LCP4801 – INTERNATIONAL LAW | 2024 UPDATED
EXAM PACK | MOST TESTED QUESTIONS & VERIFIED
ANSWERS
Diplomatic protection - CORRECT 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. - CORRECT 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. - CORRECT 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 - CORRECT 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) - CORRECT ANSWER ✅✅✅The negotiating and signing of all international
agreements is the responsibility
of the national executive.
Section 231(2) - CORRECT 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) - CORRECT 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) - CORRECT ANSWER ✅✅✅The Republic is bound by international agreements
which were binding on the
Republic when the Constitution took eff ect.
self-executing treaty - CORRECT 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 -
CORRECT 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) - CORRECT 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 - CORRECT 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 - CORRECT 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
EXAM PACK | MOST TESTED QUESTIONS & VERIFIED
ANSWERS
Diplomatic protection - CORRECT 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. - CORRECT 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. - CORRECT 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 - CORRECT 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) - CORRECT ANSWER ✅✅✅The negotiating and signing of all international
agreements is the responsibility
of the national executive.
Section 231(2) - CORRECT 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) - CORRECT 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) - CORRECT ANSWER ✅✅✅The Republic is bound by international agreements
which were binding on the
Republic when the Constitution took eff ect.
self-executing treaty - CORRECT 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 -
CORRECT 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) - CORRECT 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 - CORRECT 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 - CORRECT 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
