LCP4804 EXAM PACK 2023 QUESTIONS WITH LATEST ANSWERS

LCP4804 EXAM PACK 2023 QUESTIONS WITH LATEST ANSWERS. There are two requirements which must be present for the formation of a customary international law rule: jus cogens and opinio juris. False - The requirements are usus and opinio iuris , Jus cogens is a norm from which no derogation is permitted The United Nations may exercise diplomatic protection over its agents and it may institute an action on their behalf. 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. Where a foreigner violates the rights of a state’s national outside that state, the state of the national may claim jurisdiction over such foreigner on the basis of the principle of nationality. False -The basis of nationality is applied where the alleged perpetrator is a national of the state This scenario depicts the basis of jurisdiction known as passive 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. International law lOMoARcPSD| 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 The ICTY is a permanent international criminal tribunal which functions as the judicial arm of the United Nations. False -The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by Security Council Resolution 827/1993. It was set up in terms of article 41 of the UN Charter. It is an ad hoc Tribunal established for temporary specific purposes In order for an entity to qualify as a state, it must have a permanent population amongst other requirements). True: The requirements are listed in the Montevideo Convention. If a state is recommended for UN membership by the Security Council, the General Assembly must decide on admission of that state by a simple majority of the voting members. True: In terms of article 38(1)(d) of the ICJ Statute, international conventions are subsidiary means for the determination of the rules of law. False: Article 38(1)(d) of the ICJ Statute lists judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. A jus cogens norm of international law is a peremptory norm from which no derogation is permitted. True, see Article 53 of the Vienna Convention. Article 4(2) of the UN Charter prohibits the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations. False: Article 2(4) deals with the prohibition of the threat or use of force against the territorial integrity of another state; whilst Article 4(2) deals with the role of the General Assembly and the Security Council in the admission of a state into the United Nations. In terms of the 2001 ILC Draft Articles on the Responsibility of States for internationally wrongful acts, necessity may never be invoked as a ground for precluding wrongfulness. lOMoARcPSD| False: In terms of Article 25(1) of the Draft Articles provides that necessity may only be invoked as a ground for precluding wrongfulness in the act complained of was the only way for the state to safeguard an essential interest against a grave and imminent peril, and if the act did not seriously impair an essential interest of the state, or of the international community as a whole. In the Bosnia Genocide case the ICJ held that for the conduct of private persons to be attributable to the state, that conduct must be based on general instructions given to such persons by the state. True: See para 406 of the ICJ judgment – “a State’s responsibility can be incurred for acts committed by persons or groups of persons — neither State organs nor to be equated with such organs — only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed”. In terms of article 31 of the 2001 ILC Draft Articles on the Responsibility of States foInternationally Wrongful Acts, the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. True In terms of international law, a state is under a legal obligation to exercise diplomatic protection on behalf of a national who has been injured abroad. False: The state has a right, rather than a duty. The ICJ has competence to decide contentious cases between states. True In terms of the UN Charter, the General Assembly of the United Nations has a primary responsibility for the maintenance of international peace and security. False: Article 24(1) of the UN Charter confers that responsibility on the UNSC. The right of state to act in self-defence is provided for in article 51 of the UN Charter. True lOMoARcPSD| The principle of territoriality entails that a state has jurisdiction over acts committed in its territory. True: The International Criminal Court has universal jurisdiction. False: The Rome Statute does not provide for universal jurisdiction. In terms of the 1981 Foreign States Immunities Act, foreign states enjoy absolute immunity from the jurisdiction of South African courts. False LONG QUESTIONS INTERNATIONAL LAW AND NATIONAL LAW Write a brief paragraph discussing the differences between international law and national law. [10] In international law there is no legislator, whereas in national law there is a complete legislative process. There is no court to enforce international law, and there is no precedent system either. States are the judges in their own cases. In national law, there is a fully developed judiciary which applies a precedent system, as well as the principle of nemo iudex in sua causa. There is no executive to enforce judgments in international law, whereas in national law there is a complete executive machinery for enforcing judgments. The subjects of international law are generally states and international organisations, whereas in national law they are individuals or legal persons. SOURCES OF INTERNATIONAL LAW 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] S - The study-notes marketplace lOMoARcPSD| 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. 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 Downloaded by Celine De Kock () S - The study-notes marketplace Downloaded by: hannesbosman | Distribution of this document is illegal Want to earn R13,625 per year? S - The study-notes marketplace lOMoARcPSD| 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. STATEHOOD AND REGOGNITION 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. Downloaded by Celine De Kock () S - The study-notes marketplace Downloaded by: hannesbosman | Distribution of this document is illegal Want to earn R13,625 per year? S - The study-notes marketplace lOMoARcPSD| 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.