INTERNATIONAL LAW MAKING AS AN ATTRIBUTE OF STATE SOVEREINGTY

Dr S Ncube

26 February – 09 March 2024

 READ

• Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory
Opinion) ICJ Reports 1951.
• Cameroon v Nigeria ICJ report 2002.
• North Sea Continental Shelf Case (Netherlands, Denmark and Germany, ICJ Reports 1969)
• Armed Activities Case (DRC v Rwanda, ICJ reports 2006)
• Arrest warrant of 11 April 2000 (DRC v Belgium, ICJ Reports 2002).
• Somalia v Kenya
• The Arctic Sunrise Case, (Kingdom of the Netherlands v. Russian Federation), ITLOS No. 22

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UN GA REQUEST FOR AN ADVISORY OPINION
ON ISRAEL IN RE PALESTINE OCCUPATION
• In December 2022, the UN GA requested the International Court of Justice
(ICJ) to provide an advisory opinion on the following questions:
• What are the legal consequences arising from the ongoing violation by
Israel of the right of the Palestinian people to self-determination, from its
prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967, including measures aimed at altering the
demographic composition, character and status of the Holy City of
Jerusalem, and from its adoption of related discriminatory legislation and
measures?
• How do the policies and practices of Israel referred to in paragraph 18 (a)
above affect the legal status of the occupation, and what are the legal
consequences that arise for all States and the United Nations from this
status?”
• The Court held public hearings between 19 – 26 February 2022 and will
now prepare an opinion.
• What will the court rely on in formulating its opinion?

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INTRODUCTION
• What are the sources of International Law?
• ‘Sources’ refer to the document/ instrument/
source where a particular rule or principle of
international law can be found
• Difference from municipal or national law:
• No international legislature
• No system of stare decisis / precedents
system

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INTRODUCTION
• International law making is a function of a state’s
sovereignty.
• International law can therefore only come about as a
result of a state’s legal competency to participate at the
international level
• Inherent in statehood.
• In attempting to find legal solutions to disputes
between states or international organisations, reliance
is placed on sources of international law.

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SECTION 38(1) OF THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE (ICJ)

International Judicial decisions

custom, as General principles and teachings of the
International
evidence of a of law recognised most highly qualified
conventions;
general practice by civilised nations; publicists of the
accepted as law; various nations.

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What are general principles of
law?

• 1. standards that are common to most national legal standards

• General standards of international law derived from state practice
such as freedom of the high seas and diplomatic immunity
• Fundamental rules of international law such as the prohibition on
aggression
• Fundamental human rights norms applicable to interstate relations

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Rome Statute - art.21
• The Court shall apply:
• In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
• In the second place, where appropriate, applicable treaties and the principles and rules of
international law, including the established principles of the international law of armed conflict;
• Failing that, general principles of law derived by the Court from national laws of legal systems of
the world including, as appropriate, the national laws of States that would normally exercise
jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and
with international law and internationally recognized norms and standards.

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HIERARCHY
• PRIMARY SOURCES:
• Treaties;
• Customary international law; and
• General principles of law.
• SECONDARY SOURCES:
• Judicial Decisions – both international and
national; and
• Academic text.

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TREATIES
WHAT IS A TREATY?
• A treaty is a contract between states (or states and international organisations)
• Article 2(1)(a) Vienna Convention on the Law of Treaties:
• ‘an international agreement between states in a written form and governed by international
law, whether in a single instrument or in two or more related instruments and whatever its
particular designation.’
• Only written Treates are subject to the VCLT

• SYNONYMS
• International agreement’: S 231 SA Constitution;
• ‘Covenant’: International Covenant on Civil and Political Rights;
• ‘Charter’: African Charter on Human and Peoples’ Rights;
• ‘Statute’: Rome Statute of the International Criminal Court;
• ‘Convention’: Convention on the Prevention and Punishment of the Crime of Genocide;
• ‘Protocol’: Protocol Additional to the Geneva Conventions

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Categories
of treaties
• Contractual – legal relationship
between states
• Legislative:
• Codification of rules of
customary international law OR
• Creates NEW rules of law
• Constitutive:
• Multilateral treaty creating
international organisation

• Bilateral
• multilateral

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Basic concepts in Treaty
making
• Every state has capacity to conclude a treaty
• However, to be bound, a state must consent (VCLT
– Art.11)
• Means of expressing consent:
• Signature;
• Accession;
• Ratification;
• Acceptance or approval;
• Exchange of instruments; or
• Other agreed means (can be stated by the
treaty itself)

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RATIFICATION
• Subject to: ratification, acceptance or approval at later date.
• Meaning → entry into force.
• “Ratification”:
• “endorsement” of previous signature of treaty

• Purpose of ratification:
• Reconsider decision to be bound and
• Opportunity to make changes to municipal law.
• Dualist and monist systems

• State is NOT BOUND to treaty it has SIGNED but not RATIFIED,

however:
• Must REFRAIN from DEFEATING the OBJECT and PURPOSE of
the treaty
• until the state has made it clear that it intends to be BOUND

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Other rules of Treaty Law

Prohibition of
Compliance with invoking of national
treaty: Pacta sunt laws of state for
servanda failure to perform in
terms of treaty.
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AUTHORITY TO CONCLUDE
TREATIES (VCLT - art.7)

• Specific authorisation: full

powers
• Representation based on state
practice
• Official position:
• Heads of State or Government;
• Ministers of Foreign Affairs;
• Heads of Diplomatic Missions;
• Representatives of
international organisation/at
international conference.

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ENTRY INTO FORCE

• When?
• Consent to be bound established for all negotiating states;
OR (VCLT art.24(2).)
• Treaty determines date; OR
• Negotiating states determines date.

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ROME STATUTE

• For example: Article 126 Rome Statute of the International Criminal Court:
• This Statute shall enter into force on the first day of the month after the 60th
day following the date of the deposit of the 60th instrument of ratification,
acceptance, approval or accession with the Secretary-General of the United
Nations.
• For each State ratifying, accepting, approving or acceding to this Statute after
the deposit of the 60th instrument of ratification, acceptance, approval or
accession, the Statute shall enter into force on the first day of the month after
the 60th day following the deposit by such State of its instrument of ratification,
acceptance, approval or accession.

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RESERVATIONS TO TREATIES

• “Reservation”:
• Unilateral statement by state to exclude or modify legal effect of certain
provisions of a treaty in their application to that state.

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RESERVATIONS – cont…

• VCLT Exceptions (Art.19):

• Reservation is PROHIBITED;
• SPECIFIC RESERVATIONS; or
• Reservation is IMCOMPATIBLE with object and purpose of
treaty.

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RESERVATIONS TO HUMAN RIGHTS
TREATIES

• Reservations to the Convention on the Prevention and Punishment of the Crime

of Genocide (Advisory Opinion) ICJ (1951) 15.
• Object and purpose?
• Self study pp.82 – 88.

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INTERPRETATION OF TREATIES
• General Rule:
• Text;
• Context; and
• Object and purpose.
• Supplementary means:
• Preparatory work and
• Circumstances of conclusion.

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INVALIDITY OF
TREATIES
• Internal/national laws;
• Restrictions on authority;
• Error;
• Fraud;
• Corruption;
• Coercion: threat or use of force;
• Jus Cogens/ Peremptory Norms
• VCLT art.49 - 53

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TERMINATION
AND SUSPENSION
OF TREATY
• CIRCUMSTANCES:
• Material breach;
• Supervening impossibility of
performance;
• Fundamental change of
circumstances; and
• Emergence of new peremptory
norm of international law.

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MATERIAL BREACH

• When?
• violation of ESSENTIAL term to accomplishment of purpose
of treaty or
• Repudiation not sanctioned by VCLT.
• Innocent party?

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SUPERVENING IMPOSSIBILITY OF PERFORMANCE:

• When?
• Permanent disappearance or destruction of object essential for
the execution of the treaty.

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FUNDAMENTAL CHANGE IN
CIRCUMSTANCES

• General rule: may not invoke.

• EXCEPTIONS:
• Essential basis of consent to be bound
• + obligations radically transformed.
• May NOT invoke if:
• Treaty establishes a boundary
• Or terminating party breached treaty.

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EMERGENCE OF NEW PEREMPTORY NORM
• When?
• Treaty = void and terminated if in conflict with peremptory norm that came into
existence AFTER conclusion of treaty.

• VCLT art.53 refers to time of conclusion (not valid if it violates a peremtory

norm)

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TREATIES AND SOUTH AFRICAN
LAW

• SA APPROACH:
• Dualism: IL must be ADOPTED or TRANSFORMED into municipal
law before it will apply.
• OTHER:
• Monism: IL applies DIRECTLY without need to adopt or
transform IL.

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S231 of the SA Constitution

INTERNATIONAL AGREEMENTS
• ‘The negotiating and signing of all international agreements is the responsibility of the national executive.
• An international agreement binds the Republic only after it has been approved by resolution in both the National
Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
• An international agreement of a technical, administrative or executive nature, or an agreement which does not
require either ratification or accession, entered into by the national executive, binds the Republic without approval
by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the
Council within a reasonable time.
• Any international agreement becomes law in the Republic when it is enacted into law by national legislation;
but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament.
• The Republic is bound by international agreements which were binding on the Republic when this Constitution took
effect.’

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GLENISTER V PRESIDENT OF
THE RSA 2011 (3) SA 347 (CC)
• 92] An international agreement that has been ratified by resolution of
Parliament is binding on South Africa on the international plane. And
failure to observe the provisions of this agreement may result in South
Africa incurring responsibility towards other signatory states. An
international agreement that has been ratified by Parliament under
section 231(2), however, does not become part of our law until and
unless it is incorporated into our law by national legislation. An
international agreement that has not been incorporated in our law
cannot be a source of rights and obligations.’

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GLENISTER cont…

• Treaty becomes part of municipal law by:

• Act of Parliament;
• Schedule to a Statute;
• Proclamation/ notice in Government Gazette.

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S231(1) vs S231(2)

• S 231(1): the executive NEGOTIATES and SIGNS treaties.

• S 231(2): both NA and NCP to APPROVE treaty → resolution.

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S231(2) vs S 231(4)

• S 231(2) vs S 231(4):
• S 231(2): treaty will BIND SA in its EXTERNAL RELATIONS.
• S 231(4): treaty will be ENFORCEABLE and BECOME LAW IN
SA if ENACTED as LEGISLATION.

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