NYARARAI GOMBA

68184743

LCP 4801

ASSESMENT 1
QUESTION 1

1) The principle of Pacta Sunt Servanda

2) The doctrine of incorporation

3) The principle of Treaty Monism

4) The doctrine of res judicata

5) The concept of International Organizations or Supranational entities

QUESTION 2

Article 38(1) of the Statute of the International Court of Justice (ICJ) defines the sources
of law that may be applied by the Court, and these include, international conventions,
international custom, and general principles of law recognized by civilized nations.
Other sources include judicial decisions and teachings of the most highly qualified
publicists as subsidiary means, and arbitration as a form of international dispute
resolution.

The assertion that there is no hierarchy among these sources, as posed in the question,
indicates a view that these sources are equally valid and applicable. Each source of
international law plays a unique role in shaping and defining the landscape of
international legal jurisprudence, thus any hierarchy would negate this fact.

One could argue there is some implicit prioritization among the sources in the language
of Article 38(1) itself, which may not necessarily denote a strict rank but suggests an
order of application. It states: “The Court, has the function of resolving diputes brought
under international law, shall apply: a. international conventions, whether general or
particular, b. international custom, c. the general principles of law recognized by
civilized nations”.It is important to note that not all sources listed in Article 38(1) are
equivalent in terms of evidentiary needs. For example, proving the existence of
customary international law often requires demonstrating not only a consistent practice,
but also a belief that
this practice is legally binding (opinio juris), making it more difficult to establish treaty
obligations.

Although Article 38(1) itself does not establish a hierarchy, in practice, the applicability
of sources can effectively create a kind of hierarchy that depends on the evidentiary
requirements, the nature of the dispute, the specificity of the sources, and their
persuasive power. labelling efforts to differentiate between these sources as exercises
in futility may be misleading; such efforts effectively recognize the complexities and
realities of the application of different sources of international law in various contexts
and situations. However, categorizing them into a fixed or universally applicable
hierarchy indeed could be futile given the varying dynamics in different situations.

In conclusion, while there may be some debates around interpretation, the balance of
academic and interpretational opinion appears to agree that the sources of law
enumerated in Article 38(1) are not ranked. The sources are seen as complementary
and collectively exhaustive, each playing distinct, important roles in the process of legal
determination and interpretation on a case-to-case basis. So, from this standpoint, the
attempt to assert a definitive ranking or hierarchy among these sources may indeed be
seen as ‘nothing but an exercise in futility’.

QUESTION 3

The general principles of law recognized by civilized nations constitute the third source
of public international law. Article 38(1)(c) of the International Court of Justice
(hereinafter ICJ) Statute allows the court to resolve disputes based on general
principles of law. The general principles referred to in this question, according to this
clause, are those recognised by the legal systems of the world's civilised nations. The
term 'civilised nations' must be interpreted in the context of thought at the time
whenever the community of states was still regarded as important as consisting of
civilised and less civilised nations, a difference that was not unconnected
The discussion of the expression "the general principles of law recognized by civilized
nations means general principles of international law", appears to be simplification of
the concept presented in Article 38(1)(c).

Notably, the 'general principles of law recognized by civilized nations' essentially refer to
legal principles that are common and non-differential across national legal systems.
Therefore, they are not only compatible with the ‘general principles of international law.’
While 'general principles of law recognised by civilised nations' are part of International
law, they are not identical to it as they are inclusive of law norms, rules and principles
finding their origin in the domestic law of states. The 'general principles of law' serve as
a means to bridge gaps in International law when no treaty or customary rule becomes
applicable. These can include principles of justice, equity, good faith, etc that are
common to most domestic legal systems.

The application of general principles of law to the adjudication of disputes between

states has been included in the Statute to deal with matters not governed by treaties or
customary international law. In such an unlikely event, it 'was judged undesirable, and
possibly improper in principle, that the Court should be forced to proclaim what is known
as non liquet - a judgement that a particular claim could neither be maintained nor
dismissed, for lack of any existing applicable rule of law'.

While the ICJ has used general principles of law such as unjust enrichment, res
judicata, corporate limited liability, estoppel, and nemo judex in re sua on occasion, no
dispute before the court has been decided solely and expressly on the basis of some or
other general principle of law.

However, these principles should be used sparingly and with caution as relying on
general principles could result in imposition of one country's domestic laws upon
another, which wouldn't be fair in an international context. Therefore, 'general principles
of law recognised by civilised nations' are indeed part of International law, but calling
them identical would be imprecise. The term 'civilised nations' must to be understood in
relation to thinking on the time whenever the community of states was still viewed as a
group made up of civilised and less civilised nations, a distinction that was undoubtedly
related to the divisions that existed between colonial powers and their colonial
possessions.

QUESTION 4

The above statement, while a popular belief, does not always hold true under
international law. On the surface, it appears to uphold the principles of constitutionalism
and the rule of law within a state's domestic jurisdiction.1 However, it conflicts with the
principles of public international law that regulate the relations between sovereign
states.

Article 46 of the Vienna Convention on the Law of Treaties (VCLT) stipulates that a
state cannot invoke the fact that its consent to be bound by an international treaty was
expressed in violation of a provision of its internal law which prohibits such an act,
considering that the violation as such is manifest and concerned a rule of its internal law
of fundamental importance.2 A violation is manifest only if it would be “objectively
evident to any State conducting itself in the matter in accordance with normal practice
and in good faith”. This is known as the rule of estoppel in international law.

In other words, a state cannot escape its duties under an international treaty by invoking
its domestic laws. The reason is that international law and domestic law exist on two
different planes, each with its own rules and obligations, and a conflict between the two
does not necessarily invalidate an international agreement. This is reinforced by Article
27 of the VCLT which states that a party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty.

However, there have been cases where this principle is disregarded due to its potential
for abuse. The international law principle pacta sunt servanda (agreements must be
kept) forces states to honour their treaty obligations, but this ought to be balanced
against the danger of authoritarian rulers bypassing their own constitutional limitations

1
Vienna Convention on the Law of Treaties, 1969
2
Vienna Convention on the Law of Treaties, 1969
and committing their nation to international agreements without the expressed consent
from other branches of the government.

The Nicaragua vs United States case before the International Court of Justice (ICJ)
provides an example. In this case, the United States argued that its provision of arms to
Contras in Nicaragua was authorized by the executive powers of the U.S. President.
However, the ICJ found this action inconsistent with international law. While the
abovementioned principles form the general rule, exceptions can exist. In some
jurisdictions, such as India, domestic laws can override international treaties.

In the case of Jolly George Verghese vs Bank of Cochin, the Supreme Court of India
held that while the nation must prioritize its international obligations, when there is
inconsistency between domestic and international law, domestic law will prevail. In
conclusion, the statement reflects a desire to ensure respect for domestic
constitutionally established decision-making processes. While it is backed by some
case law, it generally does not align with the principles of international law as codified in
the VCLT.
 BIBLIOGRAPHY

1. International Law Study Guide (LCP4801), Department of Public, Constitution

and International Law, University of South Africa, Pretoria

2. International Law Textbook, Oxford, Hennie Strydom

3. Vienna Convention on the Law of Treaties, 1969;

https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

4. M. Dixon, “Textbook on International Law,” 6th Ed. (Oxford: Oxford Univ.

Press, 2007)

5. Jolly George Verghese and Anr vs The Bank of Cochin, Supreme Court of

India, 1980; https://indiankanoon.org/doc/1197778/

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NAME: NYARARAI GOMBA
SIGNATURE:
STUDENT NUMBER: 68184743
MODULE CODE: LCP 4801