LCP4801
EXAM PACK
, lOMoARcPSD|18222662
LCP4801
F I CONCESSIONS
ALTERNATIVE ASSESSMENT PORTFOLIO
MEMO
INTSRUCTIONS
1. Answer the questions below and send your answer directly to Ms PG Finney
by fax or e-mail.
E-mail:
Fax: 012 429 8587
2. The due date for your answer is 2 February 2015, no later than 16h00.
3. This assessment will not be returned to you. The lecturers will mark it and the
result will be sent to the Department of Student Assessment and Administration.
The University will inform you of your final result. The lecturers are not
allowed to communicate your result to you.
4. Your answers must be in your own words. In addition, all sources (case law,
legislation, treaties, textbooks, journal articles, study guides, tutorial letters, et
cetera) must be properly acknowledged (by footnotes, or reference to the
relevant source(s) in the text of your answers). If you are found to have
plagiarised, your result will be ‘0’.
5. The questions appear both in English and Afrikaans and you are welcome
to answer in either language.
6. Please note that you are required to answer ALL questions in Section A, and
only ONE question from Section B.
7. This portfolio assessment takes the place of an examination. Therefore, you
may not contact your lecturers with questions regarding the content of this
portfolio and the expected answers.
Page 1 of 24
, lOMoARcPSD|18222662
SECTION A: 125 MARKS
AFDELING A: 125 PUNTE
ANSWER ALL QUESTIONS/ BEANTWOORD AL DIE VRAE
QUESTION 1/ VRAAG 1
Compare the role of consent, as expressed by states in the conclusion of a treaty on
the one hand, and in the formation of a customary international law rule on the other.
[15]
Vergelyk die rol van die toestemming van state by die sluiting van ‘n verdrag aan die
een kant, en die ontwikkeling van gewoonteregtelike internasionale reg aan die
ander kant. [15]
It is generally accepted that the binding force of international law stems from the fact the
states have agreed that particular international law rule(s) should govern their relations. As
was stated in the SS Lotus case (France v Turkey 1927 PCIJ Ser A no 10):
International law governs relations between independent States. The rules of law binding
upon States emanate from their own free will as expressed in Conventions or by Usages
generally accepted as expressing the principles of law.
By its nature, a treaty is the most obvious example of a PIL source created through
consent. Most provisions of the Vienna Convention on the Law of Treaties are quite clear
regarding the requirement of consent. For example, article 7 contains provisions as to who
is considered as representing a state for the purposes of, amongst others, expressing the
consent of that state to be bound by the treaty. Article 8 is unambiguous in stating that if a
person is not authorised to represent a state, all acts performed by him in relation to the
conclusion of a treaty will be without legal effect, unless the state subsequently ratifies
those acts. Articles 11-16 elaborate on the means of expressing a state’s consent to be
bound by a treaty such as: signature, ratification, acceptance, approval, accession, etc. The
allowance for reservations to multilateral treaties is likewise premised on the principle that a
state must have consented to a provision, before the latter can be binding on it.
The legal obligation to comply with a treaty flows from the principle of pacta sunt servanda
(“agreements must be obeyed”). But – to put it bluntly - who consented to pacta sunt
servanda? It may perhaps be argued that the principle is based on customary international
law, which (as discussed below) is to a large extent a consensual source. But if we say that
pacta sunt servanda is founded on consent, we will have to admit to the possibility that this
consent may be withdrawn. This would spell the end of all obligations flowing from consent.
For one, this would doom the existence of treaties as a PIL source. Therefore, pacta sunt
servanda cannot be consensual.
Another source of PIL is customary international law. A rule of customary international
law is formed as a result of:
-Settled practice –usus,
Page 2 of 24
, lOMoARcPSD|18222662
-Which practice is followed, because the states feel that there is a legal obligation on them
to do so -opinio iuris.
The presence of states’ consent to the rule is obvious where states actively engage in this
practice. It may also be implied by virtue of other relevant manifestations of state conduct.
The role of consent is further reinforced by the existence of the persistent objector doctrine
(a state which persistently protests to the formation of the rule will not be bound by it).
Conversely, by failing to object to the formation of customary international law, a state is
implicitly exercising its will to be bound to the rule.
However, what happens if a particular state wishes to be freed from the obligation to adhere
to the rule? In terms of a theory put forward by Triepel, the customary international law rule
is created by the collective will of states from which one state cannot withdraw individually.
But what we then have is a situation in which individual consent yields to the collective will
of states – which undermines the role of consent in the formation of customary international
law.
You have probably also spotted the paradox created by the second requirement for the
formation of customary international law: that of opinio juris. Remember – states must follow
the particular practice, because they believe that they are legally obliged to do so. But this
belief will be false if it is held during the formative stages of a legal norm. And the source of
this ‘pre-law’ belief cannot be consent, if the states are already convinced that they are
obliged to follow the practice.
QUESTION 2/ VRAAG 2
X, a foreign national, commits fraud in state A and thereafter flees to South Africa.
State A approaches the South African government with a request for X’s extradition
to state A to stand trial. There is no extradition treaty between state A and South
Africa, but the South African Extradition Act 67 of 1962 provides in section 3(2) that
suspected criminals may be extradited in the absence of a treaty if “the President so
decides”. The South African President does “so decide” and the case is referred for
an extradition hearing in terms of the Act. The full extradition process is followed,
and the result is an extradition order against X.
In light of these facts, answer the following questions:
X, ‘n buitelandse burger, pleeg bedrog in staat A en vlug daarna na Suid-Afrika. Staat
A nader die Suid-Afrikaanse regering met ‘n versoek om X aan staat A uit te lewer om
verhoor te word. Daar is geen uitleweringsooreenkoms tussen staat A en Suid-Afrika
nie, maar die Suid-Afrikaanse Wet op Uitlewering 67 van 1962 bepaal in artikel 3(2)
dat verdagtes by afwesigheid van ‘n verdrag uitgelewer mag word “indien die
President so besluit”. Die Suid-Afrikaanse President besluit wel so en die saak word
verwys vir ‘n uitleweringsverhoor ingevolge die Wet. Die volle uitleweringsproses
word gevolg en die resultaat is ‘n uitleweringsbevel teen X.
In die lig van hierdie feite, beantwoord die volgende vrae:
Page 3 of 24
EXAM PACK
, lOMoARcPSD|18222662
LCP4801
F I CONCESSIONS
ALTERNATIVE ASSESSMENT PORTFOLIO
MEMO
INTSRUCTIONS
1. Answer the questions below and send your answer directly to Ms PG Finney
by fax or e-mail.
E-mail:
Fax: 012 429 8587
2. The due date for your answer is 2 February 2015, no later than 16h00.
3. This assessment will not be returned to you. The lecturers will mark it and the
result will be sent to the Department of Student Assessment and Administration.
The University will inform you of your final result. The lecturers are not
allowed to communicate your result to you.
4. Your answers must be in your own words. In addition, all sources (case law,
legislation, treaties, textbooks, journal articles, study guides, tutorial letters, et
cetera) must be properly acknowledged (by footnotes, or reference to the
relevant source(s) in the text of your answers). If you are found to have
plagiarised, your result will be ‘0’.
5. The questions appear both in English and Afrikaans and you are welcome
to answer in either language.
6. Please note that you are required to answer ALL questions in Section A, and
only ONE question from Section B.
7. This portfolio assessment takes the place of an examination. Therefore, you
may not contact your lecturers with questions regarding the content of this
portfolio and the expected answers.
Page 1 of 24
, lOMoARcPSD|18222662
SECTION A: 125 MARKS
AFDELING A: 125 PUNTE
ANSWER ALL QUESTIONS/ BEANTWOORD AL DIE VRAE
QUESTION 1/ VRAAG 1
Compare the role of consent, as expressed by states in the conclusion of a treaty on
the one hand, and in the formation of a customary international law rule on the other.
[15]
Vergelyk die rol van die toestemming van state by die sluiting van ‘n verdrag aan die
een kant, en die ontwikkeling van gewoonteregtelike internasionale reg aan die
ander kant. [15]
It is generally accepted that the binding force of international law stems from the fact the
states have agreed that particular international law rule(s) should govern their relations. As
was stated in the SS Lotus case (France v Turkey 1927 PCIJ Ser A no 10):
International law governs relations between independent States. The rules of law binding
upon States emanate from their own free will as expressed in Conventions or by Usages
generally accepted as expressing the principles of law.
By its nature, a treaty is the most obvious example of a PIL source created through
consent. Most provisions of the Vienna Convention on the Law of Treaties are quite clear
regarding the requirement of consent. For example, article 7 contains provisions as to who
is considered as representing a state for the purposes of, amongst others, expressing the
consent of that state to be bound by the treaty. Article 8 is unambiguous in stating that if a
person is not authorised to represent a state, all acts performed by him in relation to the
conclusion of a treaty will be without legal effect, unless the state subsequently ratifies
those acts. Articles 11-16 elaborate on the means of expressing a state’s consent to be
bound by a treaty such as: signature, ratification, acceptance, approval, accession, etc. The
allowance for reservations to multilateral treaties is likewise premised on the principle that a
state must have consented to a provision, before the latter can be binding on it.
The legal obligation to comply with a treaty flows from the principle of pacta sunt servanda
(“agreements must be obeyed”). But – to put it bluntly - who consented to pacta sunt
servanda? It may perhaps be argued that the principle is based on customary international
law, which (as discussed below) is to a large extent a consensual source. But if we say that
pacta sunt servanda is founded on consent, we will have to admit to the possibility that this
consent may be withdrawn. This would spell the end of all obligations flowing from consent.
For one, this would doom the existence of treaties as a PIL source. Therefore, pacta sunt
servanda cannot be consensual.
Another source of PIL is customary international law. A rule of customary international
law is formed as a result of:
-Settled practice –usus,
Page 2 of 24
, lOMoARcPSD|18222662
-Which practice is followed, because the states feel that there is a legal obligation on them
to do so -opinio iuris.
The presence of states’ consent to the rule is obvious where states actively engage in this
practice. It may also be implied by virtue of other relevant manifestations of state conduct.
The role of consent is further reinforced by the existence of the persistent objector doctrine
(a state which persistently protests to the formation of the rule will not be bound by it).
Conversely, by failing to object to the formation of customary international law, a state is
implicitly exercising its will to be bound to the rule.
However, what happens if a particular state wishes to be freed from the obligation to adhere
to the rule? In terms of a theory put forward by Triepel, the customary international law rule
is created by the collective will of states from which one state cannot withdraw individually.
But what we then have is a situation in which individual consent yields to the collective will
of states – which undermines the role of consent in the formation of customary international
law.
You have probably also spotted the paradox created by the second requirement for the
formation of customary international law: that of opinio juris. Remember – states must follow
the particular practice, because they believe that they are legally obliged to do so. But this
belief will be false if it is held during the formative stages of a legal norm. And the source of
this ‘pre-law’ belief cannot be consent, if the states are already convinced that they are
obliged to follow the practice.
QUESTION 2/ VRAAG 2
X, a foreign national, commits fraud in state A and thereafter flees to South Africa.
State A approaches the South African government with a request for X’s extradition
to state A to stand trial. There is no extradition treaty between state A and South
Africa, but the South African Extradition Act 67 of 1962 provides in section 3(2) that
suspected criminals may be extradited in the absence of a treaty if “the President so
decides”. The South African President does “so decide” and the case is referred for
an extradition hearing in terms of the Act. The full extradition process is followed,
and the result is an extradition order against X.
In light of these facts, answer the following questions:
X, ‘n buitelandse burger, pleeg bedrog in staat A en vlug daarna na Suid-Afrika. Staat
A nader die Suid-Afrikaanse regering met ‘n versoek om X aan staat A uit te lewer om
verhoor te word. Daar is geen uitleweringsooreenkoms tussen staat A en Suid-Afrika
nie, maar die Suid-Afrikaanse Wet op Uitlewering 67 van 1962 bepaal in artikel 3(2)
dat verdagtes by afwesigheid van ‘n verdrag uitgelewer mag word “indien die
President so besluit”. Die Suid-Afrikaanse President besluit wel so en die saak word
verwys vir ‘n uitleweringsverhoor ingevolge die Wet. Die volle uitleweringsproses
word gevolg en die resultaat is ‘n uitleweringsbevel teen X.
In die lig van hierdie feite, beantwoord die volgende vrae:
Page 3 of 24
