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LCP4801 Exam questions verified
answers/updated version
LCP4801 – 2017 OCT/NOV exam memo: False, the two requirements to be present for a rule of customary international to develop are: (1) General practice referred to as usus ; and (2) Accepted as law referred to as opinion juris. True, the IJC confirmed that the UN may exercise diplomatic protection over its agents and also institute action on their behalf for injuries suffered in the course of their duties. True, however crimes over which nationality jurisdiction is exercised depends on whether the state’s legal system is based on, civil or common law. False, in S v Banda the court came to the conclusion the declaratory theory was the more acceptable theory to follow in terms of recognition as a requirement. The proponents of this theory maintain the act of recognition is not a requirement of statehood. False, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) are ad hoc international criminal tribunals. A treaty is an agreement, whether written or oral, concluded between public international subjects, with the intention of creating a public international law relationship. Thus, a treaty concluded via oral agreement qualifies as a treaty. However, Dougard J states: “Although oral agreements between state representatives may create legal obligations for states, they do not qualify as treaties.”
The problem with oral agreements is one of proof. The Vienna Convention on the Law of Treaties (VC) provides in article 3: the fact that it only applies to agreements in writing, does not affect the legal force of oral agreement(s). Meaning oral agreement are treaties as they satisfy the requirements of treaties which are: “two competent, consenting parties that agree to a public international law relationship, that give rise to reciprocal rights and duties which are governed by international law.” The only difference between treaties in writing and oral agreements is that oral agreements cannot be registered as a treaty with the UN secretariat and the oral agreement is not governed by the VC. This means that the treaty cannot be enforced by the ICJ. Thus, an oral agreement must be regarded as a treaty. Section 231 determines whether a treaty binds South Africa (SA) on the international plain and whether a treaty has legal effect domestically i.e. whether a domestic court can directly apply such a treaty. S231(1) Provides who may negotiate and sign treaties. This power is delegated to the relevant Department of Foreign Affairs or minister in charge of the topic covered by the treaty. S231(2) Deals with the process by which a treaty becomes binding for SA on the international plane. The treaty must be approved by both houses of Parliament i.e. the NA and NCP, unless it is an agreement referred to under subsection (3) below. Note that this treaty approval is not adoption of legislation in terms of Section 73 and thus does not bring the treaty into effect in our national law. S231(3) Provides that technical, administrative or executive treaties and treaties which require neither ratification nor accession, will bind SA on the international plane without approval by Parliament, but must be tabled in the National Assembly (NA) and the National Council of Provinces (NCP) within reasonable time. S231(4) Provides that all international agreements (treaties) become law and are enforceable by municipal courts only after they have been “enacted as a law by national legislation”. In in other words, the process of a treaty transposing from an international plane to a domestic level. It further provides for so-called “self-executing” treaties which automatically acquire domestic validity without Parliamentary enactment, provided they are not inconsistent with the Constitution or an Act of Parliament. Subsections (3) and (4) both provide for acceptations to the procedure set out in subsections (1) and (2).
(1) General: The accepted approach in international law and in terms of the United Nations Charter regarding international peace and security is set out in article 2(4) of the United Nations Charter:
- All members shall refrain in their relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the purposes of the United Nations. (2) Reprisals: In terms if lawful reprisals, it requires a:
- Prior unlawful act against the claimant state
- By the target state
- A failed attempt to secure redress by other means; and
- A proportionate response. (W) acted unlawfully by kidnapping two soldiers from state (Y), (Y) retaliated by bombarding (W) without the attempting to find a peaceful solution as per requirement (3) above. The 1970 Declaration on Principles of International Law declares that: “states have a duty to refrain from acts of reprisal involving the use of force”. I would however say that negotiating the return of (y)’s soldiers would have been proportionate/ better solution to bombarding (X)’s border. In context of the above (Y)’s reasoning for the bombarding of (X)’s borders do not justify its actions and is thus unlawful. (3) Self-defence: Article 51 of the UN Charter allows for the individual/collective self-defence of its Members under certain conditions namely:
- An armed attack must occur;
- The purpose for the use of force must be clear i.e. to defend oneself;
- The force exercised in self-defence must be proportioned to the posed threat; and
- The act of exercising self-defence as a right, is valid until the Security Council has taken the necessary measures to maintain international peace and security. The measures taken by the member must immediately be reported to the UN Security Council. Article 51 poses a problem as it does not clearly state whether it allows for self-defence after an armed attack or in this case, whether anticipatory self-defence is permissible. This right has existed before 1945 and its customary-law elements were somewhat wider in scope. It mentioned that the pre-Charter self-defence had to be an immediate and necessary response to a situation threatening a state’s security and vital intersts. Including the above proportionality, more importantly the right to self-defence included anticipatory self-defence and intervention to protect nationals. Today there is a disagreement regarding the concept of self-defence. On the one side people argue that article 51 is complete as it is and on the other hand people see the phrase “inherent right” provided in the article as proof of the customary international law (pre-Charter law) approach to self-defence continues. The ICJ in the Nicaragua case
supported this customary nature of the “inherent right”, and thus the use or threat of nuclear weapons was supported. In the light of the above context the same situation occurs in regard to anticipatory self- defence. There are those who argue that Article 51 only permits self-defence if an armed attack occurs (strict interpretation) and other who discern this idea and accepts anticipatory self-defence as part and parcel of the “inherent right” in Article 51. In the Caroline case the interpretation restricted self-defence to “ an attack that is instant, overwhelming, leaving no choice of means, and no moment for deliberation .” Although they did not make it clear in the Nicaragua case whether self-defence to an immanent attack is lawful, in the Armed activities case the court made it clear that Article 51 may only be interpreted within its (strict) confines however, the less restrictive interpretation was also confirmed in the 2004 High Level Panel Report on Threats, Challenges and Change, stating that a threatened state can take military action under article 51 as long as the threat is imminent and if no other means would deflect is and that is proportionate. In terms of anticipatory self-defence, the consensus in the High Level Panel Report was that a good argument, supported by credible evidence, point to a need for preventive military action. The case must be put before the Security council, which can then authorise such action if it deems it fit. Otherwise if this fails other strategies would be pursued. The above case reminds me of the Entebbe incident in 1976 where a plain was hijacked and diverted to Uganda in order to hold the Jewish passenger’s hostage for the release of 50 Palestine terrorists detained in various countries. Ugandan authorities not only failed to take the necessary action against the hijackers but even assisted them. Israeli soldiers flew in and rescued the Jews however Israeli and Ugandan soldiers where killed. Israel’s justification was that they evoked their right to self-defence under international law by using force to protect their nationals from mortal danger and Uganda had failed to protect foreign nationals on its territory. In the light of the above case, the bombardment of (W) could be argued as follows by (y). If (Y) can show that they had evoked the right to self-defence by using force to protect their nationals and provide a good argument, supported by credible evidence that no other means would secure their nationals their actions may be justified before the Security Council.
In 1975 the terra nullius issue came before the ICJ relating to the granting of independence to Western Sahara by Spain. Morocco and Mauritania argued that Western Sahara belonged to them at the time Spain colonised the territory, which Spain denied. An advisory opinion was sought from the IJC on whether, at the time Spain colonised Western Sahara, it belonged to no one – terra nullius. The IJC rejected the terra nullius argument and held that Western Sahara, at the time, was inhabited by tribes, politically organised and under chiefs competent to represent them. Spain did not occupy the territory terra nullius, it proclaimed that they had made agreements with the chiefs of the tribes, taking the territory under their protection. In terms of agreements between colonial power and local rulers over territories was not effected by occupation of a terra nullius by original title but through agreements concluded with local rulers. Such agreements were not considered as occupation of terra nullius but rather some kind of derivative roots of title other than original titles obtained by occupation terra nullius. The IJC further confirmed that because of the fictitious nature of “occupation” in terms of the Berlin Act, there is no terra nullius, there can be no occupation in the true sense of the word. If it can be established that the stroke of land is terra nullius, it can be occupied by either Egypt or Sudan. (1) Immunity from state jurisdiction: International law may in certain instances prevent a court from exercising criminal or civil jurisdiction over foreign states and their representatives through the principle of immunity. Under this principle, international law will prohibit a state from exercising jurisdiction over a matter that would ordinarily fall within its jurisdiction, either based on identity of the person or entity involved (e.g. Head of state) or the nature of the conduct in question. Immunities spring from two concerns of international law. The first being to ensure the smooth conduct if international relations, which requires that ‘states are able to negotiate with each other freely and that those state agents charged with the conduct of such activities should be able to perform their functions without harassment by other states’. This serves as the predominant justification for personal or diplomatic immunity
which provides inviolability for the person and premises of a foreign State’s representatives and immunities from the exercise of jurisdiction over those representatives. The second source of immunities is the principle of state sovereignty, in terms of which all states are equals and no state may exercise jurisdiction over another state’s conduct. Immunities of this sort (functional immunities) provides that a court may not exert jurisdiction over the “sovereign” or his or her property when he or she is in your territory as this is regarded as an offence to sovereignty. (2) Two forms of immunity: personal and functional. Under international law, representatives of foreign states may be beneficiaries of personal immunity or functional immunity, or both. Personal immunity (immunity ratione personae) or diplomatic immunity provides: (1) Complete immunity of the person of certain officeholders while they carry out important representative functions. (2) Absolute personal immunity, covering both private and public acts committed by officials (even those committed prior to their taking office), however, 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 and mainly the 1961 Vienna Convention on Diplomatic Relations. In terms of the Arrest Warrant decision, 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’. In addition to this, various treaties extend similar immunities to representatives of international organisations. Functional immunity relates to conduct carried out on behalf of a states. It is more commonly used in civil cases. Functional immunity, unlike personal immunity, does not attach to all conduct performed by state officials it only applies to conduct carried out within the official capacity. Unlike personal immunity, functional immunity is also permanent and does not lapse when the official ceases to hold office. As a result, any person acting on behalf of a state would also in principle be able to claim immunity from criminal prosecutions related to such conduct. (3) Immunity of international crimes: It is widely accepted that immunity ratione materiae (functional immunity) does not apply to international crimes, whether prosecuted by international or domestic courts. The International Military Tribunal at Nuremberg established immunity does not apply to ‘acts condemned as criminal by international law’. In the Arrest Warrant case, the ICJ held that Belgium had ‘failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign
Case (decided by the French Court of Cassation) and Statutes of International Criminal Court and Tribunals.) The Court held that there was no exception in customary international law to the absolute immunity of an incumbent Foreign Minister.” It (the Court) has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having committed war crimes or crimes against humanity. The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable. It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.”
- International Conventions give jurisdiction to national Courts over various crimes and, at times, requires them to exercise this jurisdiction [for example, the Torture Convention]. This requirement does not affect the immunities given to Foreign Ministers under international law. Despite international conventions establishing domestic jurisdiction, Foreign Ministers are immune before foreign courts.
- Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed. “While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility….”
- The Court set out four situations where an incumbent or former Foreign Minister could be prosecuted: a) Prosecution in his own country according to the domestic law (the international law of immunity is not recognized before a person’s national courts); b) If his country waives his immunity, then prosecution before a foreign court; c) Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts for private acts committed during his tenure as Foreign Minister; and for all acts committed before or after his tenure in office; and d) Prosecution before an international criminal body, with the necessary jurisdiction (for example the ICC).
- The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s obligations towards Congo, “in that it failed to respect the immunity of that Minister and, more particularly infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him under international law.” It did not matter that Yerodia was never arrested. “Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his duties, the mere international circulation of the warrant… could have resulted, in particular, in his arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a visa to go to two countries, [apparently] learned that he ran the risk of
being arrested as a result of the arrest warrant issued against him by Belgium”… the arrest warrant ‘sometimes forced Minister Yerodia to travel by roundabout routes”‘. Mr Evil had raised diplomatic immunity however as shown above he only enjoys complete immunity while he carried out important representative functions and absolute personal immunity, covering both private and public acts committed by him (even those committed prior to their taking office), however, it only applies in so far as the person holds the office in question. In terms of South Africa’s own ICC Act appears to take the position that personal immunity does not apply to the prosecution of international crimes in South African courts. This puts SA at risk of violating the sovereign rights of another state if it chose to evoke section 4(2)(a) of the ICC Act and would go against presumptions made in the Constitution that support international law. However, according to customary international law, personal immunity is contrary to the spirit, purport and object of the SA Constitution. The aim of International Humanitarian Law (IHL) is to humanise warfare by limiting the human suffering caused by armed conflict. International humanitarian law prohibits the use of means and methods of warfare that in their nature cause superfluous injury or unnecessary suffering. For international armed conflicts, a number of instruments, including the Hague Regulations, Additional Protocol I and the Rome Statute of the International Criminal Court, prohibit the use of weapons and means and methods of warfare that in their nature cause superfluous injury or unnecessary suffering. It is debatable whether the above-mentioned prohibition renders certain weapons illegal per se, or whether it is only a particular use of the weapons that is prohibited. In practice, however, one can point to certain examples of weapons that have been cited as causing unnecessary suffering.
A state (C) has a right to protect its nationals abroad who have been injured by the actions of the foreign state (B). 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 (C). The state (C) 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 interesting question is whether South African law (State C) imposes such an obligation on the South African government. In this context we shall consider the cases of Kaunda, Van Zyl and Von Abo. The facts in Kaunda v President of the Republic of South Africa 2005 (4) SA (CC) may be summarised briefl y as follows: a number of South Africans had been arrested in Zimbabwe and Equatorial Guinea in connection with charges relating to mercenary activities and plotting a coup against the President of the Equatorial Guinea. Those arrested in Zimbabwe feared that they would be extradited to Equatorial Guinea. All the Applicants claimed that they would not receive a fair trial in Equatorial Guinea. Furthermore, they contended that, if they were convicted in Equatorial Guinea, they would be sentenced to death. They claimed, therefore, that the South African government was under an obligation to offer them diplomatic protection. The court dismissed the application. The majority decision, written by Chaskalson CJ (as he was then known), recognised that international law did not oblige a state to provide diplomatic protection, but in terms of the South African Constitution, there was at least some obligation on the part of the government to provide protection to its nationals abroad. The court began by asserting that a request to the South African government for diplomatic protection was unlikely to be refused if there had been a gross violation of international human rights norms, and the evidence to that effect was clear. Should a request for diplomatic protection ever be refused” the decision would be justiciable, and a court could order the government to take appropriate action”. The court also noted that the assertion of diplomatic protection was” essentially a function of the executive” with which the “courts are ill equipped to deal”. However, if the executive were to refuse to consider a legitimate request, or if it were to deal with it in bad faith or irrationally, the court could intervene. In other words, while the executive has a broad discretion when conducting foreign affairs, the courts can review such decisions on the grounds of, for example, irrationality and bad faith. In a concurring opinion, Ngcobo J, examined, inter alia, section 3 (the right to a common South African citizenship) and section 7 which provides that: (1) The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
Ngcobo J concluded that “diplomatic protection is a benefit within the meaning of section 3(2)(a). It follows therefore that sections 3(2)(a) and 7(2) must be read as imposing a constitutional duty on the Government to ensure that all South African nationals abroad enjoy the benefits of public protection. The proposition that the Government has no constitutional duty in this regard must be rejected. Such a proposition is inconsistent with the Government’s own declared policy and acknowledged constitutional duty”. In Van Zyl v Government of the RSA 2008 (3) SA 294 (SCA) the applicants requested the South African government to extend diplomatic protection to them in their dispute with the government of the Kingdom of Lesotho. The dispute related to expropriation of the applicants’ mining leases, mining rights and tributing agreements without compensation being paid to them. Ultimately, the application was dismissed. The court pointed out that neither international law, nor the Constitution recognised the right to diplomatic protection. The court distinguished the case from Kaunda in that the latter concerned gross human right violations, while in the Van Zyl case the applicants had been expropriated and international law did not recognise the protection of property as an international human right. In Von Abo v Government of the RSA 2009 (2) SA 526 (T) the applicant was a South African farmer in Zimbabwe. Zimbabwe had violated his rights by destroying his property interests in many Zimbabwean farms as part of a governmental scheme of expropriation. Von Abo was not compensated, and he had exhausted all local remedies. Von Abo requested the South African government to afford him diplomatic protection vis-à-vis Zimbabwe. The applicant claimed that he had a right to such protection in terms of the South African Constitution. Relying on the judgment in Kaunda, the court in Von Abo found that there need not be an actual refusal on the part of government to grant diplomatic protection before a court would intervene. The court stated that, in an appropriate case, a court could also come to the assistance of the aggrieved national where government ‘fails to respond appropriately’ or ‘deals with the matter in bad faith or irrationally’. The court relied on, inter alia, the judgment in Kaunda to conclude that the state had a duty to provide assistance to the applicant. The courts went back and forth however ultimately it was held by the SCA that: It is a foreign concept for a state to accept liability in terms of its municipal law for its own nationals, for the wrongdoings of another state, committed by that state in another country in regard to the same individual. The only breach that could have occurred in the present case is that the [government] failed to comply with their duty to act appropriately to his request for diplomatic protection. The constitutional breach in this case, if there was one, could only have been a failure to have responded appropriately to the respondent’s request for diplomatic protection. For the present, the individual’s right to diplomatic protection remains a moot point.
diplomatic immunity, the principle of sovereignty and territorial sovereignty, and principles of trade. d) African kingdoms where not seen as international legal personalities, although the Vienna Convention on the Law of Treaties existed, the principles set out was ignored and thus the Kingdoms were obtained by force, deceit or ignorance. European powers manipulated the law of treaties in their interactions with African Chiefs and Kingdoms. Many of the African chiefs were made to sign documents that they did not understand or were forced to sign such documents under duress, making such treaties invalid. “Treaties of protection” was a standard means of warding off the designs of other colonialists, keeping the control in the hands of the occupying colonialist and ensuring the security of their “bounty”. These “treaties” gave some form of security against the hostile neighbouring colonialist but meant the loss of sovereignty for the African Kings. Step 3: You give us your position, or more like a summary on why you think that international law should not be seen from a Eurocentric perspective. a) The Role of the UN in the settlement of disputes:
- 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.
- When exercising this responsibility, the Security Council must act within the objectives and principles of the UN.
- The Security Council may decide on measures such as sanctions, diplomatic negotiations and severance of diplomatic relations in the exercise of its powers. b) The prohibition of the use of force under international law:
- There is a prohibition of the use of force under international law.
- There are 2 exceptions to this rule: o where there is a threat to international peace and security, the Security Council may authorise the use of collective force under chapter VII of the UN Charter or a regional force in terms of chapter VII of the UN Charter (e.g. the case of Libya) to use force and o where a state acts in self-defence under article 51 of the UN Charter. (“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.”)
- Ajubaria must be able to prove these two points, in particular self-defence.
- It is not clear whether Article 51 allows anticipatory self-defence thus whether inherent right indicates that Art 51 has preserved the pre-Charter customary law definition of the right to self-defence, which would include the right to launch a pre- emptive strike.
- Under customary international law the right to use force in self-defence was justified if the need for it was instant, overwhelming and immediate, and there was no viable alternative action. c) State liability under international law:
- There are 2 types of state liability: o Direct liabilities: A state is directly liable when it (obviously acting through its agents) violates an international law obligation it owes to another state. o Indirect liabilities: A state will be found to be indirectly liable, if: ▪ the state injures the person or property of a foreign national within the state’s territory; or ▪ the state does not itself act in the positive sense, but fails to prevent the harmful act, or fails to minimise the harm done to the “victim”.
- In principle, there is no difference in the result of both direct and indirect liability.
- To illustrate this let us look at the Tehran Hostages case. o Facts: ▪ Iranian students stormed the US embassy in Tehran and took a number of diplomats and civilians from various nations hostage.
- Iran cannot be held liable for the private actions of its citizens.
- The principle of territoriality. a) The state has jurisdiction over all acts (offending conduct) and people within its jurisdiction(territory).
- The principle of nationality/active personality. a) The court of a particular state will exercise jurisdiction over a matter where the perpetrator is its national; even when the offence took place abroad.
- The principle of passive personality.
a) The nationality of the victim is central in this case. Here the court of a state will exercise jurisdiction over a matter because the victim of the offending conduct is a national of that particular state; even where the offence took place abroad.
- The protective principle (state protection). a) A state has jurisdiction over foreigners who perform an act outside the state which endangers the safety of the state.
- The effects principle. a) A state has jurisdiction with respect to conduct outside its territory that has or is intended to have substantial effect within its territory. i) Subjective territoriality: Crime commenced within the state and completed in a foreign state. ii) Objective territoriality: Crime commenced within foreign state and completed within state.
- The principle of universality (universal jurisdiction). a) Here the state that eventually prosecutes the offender has no causal link with the crime or the accused (or even the victim), save that the nature of the acts complained of is so dreadful that it is an affront to all of humanity, and the state proceeds with prosecution as an agent of humankind. The Perpetrator is regarded as an enemy of humankind as a whole (hostis humani generis). Prosecution of the crime is open to any state. Mauritius: Gigaba is passing through Mauritius. Mauritius can claim jurisdiction over the possession of cannabis. Mauritius has no other connecting link to either the crime or the victims. However, Mauritius might be able to claim universal jurisdiction over Gigaba in relation to one crime, that of kidnap of schoolgirls to use as sex slaves. If the violence is characterised as a non-international armed conflict (NIAC) (the so-called civil war), then the crime committed would be a war crime. If, however, the violence does not meet the threshold of NIAC, then the offending conduct would be classified as a crime against humanity. In either of these cases, the crime committed would fall within the class of crimes for which any state as an agent of all humankind can exercise universal jurisdiction. Republic of Mpuluzi: Territoriality – The crimes of abduction of schoolgirls for use as sex slaves occurred on the territory of Mpuluzi. So did the crime of bombing the embassy which killed 44 people; and the launch of the rockets that pummelled the state of Otse. All these are connecting factors that entitle the state of Mpuluzi to claim territorial jurisdiction over Gigaba.
