecture Notes Public and Private International Law We will establish the differences between public and private international law by discussing the role of public international law; the role of private i...

2LRI102 INTRODUCTION TO LAW B Learning unit 7 – Lecture Notes Public and Private International Law We will establish the differences between public and private international law by discussing the role of public international law; the role of private international law; the role of the United Nations. Outcomes: At the end of this learning unit, students must be able to: o Differentiate between public and private international law. o Describe the sources of public international law. o Describe important role players within public international law. o Briefly compare and contrast public international law and national or domestic law. o Restate the role of private international law. o Apply the above to a given problem. Prescribed readings o L Meintjies – Van der Walt and others 3 ed Introduction to South African Law – fresh perspectives (Pearson 2019): Chapter 22 Learning unit 7 – Lecture Notes National and International Law National law is the law that is applicable to a specific country, each country has sovereignty within its own geographical borders. Each country is entitled to make the laws in respect of their own territory. International law on the other hand is the law that applies outside of a country’s borders. International law lays down the rules generally accepted as binding on states and nations. International law can be classified as either public international law or private international law. Public international law regulates the relationships between states and international organisations, meaning how different countries interact with one another on an international level. Private international law, on the other hand, regulates the relationships between private individuals where the laws of more than one jurisdiction are involved (a.k.a. ‘conflict of laws’). Private international law is the body of laws used to regulate the legal relationship between two individuals from differing countries (jurisdictions), public international law is the body of laws used to regulate the legal relationship between two different countries. In this learning unit we will be focusing on public international law.  Learning unit 7 – Lecture Notes Public International Law Public International Law regulates conduct between states in order to achieve effective relationships. As society and technology have advanced globalization has spread to many areas of life, both social, political and economic. As connectivity between different nations as well as reliance on other states has increased the importance of building, strengthening and protecting relationships with other nations has become increasingly important for the prosperity of a country both commercially and geo-politically. Respecting the sovereignty of other nations presents certain challenges as one country cannot (*in theory) force it’s will upon another country. Accordingly, in order for an agreement under public international law to be binding on a state outside it’s borders, meaning in it’s dealings with other nations, that state must ratify the agreement. In order for an agreement under public international law to be binding on a state within it’s own borders, the agreement must be ratified AND incorporated into the national law of that state. In South Africa, this would involve a bill being drafted and sent to Parliament to follow the usual legislative process you learnt about in learning unit 6 in Introduction to Law A. Sources of public international law Above, agreements under public international law are mentioned, there are broadly speaking two sources of public international law; treaties and customary international law. Treaties is a broad term that is used to refer to agreements between countries. Treaties may be bi-lateral, between two countries, tri-lateral, between three countries, or multilateral, between many countries. Treaties may also be referred to as conventions, charters, covenants or protocols, there is little functional difference between the different names used. Customary international law, on the other hand, is similar to custom. That is norms (standards, expected conduct) that through extended and extensive usage have become binding. This means if a particular practice is observed by many countries for many years that practice may become a law, through it being adhered to by so many countries for such a long time. An example of customary international law is respecting the sanctity of and sovereignty of a nation’s borders, obviously this practice was observed following the fall of European and North American Imperialism. Resolving disputes Another area in which respecting the sovereignty of other nations presents unique challenges is in the area of resolving disputes and enforcement. There are a number of international courts such as the International Criminal Court (ICC), the European Court of Human Rights or the International Court of Justice but the jurisdiction of these courts is usually limited and a country must agree to appear before them. Short of invading another country, which is internationally regarded as an act of war, unless a country subjects themselves to the jurisdiction of the court there is no way to force an appearance before one of the courts. Countries can always make use of arbitration and negotiation to resolve disputes, usually with effective results. Learning unit 7 – Lecture Notes Differences between national and public international Law There are three main differences between national and public international law; No central legislative body in public international law No central executive authority in public international law No central judiciary in public international law No central legislative body in public international law National law is passed, generally speaking, by a legislature, whereas in public international law there is no central legislative body with the power to enact rules binding upon all states. There is no international legislature with the authority to enact international laws applicable to all nations. This is further evident when we look at the sources of public international law; treaties which are created by agreement between states and customary international law (‘Jus cogens norms’ norms or standards so important they merit obedience irrespective of whether other states or individuals agree). Legislation is not a source of public international law, it cannot be. Furthermore national law operates vertically meaning rules are imposed by the state, that is ‘from above’. You do not need to agree to every law created by national legislature in order for it to be binding on you. The rule of law requires that you comply with the law whether you, personally, agree or not, ‘no-one is above the law’. Whereas in public international law, ‘laws’ are created primarily through agreement, states must agree to be bound by the provisions of treaties and states won’t be bound to treaties they have not ratified. No central executive authority in public international law Due to the vertical arrangement of the state’s relationship with it’s citizenry enforcing the law, through the executive branch of government is unproblematic. Resulting in the domestic or national legal system having greater punishing and sanctioning value than international law. In the field of public international law, nations are (*in theory) operating in a horizontal relationship, neither party has more authority over the other (*in theory). Thus there can be no international police force or international army to enforce public international laws. Although enforcement cannot occur through an executive authority there are other means of attempting to enforce public international law such as financial sanctions or trade restrictions as was used in the case of Russia and the Ukrainian war or South Africa during apartheid. The effectivity of these other means is often rightfully questioned. No central judiciary in public international law There is no central judiciary in public international law, although there are a number of different international courts, their jurisdiction is based on consent, meaning states may decline to appear before a particular international court. There is very little that can be done to ‘force’ another nation to submit to the jurisdiction of the court. In national law, the state may use arrest and detention, probation or a variety of other methods to secure the presence of the accused at trial, this is not the case in public international law. Furthermore, a state may agree to appear before a particular international court but decline to follow the judgment (abide by the judgment). Again leaving the international community with limited enforcement methods. Learning unit 7 – Lecture Notes Public International Law and the Constitution The supreme law of South Africa is the Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’). No international agreement or customary international law can supersede the Constitution. That being said the Constitution does provide for public international law in section 231 by empowering the executive branch of government to participate in the formulation, negotiation and signing of treaties (creation of public international law). Importantly, in order for a treaty to be binding on South Africa, outside it’s borders, it must be ratified, meaning in it’s dealings with other countries. For a treaty to be binding domestically, meaning within the borders of South Africa, it must be incorporated into South African law by national legislation. Section 232 of the Constitution further indicates customary international law is law within South Africa unless it is inconsistent with national legislation or the Constitution. This means customary international law does not need to be incorporated into South African law in order for it to be applicable within our borders, subject to that customary international law being consistent with the Constitution. As mentioned above, no public international law can supersede (is more important than, can override) the Constitution as the supreme law of South Africa. Lastly section 39 (1) of the Constitution obligates courts to consider international law when interpreting the Bill of Rights, importantly it is not obligated to follow international law, but it must at least consider the international interpretation of that particular right. Learning unit 7 – Lecture Notes Role Players in Public International Law There are a number of international organisations that play an important role in the relationships between different nations. Below is a short list and description of some of the most relevant role players in public international law for South Africa’s purposes; UN The United Nations is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and serve as a centre for harmonizing the actions of nations. The UN was established after World War II with the aim of preventing future world wars, and succeeded the League of Nations, which was characterized as ineffective. AU The African Union is a continental union consisting of 55 member states located on the continent of Africa. The AU was announced in the Sirte Declaration in Sirte, Libya, on 9 September 1999. The African Union was established to promote the unity and solidarity of African countries, defend state sovereignty, eradicate colonialism, promote international cooperation, and coordinate and harmonize Member States' policies. IMF The International Monetary Fund is a major financial agency of the United Nations, and an international financial institution funded by 190 member countries that works to achieve sustainable economic growth and prosperity. ICC The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. SADC The Southern African Development Community (SADC) is an inter-governmental organization with a goal to further socio-economic cooperation and integration as well as political and security cooperation among 16 Southern African states. It comprises of 16 member states; Angola, Botswana, Comoros, Democratic Republic of Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, United Republic Tanzania, Zambia and Zimbabwe. Learning unit 7 – Lecture Notes Private International Law The rules of private international law sometimes referred to as ‘conflict of laws’, determine which legal system’s rules to apply, when a dispute arises between private individuals from differing jurisdictions. Private international law regulates the legal landscape between private individuals from different countries, it does not regulate international relationships on state level like public international law. An example would be a furniture manufacturer in South Africa decides to import bamboo from China in order to manufacture bamboo lounge furniture, the South African manufacturer and the Chinese supplier come to an agreement and conclude a contract for the supply of bamboo. Some time later there is a legal dispute between the two, should the South African law of contract or the Chinese law of contract apply? Another example would be Victor, a Nigerian, and Nandi, a South African, meet, fall in love and have a baby. Victor, sometime later, returns to Nigeria and demands that Nandi and the baby come live with him in his home country. He argues the parental rights afforded to him under Nigerian law entitle him to demand this. Nandi wants to stay with her family in South Africa and she argues South African law does not entitle the father to demand the mother and child cohabitate with him. Which country’s laws relating to parental rights should apply?