PUBLIC

INTERNATIONAL LAW
LINT 4813
LECTURE 1
WELCOME
• The world has become a global village and increasingly members of
the legal profession work in the field of public international law.
• That work often involves international criminal and humanitarian law.
Welcome to LINT4813.
• We hope that this module will further hone your substantive
knowledge and skills and contribute towards your ability to become
an informed global citizen.
• The Department of Public Law presents the module and your lecturer
in 2024, is Prof CF Swanepoel-currently retired and a research fellow
in the said Department.
WELCOME
• The movement towards a decolonised version of international law
• That fully recognises and applies the principle of equality between states
but also, recognises the rights of an individual to operate and receive
protection from this branch of the law, receives attention in the module.
• For present purposes, a working definition might characterise public
international law as the law governing international and foreign
relations, particularly between states.
• I shall demonstrate though, that because of historic world events, the
individual increasingly receives (and is argued, ought to), receive the
protection of public international law.
COURSE INFORMATION AND
ADMINISTRATIVE MODULE
ARRANGEMENTS
• 1. See study guide on BB for fuller information
• 2. Try to consult announcements on BB at least once a week
• 3. Student consultations: twice weekly after lectures
• 4. Further help [email protected]
• 5. Assessment is continuous-no examination
• 6. Four assignments and one test. See further detail on BB; so
regularly check announcements on BB.
• 7. NB: Adapted study guide: please see lecture slides and recordings
for additional learning units.
MODULE ORIENTATION AND SOME
PRINCIPLES
• The public and press often include references to international relations and justice
as part of public international law. Accurate or not, you must take note of
something called “realpolitik”.
• Realpolitik describes the pursuit of vital state interests AND it influences
state behavior.
• (Realist theory OF Inter’Law) Based on the assumption that states engage in
certain behaviour in order to serve that state’s best interests.
• Simply put, states’ interest determine how states interact on the global stage.
• Such interest may be influenced by political, economic, philosophical, religious and
historical considerations. They all determine states’ approaches to international
law and justice. The public opinion on the current Israeli/ Palestinian issue
illustrates this.
MODULE ORIENTATION
• UNIVERSAL NORMS AND VALUES.
• There are some scholars who posits that public international law is, or
ought to be found on a set of universal norms and values and that
international law ought to reflect that.
• There are only partly evidence that indeed such a set of universal
norms and values exist. Different views currently exist in the
international arena. For example the TWAIL (Third World Approaches
to International Law) movement that we will look at in this module.
MODULE ORIENTATION-VALUES,
NORMS, (PHILOSOPHY)-SIGNS OF
UNIVERSITALITY
• Jus cogens norms and values: described as peremptory norms of general
international law. (See Dugard in regard to its development) These norms are accepted
and recognized by the international community of States as a whole.
• Second, for a norm to be considered a jus cogens norm, its mandatory effect must be
universally accepted by the international community. In practice, this limits jus cogens
norms to prohibitions against egregious conduct, such as crimes against humanity,
genocide, slavery, human trafficking.
• They are norms from which no derogation is permitted and which can only be modified by
a subsequent norm of general international law having the same character.
• Make sure that we understand what NORMS and VALUES are.
• “The difference between a value and a norm is that a value is general, referring to an overall ideal,
whereas a norm is concrete, specifying certain things that have to be done (or omitted)”
• HOW ARE NORMS AND VALUES IMPLEMENTED IN A SOCIETY, INCLUDING THE INTERNATIONAL
COMMUNITY?
SIGNS OF UNIVERSITALITY
• Rights and obligations “erga omnes”: In legal terminology, “erga
omnes” are rights and obligations are owed toward all. Examples here
are the right not to be tortured or treated inhumanely.
• Perhaps, arguably, for example, the abolition of the death sentence in
many national jurisdictions find its roots (consciously or
unconsciously) in this norm.
SIGNS OF UNIVERSITALITY
• Opinion juris: Opinio juris is a shortened form of the Latin phrase
“opinio juris sive necessitatis,” which means "an opinion of law or
necessity.". In context of public international law, this concept often
refers to the “majority of opinion held by international actors/states”.
• Universal jurisdiction: there is a principle in international law that any
state may assume jurisdiction (in their courts) to prosecute individuals
responsible for committing the most heinous international crimes
“that shock the consciousness of the whole of humanity”.
• See Swanepoel 2007 Journal for Juridical Science 32(1): 118-143
Universal jurisdiction as procedural tool to institute prosecutions for international core crimes
UNIVERSAL JURISDICTION
• Individuals against other individuals, or groups of individuals, usually
commit international crimes such as for example genocide, aggression
and even apartheid.
• The notion of universal jurisdiction thus developed so that individuals,
“most responsible” for these crimes face justice and are not immune
to individual prosecution in any jurisdiction.
• It further means, amongst other things, than even in the absence of
any jurisdictional tie to the prosecuting country, such prosecution is
lawful
UNIVERSAL JURISDICTION
• STATE IMMUNITY:
• NB: Furthermore, that in prosecution,( in terms of universal
jurisdiction)- a defence of state immunity (“acts were committed as
part of a state’s conduct”) is immaterial.
• The International Criminal Court is, for example, found on the principle
that the “primary responsibility” of states to prosecute individuals, is
that of its member states, but if such a member state is unwilling or
unable to prosecute, that member state has a responsibility to hand
the alleged perpetrator to the ICC in order to face justice.
• Then COMPLEMENTARITY of jurisdiction arises
STATE SOVEREIGNTY

State Sovereignty: current international law, through for example the UN

Charter, is based on the absolute sovereignty and equality of states.
In its essence, this principle holds that “a sovereign state is a state that has
the highest authority over a territory. International law defines sovereign
states as having a permanent population, defined territory, a government
not under another, and the capacity to interact with other sovereign
states.”
Even a casual observer will realise that the principle of (absolute) state
sovereignty, is a complex notion, and that it does not always reflect
international practice.
STATE SOVEREIGNTY
• The assertion or recognition of absolute state sovereignty (to do what
it wants within its territory) has held both positive and negative
consequences.
• Apartheid South Africa for example, held that it would not tolerate
any interference in its internal affairs and will not be prescribed by no
one.
• A decolonised Africa also, has asserted that no one can prescribe to it
(despite its membership of the International Criminal Court or UN) to
arrest a perpetrator of acts of genocide when that person was on its
territory.
NATURE AND HISTORY PUBLIC
INTERNATIONAL LAW-FROM DUGARD
• 1. “A body of rules and principles”
• 2. Binding on states “in their relations with one another states”
• 3. Treaties amongst states further contributes towards this “body of
rules and principles”.
• 4. They can be bilateral, between two nations, or multilateral, among
several nations. There are binding-legal consequences for breaking
them.
• 5. A treaty can be called a Convention, a Protocol, a Pact, an Accord, a
Charter etc.; it is the content of the agreement, not its name, which
makes it a treaty.
Nature and history of public International
• Important developments in 20th century:
• 1. Protection or “the reach” of international law EXTENDED to individuals
also-human rights. Particularly after WW11
• 2. Establishment of the League of Nations and then the United Nations
• 3. De- colonization of states-reconceptualization of nature of
International Law known as the Third World Alternatives to International
Law (TWAIL)-movement.
• 4. Establishment of International Criminal Court, UN-created temporary
criminal courts, Regional courts of Justice and including criminal justice.
Nature and history of public international law
• NOTE: despite individual protection by international law-individuals
strictu sensu cannot be described a true subjects of public
international law.
• This is despite the possibility of individuals’ prosecution for
international crimes.
• Multinational corporations too, not qualified as “international
subjects” despite the existence of international commercial law. This
area is "the study of the rules applying to operators and operations in
international trade"
Nature and history of public international
law
• Other, (important role-players) in public international law are e.g.
NGO’s such as the International Committee of the Red Cross; Amnesty
International, National Liberation Movements, International Bar
Association, Lawyers for Human Rights, etc.
• Current contentious issues:
• While Israel is not a member of the International Criminal Court (ICC),
that court still has jurisdiction over the transgressions it commits in
the Palestinian territories and Israeli individuals can be prosecuted
for those crimes.
NATURE/HISTORY/ CONTENTIOUS
ISSUES
• This, according to Gerhard Kemp, professor of international criminal
law because Palestine is a signatory to the Rome statute, which
governs the ICC, the court has jurisdiction over war crimes in
Palestinian territories. Legal Brief Friday 17/11/23.
• Is signatory status enough to “trigger” the ICC jurisdiction?
• Must the request come from Palestine or can any member on behalf
of the “offended” “state” do so on behalf of the world community?
• What about the Russian invasion of Ukraine-was the invasion lawful?