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This chapter discusses the emergence and consequences of the notion of the influential authority of international law. It argues that much of our thinking on the relationship between international and domestic legal orders is erroneously based on the bindingness of international law. Whereas that standard account may leave little room for breaking out of an essentially dualistic paradigm, a more substance-based conception of international law allows for a richer account of the relevance of international norms in domestic settings and indeed makes formal separations between legal orders largely irrelevant.

South Africa's track-record of receiving international law into the domestic legal order since the introduction of the new constitutional order in 1994 is mixed. On one hand, the Constitution of 1996 is very receptive to international law, notably as a guideline for interpretation. Courts are also keen to use international human rights instruments as a guideline for interpreting the Constitution, even though their methodology in this regard is open to criticism. On the other hand, the courts are much more reluctant to resort to international law as an instrument of interpretation in areas outside human rights law. Parliament's track-record in implementing non-self-executing and non-technical treaties is inconsistent.

This chapter examines the features of restraining orders (ROs). The first section analyses ROs as part of preventive law. Quarantine orders and domestic restraining orders are discussed as examples of ROs. The second section explores the impact of ROs on personal liberty broadly conceived. The third section considers whether and how ROs can be compatible with human rights to fundamental freedoms. The fourth section addresses the question of what sorts of procedural protections ROs should have. It argues that the grounds for due process protections in criminal law also provide reasons for substantial — but not identical — procedural protections for the initiation and review of ROs. The old idea that the procedural requirements for a case depend on whether it is ‘civil’ or ‘criminal’ should be abandoned. The final section offers a brief discussion of the efficacy of ROs.

Under public international law, two approaches could be taken to the question of jurisdiction. Either one allows States to exercise jurisdiction as they see fit, unless there is a prohibitive rule to the contrary, or one prohibits States from exercising jurisdiction as they see fit, unless there is a permissive rule to the contrary. The first approach was taken by the PCIJ in the 1927 Lotus case. The second has been taken by most States and the majority of the doctrine. Under this approach, States are not authorized to exercise their jurisdiction, unless they could rely on such permissive principles as the territoriality, personality, protective, and universality principles. It is unclear which doctrine has the upper hand.