Exam (elaborations) INTERNATIONAL LAW

INTERNATIONAL LAW EXAM WITH 100% GUARANTEED ANSWERS What is the declaratory theory of statehood? ANSWER A state exists when it meets the criteria of statehood (territory, population, government, sovereignty), and recognition by other states merely declares this fact. According to the declaratory theory, when does a state exist? ANSWER When it fulfills the Montevideo Convention criteria (permanent population, defined territory, government, and capacity to enter relations with other states). Declaratory theory - ANSWER state exists when it meets the criteria of statehood & recognition of other states simply declares this fact Constitutive theory - ANSWER state is constituted by the legal act of recognition by existing states. through recognition only and exclusively. very little role for int law What is the territorial principle of jurisdiction? ANSWER A state has jurisdiction over all conduct occurring within its territory. When can a state exercise jurisdiction based on nationality? ANSWER When the perpetrator is its national, even if the crime occurred abroad. Explain the passive personality principle. ANSWER Jurisdiction is based on the victim being a national of the state. What is the protective principle? ANSWER A state may prosecute conduct abroad that threatens its national security or sovereignty. When does the effects principle apply? ANSWER When conduct outside a state’s territory has substantial effects within it (e.g., economic crimes). What is universal jurisdiction? ANSWER Any state may prosecute severe international crimes (e.g., genocide, piracy) regardless of location or nationality. Article 38(1)(a) ICJ Statute - ANSWER treaties are of paramount important to development of int law. organisations are created, disputes settled, trade regulated and inter state relations are all fostered by treaties. bilateral or multilateral Work of Elias and Smith - ANSWER - pre colonial African Kingdoms (Benin, Kingi, Oyo, Mossi) engaged in what is known today as Int law - these kingdoms dealt with Euro powers on equal footing and negotiated trade and diplomatic matters Jurisdiction - ANSWER - principle of territory protectio (state on whose territory the offending conduct took place has jurisdiction) - principle of nationality (court will exercise jurisdiction where the perpetrator is its national, even if offence took place abroad) - passive personality (victim is national of that state) - protective principle (protection of an interest of that state) - effects principle (conduct outside territory that has substantial effect within its territory) - universality (nature of act is an affront to all humanity) State liability under Int law - ANSWER - direct (states act through their officials and agents to violate terriotrial integrity of other states) - indirect (state infringes the rights of the citizen of another state or does nothing to prevent an attack against the property or persons of another state) - Iran Hostage case - must be sufficient link between actor and state Prohibition of force under Int law - ANSWER - there is a prohibition of force under Int law - 2 exceptions 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). Requirements for nationalisation to be valid in terms of public international law: - ANSWER - Must not be discriminatory - Must be for public purposes - Compensation must be paid State Liability: UN Resolution 1803: Permanent Sovereignty over National Resources - ANSWER Make provision for compensation: appropriate compensation in accordance with the rules in force in the state taking such measures and in accordance with rules of international law. IN the case of a dispute the municipal law jurisdiction must be exhausted but on agreements by the state and other parties concerned. This reflects the first world or Western standard. State Liability: UN Resolution 3281: Charter for Economic Rights and Duties of States - ANSWER Makes provision for compensation: Provides for nationalisation, expropriation or transfer of ownership of foreign property against the payment of appropriate compensation by the state taking such measures, taking into account its law and regulations and all relevant circumstances. In the case of controversy, the dispute must be settled under the municipal law of the nationalising state and by its tribunals; unless all the states agree that other peaceful means may be sought.This reflects the third world standard. State Liability: Prohibited Counter Measures - ANSWER - Use threat or force which is prohibited by the UN - Use extreme economic or political coercion to endanger the territorial integrity and political independence of the contravening state. - Any conduct which infringes the inviolability of diplomatic agents, premises and documents. - Any conduct which infringes basic human rights - Any conduct which is in contravention of a peremptory -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 (8) He also has to examine whether it conflicts with an Act of parliament - and in this regard he will have also to consider section 233 Section 231(5) - ANSWER This is a typical succession provision which you will find in most constitutions. It is important to note that the legal entity bound by the treaty is the state, and not the government (which is likely to change from time to time). Article 51 of UN charter - ANSWER Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security The following characteristics are important: • The act taken in exercising the right to self-defence is valid only until the Security Council acts. • The purpose of the use of force must be clear: to defend oneself. • The force exercised in self-defence must be proportionate to the posed threat. Role of UN in settlement of disputes - ANSWER • The UN, through the Security Council, has the primary responsibility of maintaining global peace and security. • Since both Ajubaria and Kalakuta are members of the UN, they are subject to its jurisdiction, and the UN can intervene to stop the conflict. • The UN can delegate the responsibility of intervention to a collective/regional force. • When exercising this responsibility, the Security Council must act within the objectives and principles of the UN. • The Security Council may decide on measures such as sanctions, diplomatic negotiations and severance of diplomatic relations in the exercise of its powers Prohibition of the use of force under international law - ANSWER • There is a prohibition of the use of force under international law. • There are 2 exceptions to this rule: (i) where there is a threat to international peace and security, the Security Council may authorise the use of collective force or a regional force (e.g. the case of Libya) to use force (ii) where a state acts in self-defence. Ajubaria must be able to prove these two points, in particular self-defence. • Students must also show whether anticipatory or preventive self-defence is allowed State liability under Int law - ANSWER • There are 2 types of state liability: Direct (where states act through their officials and agents to violate the territorial integrity of other states) and indirect (where state infringes the rights of the citizen of another state or does nothing to prevent an attack against the property or persons of another state) liabilities. • In principle, there is no difference in the result of both direct or indirect liability. • Students should make reference to the Iran Hostage case, to show that actions of persons can be attributed/ascribed to a particular state, in the event that such state makes no positive effort to prevent harmful actions. • For attribution to occur, a sufficient link between the actor and the state must be proved. • Ajubaria can prove that the actions of the armed rebels is supported by Kalakuta, while Kalakuta can also prove that Ajubaria supports rebel movement within its territory. • Students have to provide sufficient explanation to determine the liability of both states, and how this provides justification for use of force. Measures that should be put into place to prevent outright conflict between states - ANSWER • UN should step in to prevent the escalation of this conflict. • One way of addressing this is the peaceful settlement of disputes under article 2(3) of the UN Charter • Peaceful settlement of disputes include the use of negotiation, mediation, conciliation, inquiry and judicial settlement under the ICJ. • Students should be able to identify any of these measures, and show how these could be used to prevent a potential war between Ajubaria and Kalakuta.