LCP4801 INTERNATIONAL LAW (QUESTIONS AND ANSWERS 2021)
,Write an essay in which you discuss the term “customary international law”. In your
essay you must define “customary international law”, describe the requirements for
its formation (with reference to applicable case law) and explain whether and to what
extent customary international law is part of South African law. [25]
Article 38 of the Statute of the ICJ provides that in settling disputes the court shall apply
“international custom, as evidence of a general practice accepted as law”. Custom is
therefore a practice followed by states because they feel legally obliged to behave in such a
way. There are two main requirements for the creation of a customary international rule:
1) Usus (settled practice)
2) Opinio iuris (a sense of obligation on the part of the states)
Usus is constant and uniform usage as defined in the Asylum case. In this regard:
- The practice need not be “universal”, therefore widespread acceptance by states
would be sufficient (Fisheries Jurisdiction case).
- Usage can develop between two, or only a few states to form a local or regional
custom (Case Concerning Right of Passage over Indian Territory, contrary to the
Asylum case).
- The number of states is not as important as the identity of those states. In every
activity, some states’ actions are more important than others (eg the US and USSR
played an important role in developing the law of outer space).
- The number of repetitions necessary to create a custom depends on the nature of
the rule involved and the number of states affected.
- The duration for which the states’ practice must have persisted likewise depends on
the nature of the usage. For example, in S v Petane the court cited a GA Resolution
as a customary rule which developed with little practice (the Resolution concerned
the law of outer space).
- The practice must be characterised by a degree of uniformity, or rather substantial
compliance (Nicaragua v USA). It is sufficient that the conduct of states is generally
consistent with a rule. An inconsistency should be treated as a breach of the rule,
rather than an indication that a new rule has been created.
- According to the rule of the persistent objector, a state isn’t bound if it persistently
objects to the practice while the custom was being developed (Anglo-Norwegian
Fisheries case, North Sea Continental Shelf case).
Opinio iuris is the second requirement which must be present before the usage can become
a binding rule of customary international law. As was stated in the North Sea Continental
Shelf case, the states concerned must feel that they are conforming to what amounts to a
legal obligation. In other words, they must feel that if they did not follow the usage, they
would be breaking international law and would have to bear the consequences for not
complying with it.
“The expert in anything was once a beginner”
,In terms of section 232 of the Constitution, “customary international law is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament”. From this provision it
is clear that customary international law is South African (domestic) law and as such it will
be applied directly. If the alleged rule meets the requirements of usus and opinio iuris, the
court will take judicial notice of it and apply it. Only two conditions must be met: the rule must
not contradict the Constitution, and it must not contradict an Act of Parliament. Common law
rules and judicial decisions are subordinate to or at least on par with customary international
law.
2. In November 2012, the United Nations General Assembly passed a resolution
changing the status of Palestine from an “observer entity” to a “nonmember
observer state” within the United Nations system. Susan Rice (the US
Ambassador to the UN) told the Assembly: “This resolution does not establish
that Palestine is a state”. You have been tasked by the South African
government to write a legal opinion on whether or not Palestine has become an
independent state in light of the requirements for statehood in international
law. [25]
For an entity to qualify as a state, it must meet all the requirements for statehood. The
Montevideo Convention of 1933 provides the following definition: “The state as a person of
international law should possess the following qualifications: (a) a permanent population; (b)
a defined territory; (c) government; (d) capacity to enter into relations with other states”.
Permanent population
The “permanent population” requirement does not mean that there is a required minimum
number of people. Furthermore, the fact that a population is nomadic does not affect
statehood adversely, as was pointed out by the court in the Western Sahara case. What is
important for the purpose of the “permanent population” requirement is that the population
lives in accordance with an organised, recognisable social and political structure with a
clear chain of command.
Defined territory
It is important for a state’s territory to be defined. There is no required minimum size. This
requirement does not imply that the territory must have undisputed borders. Israel serves as
an example: despite the ongoing dispute with Palestine, Israel still satisfies the requirements
for statehood. Furthermore, the territory need not necessarily form one single unit. What is
important is that the state must be sufficiently homogenous to be able to perform its function
of government effectively (eg USA and Alaska separated by Canada; East and West
Pakistan were separated by India). In other words, there must be a stable community within
an area over which its government has control. If the territories are so dispersed that such
control cannot be exercised in all of them, statehood will not be granted.The case of Van
Deventer v Hancke & Mossop is an example of a case where a community of people, ruled
by a particular government, qualified as a state despite the fact that it had no territory.
“The expert in anything was once a beginner”
, Effective government
The entity must have a government that is independent of any other authority, and it must
have legislative and administrative competencies. Brownlie suggests some guidelines
which can be used to assess a government’s effectiveness:
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?
If the answer to these questions is yes, that is an indication of an effective government.
Capacity to enter into relations with other states
This requirement means that a state must be independent of any other authority in the
exercise of its foreign relations. In other words, the entity must be regarded as sovereign.
The fact that a state has relinquished certain aspects of its sovereignty will not necessarily
deprive it of its statehood (R v Christian). What is important is the presence of external
sovereignty. This requirements is also closely linked to the issue of recognition: if the other
members of the international community refuse to recognise a state and to enter into
relations with it, that state will for all practical purposes be deprived of its capacity to enter
into relations with other states.
Recognition
The “requirement” of recognition is not specifically mentioned in the Montevideo
Convention. However it is crucial in practice and underlies the ability of the state to enter
into relations with other states. If an insufficient number of states were to recognise
Palestine (in this scenario), it is doubtful whether it will be considered to have the ability to
enter into international relations, and it would therefore be unable to satisfy the
requirements of the Montevideo Convention.
The dilemma as to whether or not recognition is one of the requirements for statehood has
given rise to two theories: the declaratory theory, and the constitutive theory. Proponents of
the constitutive theory maintain that the act of recognition is one of the requirements for the
creation of international legal personality. The proponents of the declaratory theory advocate
that the act of recognition is not requirement of statehood; statehood and international legal
personality arise the moment the requirements of the Montevideo Convention have been
fulfilled. These two theories have been evaluated by a South African court in S v Banda. The
court came to the conclusion that the declaratory theory was the more acceptable one. It was
found to be preferable because:
- it was objective, and
- it took into account only those 4 requirements which are based on well established rules
of international law.
The court criticised the constitutive theory for being arbitrarily applied and politically based.
As pointed out, however, the point remains that one can’t completely ignore the need for
recognition. After all, the capacity of a new entity to enter into foreign relations depends on
“The expert in anything was once a beginner”
,Write an essay in which you discuss the term “customary international law”. In your
essay you must define “customary international law”, describe the requirements for
its formation (with reference to applicable case law) and explain whether and to what
extent customary international law is part of South African law. [25]
Article 38 of the Statute of the ICJ provides that in settling disputes the court shall apply
“international custom, as evidence of a general practice accepted as law”. Custom is
therefore a practice followed by states because they feel legally obliged to behave in such a
way. There are two main requirements for the creation of a customary international rule:
1) Usus (settled practice)
2) Opinio iuris (a sense of obligation on the part of the states)
Usus is constant and uniform usage as defined in the Asylum case. In this regard:
- The practice need not be “universal”, therefore widespread acceptance by states
would be sufficient (Fisheries Jurisdiction case).
- Usage can develop between two, or only a few states to form a local or regional
custom (Case Concerning Right of Passage over Indian Territory, contrary to the
Asylum case).
- The number of states is not as important as the identity of those states. In every
activity, some states’ actions are more important than others (eg the US and USSR
played an important role in developing the law of outer space).
- The number of repetitions necessary to create a custom depends on the nature of
the rule involved and the number of states affected.
- The duration for which the states’ practice must have persisted likewise depends on
the nature of the usage. For example, in S v Petane the court cited a GA Resolution
as a customary rule which developed with little practice (the Resolution concerned
the law of outer space).
- The practice must be characterised by a degree of uniformity, or rather substantial
compliance (Nicaragua v USA). It is sufficient that the conduct of states is generally
consistent with a rule. An inconsistency should be treated as a breach of the rule,
rather than an indication that a new rule has been created.
- According to the rule of the persistent objector, a state isn’t bound if it persistently
objects to the practice while the custom was being developed (Anglo-Norwegian
Fisheries case, North Sea Continental Shelf case).
Opinio iuris is the second requirement which must be present before the usage can become
a binding rule of customary international law. As was stated in the North Sea Continental
Shelf case, the states concerned must feel that they are conforming to what amounts to a
legal obligation. In other words, they must feel that if they did not follow the usage, they
would be breaking international law and would have to bear the consequences for not
complying with it.
“The expert in anything was once a beginner”
,In terms of section 232 of the Constitution, “customary international law is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament”. From this provision it
is clear that customary international law is South African (domestic) law and as such it will
be applied directly. If the alleged rule meets the requirements of usus and opinio iuris, the
court will take judicial notice of it and apply it. Only two conditions must be met: the rule must
not contradict the Constitution, and it must not contradict an Act of Parliament. Common law
rules and judicial decisions are subordinate to or at least on par with customary international
law.
2. In November 2012, the United Nations General Assembly passed a resolution
changing the status of Palestine from an “observer entity” to a “nonmember
observer state” within the United Nations system. Susan Rice (the US
Ambassador to the UN) told the Assembly: “This resolution does not establish
that Palestine is a state”. You have been tasked by the South African
government to write a legal opinion on whether or not Palestine has become an
independent state in light of the requirements for statehood in international
law. [25]
For an entity to qualify as a state, it must meet all the requirements for statehood. The
Montevideo Convention of 1933 provides the following definition: “The state as a person of
international law should possess the following qualifications: (a) a permanent population; (b)
a defined territory; (c) government; (d) capacity to enter into relations with other states”.
Permanent population
The “permanent population” requirement does not mean that there is a required minimum
number of people. Furthermore, the fact that a population is nomadic does not affect
statehood adversely, as was pointed out by the court in the Western Sahara case. What is
important for the purpose of the “permanent population” requirement is that the population
lives in accordance with an organised, recognisable social and political structure with a
clear chain of command.
Defined territory
It is important for a state’s territory to be defined. There is no required minimum size. This
requirement does not imply that the territory must have undisputed borders. Israel serves as
an example: despite the ongoing dispute with Palestine, Israel still satisfies the requirements
for statehood. Furthermore, the territory need not necessarily form one single unit. What is
important is that the state must be sufficiently homogenous to be able to perform its function
of government effectively (eg USA and Alaska separated by Canada; East and West
Pakistan were separated by India). In other words, there must be a stable community within
an area over which its government has control. If the territories are so dispersed that such
control cannot be exercised in all of them, statehood will not be granted.The case of Van
Deventer v Hancke & Mossop is an example of a case where a community of people, ruled
by a particular government, qualified as a state despite the fact that it had no territory.
“The expert in anything was once a beginner”
, Effective government
The entity must have a government that is independent of any other authority, and it must
have legislative and administrative competencies. Brownlie suggests some guidelines
which can be used to assess a government’s effectiveness:
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?
If the answer to these questions is yes, that is an indication of an effective government.
Capacity to enter into relations with other states
This requirement means that a state must be independent of any other authority in the
exercise of its foreign relations. In other words, the entity must be regarded as sovereign.
The fact that a state has relinquished certain aspects of its sovereignty will not necessarily
deprive it of its statehood (R v Christian). What is important is the presence of external
sovereignty. This requirements is also closely linked to the issue of recognition: if the other
members of the international community refuse to recognise a state and to enter into
relations with it, that state will for all practical purposes be deprived of its capacity to enter
into relations with other states.
Recognition
The “requirement” of recognition is not specifically mentioned in the Montevideo
Convention. However it is crucial in practice and underlies the ability of the state to enter
into relations with other states. If an insufficient number of states were to recognise
Palestine (in this scenario), it is doubtful whether it will be considered to have the ability to
enter into international relations, and it would therefore be unable to satisfy the
requirements of the Montevideo Convention.
The dilemma as to whether or not recognition is one of the requirements for statehood has
given rise to two theories: the declaratory theory, and the constitutive theory. Proponents of
the constitutive theory maintain that the act of recognition is one of the requirements for the
creation of international legal personality. The proponents of the declaratory theory advocate
that the act of recognition is not requirement of statehood; statehood and international legal
personality arise the moment the requirements of the Montevideo Convention have been
fulfilled. These two theories have been evaluated by a South African court in S v Banda. The
court came to the conclusion that the declaratory theory was the more acceptable one. It was
found to be preferable because:
- it was objective, and
- it took into account only those 4 requirements which are based on well established rules
of international law.
The court criticised the constitutive theory for being arbitrarily applied and politically based.
As pointed out, however, the point remains that one can’t completely ignore the need for
recognition. After all, the capacity of a new entity to enter into foreign relations depends on
“The expert in anything was once a beginner”
