LCP4801 - International law Exam Need to Study
Questions) with Correct Verified Answers
Measures that should be put into place to prevent outright conflict between states - ✔✔•
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.
Immunity of foreign heads of states generally - ✔✔• Aim of immunity was to allow heads of
states (HOS) to conduct international relations smoothly.
• Provides for the inviolability of the person and premises of a foreign state's representatives.
• Also provides for immunities from the exercise of jurisdiction over those representatives.
• Premised on sovereign equality (principle of state sovereignty).
• Two forms of immunity: personal and functional.
• Provided for by both customary law and Vienna Convention on the Law of Treaties.
• Arrest Warrant Case (ICJ) - certain holders of high ranking office in a state, such as the HOS,
head of government, and minister of foreign affairs enjoy personal immunity.
• Personal immunity is absolute, covers both private and public acts committed by officials.
• Functional immunity relates to conduct carried out on behalf of a states. It is more commonly
used in civil cases.
• Functional immunity, unlike personal immunity, does not attach to all conduct performed by
state officials.
• In SA, this type of immunity is governed by the Foreign States Immunities Act 87 of 1981.
,Immunity in relation to murder, assault and similar offences? - ✔✔• Section 2 of the FIS
provides that a foreign state shall be immune from the jurisdiction of the courts of the
Republic.
• Under the Act, a number of exceptions to immunity exist, and these relate to civil claims,
amongst others, and also provide for the waiver of immunity by the state concerned.
• Section 6(a) provides for immunity of the foreign head of state from the jurisdiction of SA
courts, except in the case of a death or injury of any person.
• Immunity ratione materiae (functional immunity) does not apply to international crimes,
whether prosecuted by international or domestic courts.
• Although the Arrest Warrant case seems to suggest that at the domestic level, a domestic
court would still be bound by the foreign HOS's immunity, regardless of the crime committed,
the situation in SA differs from that notion.
• The FIS was enacted with full knowledge of the prevailing international customary law, and it
was deliberately crafted to take away that immunity.
Strydom (p264) argues that under customary law, HOS and certain officials enjoy absolute
personal immunity before domestic courts of other states. This position cannot be reconciled
with section 6(a) of FIS as indicated above.
Immunity of wives (spouses) of foreign heads of states? - ✔✔Spouses enjoy derivative
immunity
• In other words, their immunity derives from the husband/wife who is a foreign head of state.
• They cannot enjoy any more immunity than their spouses do.
• To the extent that the foreign HOS does not enjoy immunity for murder and related cases,
their spouses also do not have such immunity.
Formation of customary international law - ✔✔- court will apply international custom as
evidence of a general practice accepted as law
- 2 requirements
1) general practice (usus)
2) accepted as law (opinio juris)
, Major difference between custom and treaties? - ✔✔Custom binds all states whereas
treaties only bind those states who are party to the treaty
Usus - ✔✔- there must be a general practice among states for custom to develop
- defined in Asylum case as 'constant and uniform usage'
- elements that must be considered when deciding whether or not a general practice has
developed > uniformity, repetition, time, number of states, actions speak louder than words
opinio juris - ✔✔- psychological or subjective element
- North Sea Continental Shelf case
- state must comply with usage/practice because it feels legally obliged to do so
- it must feel that if it does not follow the usage, it will be committing an international 'wrong' -
breaking int law
Self executing treaty according to Shearer - ✔✔- treaty 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
Peaceful settlement of disputes - ✔✔- negotiation (engage in discussions)
- mediation (state assisted through a 3rd party)
- conciliation (commission set up, outcome binding)
- Inquiry (investigate facts to find solution)
- arbitration (binding award on basis of law)
- judicial settlement by ICJ (contentious or advisory opinions)
Diplomatic protection - ✔✔- state has right to protect its nationals abroad who have been
injured by the actions of the foreign state
Questions) with Correct Verified Answers
Measures that should be put into place to prevent outright conflict between states - ✔✔•
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.
Immunity of foreign heads of states generally - ✔✔• Aim of immunity was to allow heads of
states (HOS) to conduct international relations smoothly.
• Provides for the inviolability of the person and premises of a foreign state's representatives.
• Also provides for immunities from the exercise of jurisdiction over those representatives.
• Premised on sovereign equality (principle of state sovereignty).
• Two forms of immunity: personal and functional.
• Provided for by both customary law and Vienna Convention on the Law of Treaties.
• Arrest Warrant Case (ICJ) - certain holders of high ranking office in a state, such as the HOS,
head of government, and minister of foreign affairs enjoy personal immunity.
• Personal immunity is absolute, covers both private and public acts committed by officials.
• Functional immunity relates to conduct carried out on behalf of a states. It is more commonly
used in civil cases.
• Functional immunity, unlike personal immunity, does not attach to all conduct performed by
state officials.
• In SA, this type of immunity is governed by the Foreign States Immunities Act 87 of 1981.
,Immunity in relation to murder, assault and similar offences? - ✔✔• Section 2 of the FIS
provides that a foreign state shall be immune from the jurisdiction of the courts of the
Republic.
• Under the Act, a number of exceptions to immunity exist, and these relate to civil claims,
amongst others, and also provide for the waiver of immunity by the state concerned.
• Section 6(a) provides for immunity of the foreign head of state from the jurisdiction of SA
courts, except in the case of a death or injury of any person.
• Immunity ratione materiae (functional immunity) does not apply to international crimes,
whether prosecuted by international or domestic courts.
• Although the Arrest Warrant case seems to suggest that at the domestic level, a domestic
court would still be bound by the foreign HOS's immunity, regardless of the crime committed,
the situation in SA differs from that notion.
• The FIS was enacted with full knowledge of the prevailing international customary law, and it
was deliberately crafted to take away that immunity.
Strydom (p264) argues that under customary law, HOS and certain officials enjoy absolute
personal immunity before domestic courts of other states. This position cannot be reconciled
with section 6(a) of FIS as indicated above.
Immunity of wives (spouses) of foreign heads of states? - ✔✔Spouses enjoy derivative
immunity
• In other words, their immunity derives from the husband/wife who is a foreign head of state.
• They cannot enjoy any more immunity than their spouses do.
• To the extent that the foreign HOS does not enjoy immunity for murder and related cases,
their spouses also do not have such immunity.
Formation of customary international law - ✔✔- court will apply international custom as
evidence of a general practice accepted as law
- 2 requirements
1) general practice (usus)
2) accepted as law (opinio juris)
, Major difference between custom and treaties? - ✔✔Custom binds all states whereas
treaties only bind those states who are party to the treaty
Usus - ✔✔- there must be a general practice among states for custom to develop
- defined in Asylum case as 'constant and uniform usage'
- elements that must be considered when deciding whether or not a general practice has
developed > uniformity, repetition, time, number of states, actions speak louder than words
opinio juris - ✔✔- psychological or subjective element
- North Sea Continental Shelf case
- state must comply with usage/practice because it feels legally obliged to do so
- it must feel that if it does not follow the usage, it will be committing an international 'wrong' -
breaking int law
Self executing treaty according to Shearer - ✔✔- treaty 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
Peaceful settlement of disputes - ✔✔- negotiation (engage in discussions)
- mediation (state assisted through a 3rd party)
- conciliation (commission set up, outcome binding)
- Inquiry (investigate facts to find solution)
- arbitration (binding award on basis of law)
- judicial settlement by ICJ (contentious or advisory opinions)
Diplomatic protection - ✔✔- state has right to protect its nationals abroad who have been
injured by the actions of the foreign state
