LCP4801 - International Law: Questions With Objective
Solutions
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.
Solutions
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.
