LCP4801 EXAM PACK 2023

EXAMINATION PACK LCP4801 – INTERNATIONAL LAW PAST PAPER SOLUTIONS 3 | P a g e Contents EXAMINATION PACK ................................................................................................ 1 LCP4801 – INTERNATIONAL LAW ........................................................................... 1 LCP4801 MAY/JUNE 2020 ONLINE EXAM ................................................................ 4 LCP4801 MAY/JUNE 2018 ........................................................................................ 23 LCP4801 OCT/NOV 2018 ......................................................................................... 33 LCP4801 MAY/JUNE 2019 ........................................................................................ 46 LCP4801 OCT/NOV 2019 ......................................................................................... 60 4 | P a g e LCP4801 MAY/JUNE 2020 ONLINE EXAM QUESTION 1 International law is the law that governs relations between states. It is also the law that governs relations between states and international organisations as well as, between international organisations. EVOLUTION OF INTERNATIONAL LAW AND WIDELY PERVASIVE EUROCENTRIC APPROACH The evolution of international law has been claimed to be owed to the Western legal players. It is because of this belief that the historical evolution of international law is an integral part of the phenomenon of state formation. This process owed its influence to the conditions that started to prevail towards the end of the 1500s in parts of Europe and which account for what is usually referred to as the Eurocentric nature of ‘early’ international law. The appearance of international relations thus coincided with the rise of several sovereign states as they entered into external relations with one another or when they sought the formation of alliances between themselves for the protection of their own or collective interests. The period from 1500 to 1648 This period is known for the emergence of modern Europe and was characterised by vigorous economic expansion, followed by social, political and cultural transformations. After two centuries of decline, most areas in Europe now experienced an expansion in population growth with commercial activities becoming stronger and more closeknit within Europe. Geographic discoveries and expansion helped integrate Europe into a kind of world economic system. This period saw the emergence of Westphalian model. This is an international order consisting mainly or exclusively of independent sovereign States which exercised untrammeled authority within their respective territories and freely coordinated their 5 | P a g e mutual relations in accordance with their perceived self-interest on the basis of equality. It is a model which upholds state sovereignty and its major role in being a role player in international law. The sovereign equality of states and respect for their independence, ideas that developed between this period are still part of the fundamental principles of international law, and are enshrined in the UN Charter. The period from 1648 to 1815 This event, described as the ‘most important event in modern history’, called into being a new form of state referred to as the nation state. It was based on a set of rules that were entirely different from those applicable in the colonial motherland at the time that the colonial émigrés started to settle in the new world. What emerged here was the concept of the nation as a political entity that was a voluntary association of a people under a common set of laws and represented by the same government. Connected to this historical notion of state formation were the aspirations of peoples or nations to independent statehood in the political and legal sense of the word. This led to the often interchangeable use of concepts such as ‘nation’ and ‘state’ in international law and in international relations. The developments in this section provided the foundation for the establishment of a new international order based on a European balance of power. International law became the preserve of the European Christian states. Therefore, by the end of this epoch the new international order reflected European values. Access to this order by foreign states and overseas possessions was possible only with the consent of the Western powers and on conditions determined by them. The nineteenth century was also the age of the European conferences between the major powers. These contributed significantly to the development of rules governing the waging of war and the settlement of disputes. Through a network of international relations, the application of international law principles expanded and necessitated the academic study of state practice at institutions of higher learning. The period from 1815 to 1914 6 | P a g e This is the period which saw the emergence of colonialism when African states were regarded as terra nullius. Colonial acquisitions were that while the presence of an indigenous population in these territories could prevent or limit the acquisition of private law rights, it could not prevent occupation of the territory for the purpose of asserting state sovereignty rights. Hence, any inhabited territory that was not the sovereign territory of a state, or a protectorate of a state, could become the object of occupation. According to this theory, subjects of international law were only those states that exercised all rights of sovereignty and performed state functions in the same way as modern European states did. In Africa, although there were more or less distinct forms of political organisation, these were not sufficient to make it possible to speak of a real state. Therefore, they were not subjects of international law and their territory was ownerless in international law. Any recognised subject of international law could occupy Africa as terra nullius. Before World Wars Before the outbreak of World War I the Hague International Peace Conferences of 1899 and 1907 played a great role in developing international law. Their legacy in the years to come would feature strongly in three areas of concern for international law – namely, peaceful settlement of disputes, disarmament, and the law of armed conflict. The Hague conferences produced the first, landmark codification of international law principles, inspired by humanitarian and peace concerns, but had no mitigating effect on Britain’s scorched earth policy and the use of concentration camps in its war against the Boer Republics in South Africa (1899–1902). Nor could it prevent the outbreak of World War I. Post-World Wars 1 and 2 During World War I the peaceful settlement of disputes received considerable attention in articles 12, 13 and 15 of the League of Nations, which provided for arbitration and judicial settlement as peaceful means of dispute resolution. Judicial settlement was given further substance in article 14, which made provision for the establishment of the 7 | P a g e Permanent Court of International Justice (PCIJ), the predecessor of the current International Court of Justice (ICJ). The PCIJ was inaugurated in 1922 and dissolved in 1946. The rise of international organisations The establishment and proliferation of international organisations is generally attributed to the changing nature of international society, which has seen a marked increase in the degree of interactions between states, as well as the complexity of issues involved. In such circumstances, the traditional bilateral and ad hoc relations between states are said to have become outmoded, presenting a need to devise new forms and institutions of organisation. These developments form part of a progressive narrative charting the ongoing transformation of international law itself, from a law of coexistence to cooperation (and perhaps, community). These periods refer to European scholars, European states and ideas as the foundation of the theories and practice of international law, including ideas such as state sovereignty, states as subject of international law, diplomatic immunity, and international organisations. Key contributions by Africa to the development Despite the unwritten nature of law in Africa, and of many of the historical sources, there is abundant evidence of formal relations at the highest governmental levels between the different peoples of West Africa in the pre-colonial period, and there is even some evidence of the existence of an inter-states system.1 The diplomatic interactions between African Kingdoms and European powers was mainly regulated by the principles of African customary law. For example, oaths and medicines were taken by parties in order to ensure the sanctity of contracts and treaties. The diplomatic immunity of accorded to representatives were based on customary rules 1 Smith R “Peace and Palaver International relations in pre-colonial West Africa” 1971 Journal of African History 599–621. 8 | P a g e of respect, care and hospitality. The Kingdoms of Benin and Kongo, exchanged ambassadors with Portugal. Furthermore, slavery and colonialism contributed significantly to the relegation of African contribution to international law. Many of the principles that today guide diplomatic interaction, issues such as diplomatic immunity etc. were also applied during this period, such as the appointment of ambassadors, diplomatic immunity, the principle of sovereignty and territorial sovereignty, and principles of trade. Diplomats were appointed from the rank of nobles, and even slaves in some cases. These diplomats carried credentials such as fan, staff, cane or wore special clothing to signify their rank. There were breaches of diplomatic rules in some cases.2 In large areas of Africa there had emerged broadly similar rules of customary law, which makes it possible to speak of the existence of a universal body of principles of African customary law that is not essentially dissimilar to the broad principles of European law, this customary law shares with customary international law the characteristic that its validity does not depend upon any theory of sovereignty.3 Thus it seems that customary law in unity in diversity, provided a bond between the different states and peoples of West Africa, and a form of international law by which their relations with each other could be regulated.4 The similarities of the West African to the West European system, especially as the latter was before the emergence of the nation state and of permanent diplomacy about the time of the Renaissance, are striking. Ambassadors were despatched to represent their sovereigns abroad; their work, although it had its hazards, was within the protection of the law; treaties were concluded and solemn sanctions provided to uphold them since, in Africa as in Europe, 'treaties are made to be kept'.5 Conclusion 2 Smith 1971 Journal of African History 599–621. 3 Elias T “Africa and the development of international law” 1972. 4 Smith 1971 Journal of African History 599–621. 5 Smith 1971 Journal of African History 599–621. 9 | P a g e It is not true that international law originates from Europe, because many pre-colonial African empires practiced international law in one form or the other. QUESTION 2 a) Immunity in the context of international law Immunity is the principle under international law which will prohibit a state from exercising jurisdiction over a matter that would ordinarily fall within its jurisdiction, either based on the identity of the person or entity involved (for example, a head of state) or the nature of the conduct in question. b) Various forms of immunity that can be enjoyed by various office bearers in international law There are two forms of immunity, namely, personal and functional immunity. i. Personal immunity This form of immunity provides complete immunity of the person of certain officeholders while they carry out important representative functions’. It is absolute, covering both private and public acts committed by officials, even those committed prior to their taking office, but temporary, that is, it only applies in so far as the person holds the office in question. This form of immunity is provided for under both customary international law, as well as various treaties. In the Arrest Warrant6 it was held that these immunities also extend to certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs. ii. Functional immunity This form of immunity relates to conduct carried out on behalf of a State. It is based on the notion that a state may not sit in judgment on the policies and 6 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) ICJ Reports 2002. 10 | P a g e actions of another state, since they are both sovereign and equal. Equally, when a person acts on behalf of a state, whether or not they are officials of that state, they may be able to rely on this form of immunity in respect of any criminal sanctions that would otherwise apply. However, in practice, functional immunity is more commonly raised in civil cases. Different from personal immunity, functional immunity does not attach to all conduct performed by state officials, it only applies to conduct carried out within the official capacity, therefore, not absolute. It is also permanent and does not lapse when the official ceases to hold office because it is the conduct itself and not the office bearer that forms the basis of that immunity. iii. Diplomatic immunity In terms of section 3(1) of the DIPA, the Vienna Convention on Diplomatic Relations 1961 applies to all diplomatic missions and members of such missions in the Republic. The reason for this immunity is because of the functions which are performed by the diplomats (diplomats represent their state, protect the interests of their nationals, conduct negotiations between their government and the government of the host state, report on conditions in the host state and promote friendly relations). It could also, in certain circumstances, be difficult for the embassy to fulfil its protective function without immunity. The reason behind diplomatic immunity is therefore to enable the mission to perform its functions. iv. Consular immunity In terms of section 3(2) of the DIPA, the Vienna Convention on Consular Relations 1963 applies to all consular posts and members of such posts in the Republic. The reasoning behind consular immunity is the same as that behind diplomatic immunity. However, because a consulate has less status than an embassy, the extent of its immunity is reduced accordingly. 11 | P a g e c) The court approached the claims by the Minister of International Relations that Grace Mugabe enjoyed immunity The Minister in the current case gave immunity to Grace under section 7(2) of Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA). This section states that the Minister may in any particular case if it is not expedient to enter into an agreement as contemplated in subsection (1) and if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette.7 The issues before the court were as follows:8 1. Did Mugabe enjoy immunity for the alleged unlawful act perpetrated against Engels by virtue of being a spouse of a head of state? 2. If not, was the decision of the Minister to confer or grant immunity to Mugabe constitutional and lawful? The court held that customary international law is a recognised well established practice that states adhere to in their dealings with each other.9 For customary law to be applicable it has to meet both requirements usus and opinio juris not only one. Usus was met but whether opinio juris was met was a question of fact as well a question of law. The court held that immunity is not for personal gain of the official but it exists to ensure that states function effectively and that there is a well ordered workable system of international relations where peace and harmony can exist between states.10 The court quoted Arrest Warrant case in that the functions of Minister Foreign Affairs (this applies to the head of state as well as the head of government) are such that throughout the duration of his/her office he/she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity that inviolability protects the 7 Diplomatic Immunities and Privileges Act 37 of 2001. 8 Democratic Alliance v Minister of International Relations and Co-operation Case No 58755/17. 9 Article 38(1)(b) of the Vienna Convention on the Law of Treaties. 10 Democratic Alliance v Minister of International Relations and Co-operation [17]. 12 | P a g e individual concerned against any act of authority of another state which would hinder him/her in the performance of his/her duties.11 In answering whether personal immunity applies to the spouse of the head of state, the court held that in a South African context personal immunity will be granted where: i. A customary norm that is consonant with the prescripts of the Constitution; ii. The prescripts of an international treaty which is constitutionally compliant; and iii. National legislation which is constitutionally compliant. The decision that does not fall within one of the above categories will not withstand the test of legality, reasonableness and rationality. The court further held that the customary international law provides the contextual background of Foreign States Immunities Act 87 of 1981 (FSI). The object of FSI is to determine the extent of the immunity of foreign states from the jurisdiction of the courts of the Republic and to give effect and some meaning to international customary law. The FSI continues to state that a foreign state shall be immune from the jurisdiction the courts of the Republic except as provided in this Act or in any proclamation issued thereunder which is then qualified with exceptions. One exception is found in section 6(a) that a foreign state shall not be immune from jurisdiction of the courts of the Republic in proceedings relating to the death or injury of a person (which is what Grace Mugabe was charged with). In terms of this section 6(a) the former President Mugabe would not have enjoyed immunity because such personal immunity has officially been withdrawn by the current section. South African law has parted company with the customary international law and section 232 of the Constitution allows this. Thus even if the Minister was corrected in 11 Democratic Alliance v Minister of International Relations and Co-operation [18]. 13 | P a g e her analysis that customary international law accorded immunity to Dr. Mugabe, her conclusion that this immunity has been extended was to our law was unlawful.12 The court further held that by recognizing the personal immunity the Minister committed an error of law. An error which was fundamental and fatal. It held that such immunity had to be set aside. The court contended that the Minister had the authority to grant the immunity in terms of section 7(2) of DIPA, however, this authority has to be exercised in a manner that is constitutional and lawful.13 The final decision was therefore, that Grace Mugabe was not immune from jurisdiction. QUESTION 3 a) Reservations The international law remedy that is available for the Minister to ensure that signing the above international instruments does not conflict with Dondon’s Sharia law is a reservation to a treaty. Article 2(1)(d) of the VCLT defines reservations as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. b) Lawful reservations Reservations are guided by Article 19 of the VCLT which provides that a state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: i. the reservation is prohibited by the treaty; ii. the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or iii. in cases not failing under subparagraphs (i) and (ii), the reservation is incompatible with the object and purpose of the treaty. Even if a state is allowed 12 Democratic Alliance v Minister of International Relations and Co-operation [40]. 13 Democratic Alliance v Minister of InternationRelations and Co-operation [44]. 14 | P a g e to exclude some provisions of a treaty to which it is party, it can only do so if the effect of the reservation is not to undermine the object and purpose of the treaty. A treaty may altogether disallow the making of reservations or only allow reservations to certain provisions of the treaty. In the case of permissible reservations, a state may not formulate a reservation that cannot be reconciled with the object and purpose of the treaty. Of further importance is the fact that a reservation must be made at the time of signing, ratifying, accepting, approving or acceding to a treaty and not thereafter. In the Genocide Convention14 case it was held that if the reservation is not compatible with the object and purpose of the Convention, then the reserving state cannot be regarded as being a party to the Convention. The court also added that a state objecting to a reservation that it considers to be incompatible with the object and purpose of the Convention is entitled to consider the reserving state not to be a party to the Convention. For states with the opposite view, the reserving state will then still be considered to be a party to the Convention. Acceptance by a state party of a reservation made by another state party causes the latter to be a party to the treaty in relation to the accepting state, if or when the treaty is in force between them. In the case of a contracting state objecting to a reservation, the objection will not preclude the entry into force of the treaty between the objecting and reserving state, unless the objecting state expressly indicated a contrary intention. An act expressing a state’s consent to be bound by a treaty and containing a reservation will take effect as soon as one other contracting state has accepted the reservation. It must also be noted that reservations and objections can be withdrawn at any time, or as stipulated by the treaty itself. Together with article 19 of the VCLT and the ICJ’s advisory opinion, it should be clear that the general rule is that all treaties may be accepted subject to reservations. If the treaty is silent on the question of reservations, it may be 14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) ICJ Reports 1951 (Genocide Convention). 15 | P a g e assumed that reservations are allowed. Due to the fact that treaties are consensual and a proposed reservation is an offer, it stands to reason that the other parties to the multilateral treaty may do one of two things. Such states may either accept the reservation or reject the reservation made by another state. Application to the facts Dondon Republic wants to sign the following treaties: the Convention on the Rights of the Child; the Convention for the Elimination of All Forms of Discrimination Against Women; the African Charter on the Rights and Welfare of the Child; and the Agreement Establishing the African Continental Free Trade Agreement. The Minister upon signing, indicates that the State of Dondon will enter reservations on clauses that provide for: the equality of men and women; the right to education for girls; the right to marry and found a family. From the names of the treaties to be concluded and the reservations by Dondon Republic the purpose and object of the treaties in question will be defeated. Dondon Republic does not believe in equality and yet want to be a party to the Elimination of All Forms of Discrimination Against Women treaty, reserving on the equality of men and women will defeat the purpose and object this treaty. Further, Dondon Republic wants to reserve on the right to education for girls of which the Convention on the Rights of the Child treaty aims to protect such rights. Lastly, the reservation on the right to marry and found a family will also defeat the purpose of the Agreement Establishing the African Continental Free Trade Agreement. c) Invalidity of treaties in general The invalidity of a treaty, or of the consent of a state to be bound by a treaty, may only occur through the application of the VCLT. The validity of a treaty can be contested on the basis of error, fraud, corruption or coercion of a state representative. An error will invalidate the consent to be bound by a treaty if it relates to a fact or situation that was assumed by the consenting state at the time and which formed an 16 | P a g e essential basis of that state’s consent to be bound. However, this will not apply if the state contesting the validity contributed by its own conduct to the error, or, if under the circumstances, the state should have known about a potential error. Consent to be bound by a treaty will also be invalidated if the consent was induced by the fraudulent conduct of another state or procured through the corruption or coercion of a state representative. The following are the circumstances under which a party may raise invalidity of a treaty: i. A state may invoke error if it assumed that a fact or situation which was material and formed the basis of consent when the treaty was concluded and it did not itself contribute to the error or the circumstances were not suspicious. ii. A state may invoke fraud if it was induced by fraudulent action of other negotiating states to conclude the treaty. iii. A state may invoke corruption if there was direct or indirect corruption of the state’s representative by another negotiating state. iv. A state may invoke coercion where there was coercion of a representative by acts or threats against the representative by any person. v. A state may invoke force if there was coercion of a state by threat or use of force contrary to the principles of international law in the UN Charter. A treaty will be rendered void in two instances: first, if the conclusion of the treaty has been induced by the threat or use of force in violation of the principles of international law embodied in the UN Charter and secondly, if at the time of its conclusion it was in conflict with a peremptory norm of general international law. Article 53 of the VCLT defines a peremptory norm (jus congens) as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. QUESTION 4 17 | P a g e a) Forms of jurisdiction that a court could rely on under international law i. The principle of territoriality In terms of the principle of territoriality all crimes committed or alleged to have been committed within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced. This is the case even when the offenders are foreign citizens. This principle is ‘universally recognized’, and, as a matter of practice, states routinely assert jurisdiction over criminal acts that occur within their territory and over the persons responsible for such acts. ii. The nationality principle In terms of the nationality principle, a state may choose to exercise jurisdiction over crimes committed abroad when they are commited by nationals of that state. The link or connecting factor between the state and the conduct in question is the nationality of the perpetrator. iii. Passive personality In terms of the passive personality principle, a state may choose to exercise jurisdiction over extraterritorial crimes committed, or intended to be committed, against their nationals (and in some instances their ordinary residents). Here, the link between the state and the conduct in question is the nationality of the victim of the crime in question. This principle is in a sense the ‘reverse of the coin’ of the nationality principle. In the Arrest Warrant case it was held that passive personality jurisdiction, for so long regarded as controversial, is now reflected not only in the legislation of various countries and today meets with relatively little opposition, at least so far as a particular category of offences is concerned. iv. The protective principle 18 | P a g e A state has jurisdiction over foreigners who perform an act outside the state which endangers the safety of the state. v. The effects principle In terms of this principle, a state has jurisdiction to prescribe law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory. vi. Universal jurisdiction Universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. b) Methods of peaceful settlement of international disputes i. Negotiation The ICJ has emphasised that the parties ‘must negotiate with the aim of arriving at an agreement, and not merely go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement.’ Negotiations must be a genuine attempt to engage in discussions. ii. Mediation In this instance, the states are assisted through the intervention of a third party (the mediator). The mediator is actively involved in conveying each party’s proposals and ideas, and looking for a solution to the problem. Mediation is also known as ‘good offices. iii. Conciliation In this instance, a commission set up for that purpose, either permanently or an ad hoc basis, and it assists the parties to the dispute. This is a formalised form of 19 | P a g e mediation and it is usually decided upon through a bilateral arrangement. See the prescribed textbook for a number of such treaty examples. iv. Inquiry Article 9 of the 1907 Hague Convention for the Pacific Settlement of Disputes provides that where the parties who have not been able to come to an agreement by means of diplomacy should, as far as circumstances allow, institute an international commission of inquiry to facilitate a solution of these disputes by elucidating the facts by means of an impartial and conscientious investigation. An important example, is article 34 of the UN Charter, which provides that the Security Council is to investigate disputes which are ‘likely to endanger the maintenance of international peace and security.’ v. Arbitration Arbitration has been defined by the International Law Commission as the procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted. Parties must agree on:  The identity of the arbitrators  The content of the legal question(s)  What rules of law would apply to the dispute (they are not necessarily rules of public international law)  The time frame within which the award must be made  That the award will be final and binding. vi. Judicial Settlement by the International Court of Justice The International Court of Justice is the judicial organ of the United Nations and its procedures are governed by the ICJ Statute. The judges of this court are expected to recuse themselves, if they have been involved as counsel to one of the parties to the dispute, or in some other 20 | P a g e capacity. However, the mere fact that their state of origin is one of the parties will not on its own be grounds for recusal. In fact, a state may appoint an ad hoc judge, which is one of its nationals, to sit on the case. Two types of proceeding may be brought before the ICJ:  Contentious proceedings where there is a dispute between two (or more) state parties. In these cases, the court will hand down judgment which will be binding on the parties.  Advisory opinions on questions of international law referred to it by the existing UN organs or its specialised agencies. These opinions are not binding. Article 34 of the Statute provides that only states may be parties in cases before the ICJ, although the court may request organisations to place information before it. States must agree to the ICJ’s jurisdiction. Article 36(1) provides that the ICJ will have jurisdiction in all cases “which states in a dispute may agree to and all matters specifically provided for in the Charter of the United Nations or in treaties and conventions in force”. States may submit an existing dispute to the ICJ once they have reached a special agreement to that effect. The court may also be able to exercise jurisdiction which is implied. This happens when one state has initiated proceedings and has agreed to the court’s jurisdiction, while the other state has not expressed its consent, but has acted in a way from which consent may be inferred. Furthermore, articles 36(2) provides that: “[T]he states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to 21 | P a g e any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:  the interpretation of a treaty;  any question of international law;  the existence of any fact which, if established, would constitute a breach of an international obligation;  the nature or extent of the reparation to be made for the breach of an international obligation.” This article allows for states