ABONGILE TSHETE STUDENT NO.

43355749 LCP4801 ASSIGNMENT 2

INTERNATIONAL LAW
LCP4801 SEMESTER 2, 2022
ASSIGNMENT 2
STUDENT NO.43355749

(a) International Law and Domestic Law

International law is the body of legal rules which governs the relationships between
states and international organisations. International law serves as the fundamental
structure within which states and other international organisations conduct their
international relations.

Domestic law, also referred to as Municipal or National Law comprises the law
governing the behaviour and conduct of individuals and organisations within a country.

Sometimes courts / tribunals get seized with cases concerning both international and
municipal law, and have to decide the relationship between the two systems. Two
questions arise, whether preference should be given to international law rather than
municipal law or whether the international and municipal regimes should be regarded
as two separate systems existing independently of each other or as a single legal order
1. The starting point to answer the above questions is to have a look at differences and
similarities between the two.

(a) Differences between international law and national law

International Law National Law

Has a judiciary but: Fully developed judiciary
(i) There is no precedent system (i) precedent system applies
(ii) The state is a judge in its own case (ii) nemo iudex in sua causa
There is no executive to enforce There is a complete executive machinery
judgments – sanctions are poorly in order to enforce judgments
developed
There is no legislator in international law Complete legislative process

1
Bennett Introduction to International Law (2013) 31.
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The subjects of international law are The subjects of national law are
generally states or international individuals or legal persons
organisations

Discussions:

As stated above, National or Domestic law operates within the territory of one state
and governs the relationship between its subjects as well as the relationship between
subjects and the state. Domestic law is created, enacted and adjudicated by the three
main organs of the state, the legislature: Parliament, the executive: Cabinet, and the
judiciary: Courts. The legislature enacts the law while the judiciary ensures compliance
by imposing sanctions such as punishment for non-compliance.

In contrast, International law is not created by any particular body. It is made of

Conventions: (Convention for the Regulation of Whaling 1946), treaties, customs,
peremptory norms and other formal agreements between the states. Rules that govern
the relationship between the states or organisations are created by consent. States
are bound by them because they consented or agreed to be so bound. There is no
central legislator or executive authority. A state can choose to ratify or refrain from
ratifying and accepting certain rules in the form of treaties or conventions. The General
Assembly of the United Nations has the powers to adopt recommendations, but these
recommendations do not have binding force like domestic legislation. No state can be
forced to enter into a treaty.

Also the following differences Domestic Courts and the International Court (ICJ)
should be noted:

(i) Only states may appear in contentious proceedings before the ICJ, individuals have
no locu standi, further, the jurisdiction of the ICJ is based on the consent of states to
be party to the proceedings.

(ii) The rule of nemo iudex in sua causa does not apply to the ICJ and there is no
precedent system.

(iii) Domestic courts exercise jurisdiction with the territory of a given state, over its
subjects, who have no say as to who will hear their matter.
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The following are similarities between international law and national law:

International law Domestic law

Comprises accepted norms prescribing Comprises accepted norms prescribing
state behaviour behaviour
Uses writings of jurists rather than Writings of jurists and precedent are
morality freely used
Can consciously be altered by treaty Can consciously be altered by
statute/legislation

(b) Diplomatic Privileges and Immunity

Diplomatic immunity exempts diplomats and the staff of diplomatic missions from the
jurisdiction of the receiving state`s courts. This does not mean they are free to simple
ignore the laws of the receiving state 2. In Liebowitz v Schwartz and Others the court
recognised that it is a principle of public international law that the courts of a country
will not, by their process, make foreign state a party to legal proceedings against its
will, and that such immunity has been admitted in all civilised countries.

The Diplomatic Immunities and Privileges Act provides that:

- A diplomat may not be arrested or detained

- A diplomat is absolutely immune from criminal jurisdiction
- A diplomat is immune from civil jurisdiction unless the action involves a real
action for immovable property held in personal capacity; matters of
succession in personal capacity; professional or commercial activities outside
of official functions.
- A diplomat is not obliged to give evidence as a witness.
- This immunity extends to the diplomat`s family.

Having regard to the above, the Diplomats, their spouses and families, foreign heads
of state and senior state officials are immune from domestic courts of foreign states.
A diplomat may not be arrested even for an act endangering the state. The person
should rather ne declared a persona non grata and expelled from the country.

2
Article 41(1) Vienna Convention on Consular Relations (1963)
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However, diplomatic immunity may be lost by waiver 3 and immunity for private acts
undertaken whilst the individual was working at the post, ceases upon expiry of the
time stipulated for the individual to settle his or her affairs upon completion of duties.4

Bibliography

1. Bennet TW & J Strung Introduction to International Law (2013).

2.https://www.ipl.org/essay/The-Differences-Betwee-International-Law-And-
Domestic-PK3HBSHEAJPR

3
Article 32.
4
Article 39 (2).