LCP4801 - International law

Diplomatic protection - Answer-A state has a right to protect its nationals abroad who have been injured by the actions of the foreign state. The state may take up the case of its subject by resorting to diplomatic action, or international judicial proceedings. The cornerstone of this right is that an injury to a national is considered to be an injury to the state (Panevyezys-Saldutiskis Railway Case). Therefore, under international law, the right of diplomatic protection vests in the state. The state is not under any duty to exercise its right. While the domestic laws of a state may impose such obligation, international law does not. .The United Nations may exercise diplomatic protection over its agents and it may institute an action on their behalf. - Answer-True - This was confirmed by the ICJ in Reparation for Injuries Suffered in the Service of the United Nations 1949 ICJ Rep. By finding that the UN could in fact do both, the ICJ recognised that it was a subject of international law enjoying international legal personality. .It was accepted by the court in S v Banda 1989 4 SA 519 (Bop) that recognition by other states is necessary before an entity may become a state. - Answer-False - In this case the court preferred the declaratory theory - ie only the four objective requirements in the Montevideo Convention must be met for an entity to be considered a state .Section 231(4) of Con - Answer-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. Tells us when a treaty that is binding on South Africa internationally becomes law in South Africa. The process necessary to transpose a treaty from the international plane to the national plane. .Section 231(1) - Answer-The negotiating and signing of all international agreements is the responsibility of the national executive. .Section 231(2) - Answer-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). .Section 231(3) - Answer-An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratifi cation 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. .Section 231(5) - Answer-The Republic is bound by international agreements which were binding on the Republic when the Constitution took eff ect. .self-executing treaty - Answer-[A treaty] which does not in the view of the American courts expressly or by its nature require legislation to make it operative within the municipal field, and that is to be determined by regard to the intention of the signatory parties and to the surrounding circumstances. .If a party therefore claims that a treaty is self-executing, the judicial officer will have to determine - Answer-(1) Whether the treaty has been concluded and binds SA through parliamentary approval. (2) Whether the treaty falls within one of the four exceptions in section 231(3) in which case it binds without parliamentary approval. (3) If it falls within one of these exceptions, then it cannot (presumably from the wording) be self-executing. (4) If it doesn't fall within one of the exceptions, he will then have to: (a) determine the intention of the signatories (b) examine the surrounding circumstances (5) From this he will have to examine whether the treaty contains any provision which requires legislation to make it operative municipally. (6) He will also have to examine the nature of the treaty to see whether treaties of that kind require legislation to make them operative municipally (7) As if this were not enough, he then has to determine whether the treaty conflicts with the Constitution