LCP4801 EXAM PACK.

NTERNATIONAL LAW PAST EXAM QUESTIONS WITH MODEL ANSWERS Question 1: On a recent trip to New York the South African Minister of Foreign Affairs enters into an agreement with representatives from the United States, Canada, Namibia and the United Kingdom on the treatment of illegal immigrants. At the sane time the South Africa Minister of Health is visits Zimbabwe, where she enters into an agreement (without producing full powers) with Zimbabwe’s Minister of Environment Affairs on the protection of the environment. (a) discuss fully, with reference to both the Vienna Convention on the Law of Treaties and the South African Constitution, whether (i) The treaty on the treatment of illegal immigrants will bind South Africa at an international level. This was a straight forward question which required you to apply article 7(2) of the Vienna Convention. Refer to pages 23-25 in the guide. Then decide whether the treaty is binding internationally in terms of the South African Constitution. (Consult section 231(1), 231(2) and 231(3). (8) (ii) The treaty on environmental protection will bind South Africa at an international level. All you had to do here was apply the provisions of article 7(1) of the Vienna Convention. Consult pages 24 of the guide. (7) (b) Assume that the treaty on the treatment of illegal immigrants is binding on South Africa at an international level. Mr Musina, an illegal immigrant from the Democratic Republic of the Congo, approaches a South African court claiming damages in the grounds that the treatment he received at the hands of the South African Police Services was in violation of his rights under the treaty. Write a legal opinion for the Minister of Safety and Security, in which you set out the status of the treaty in terms of the SA Constitution 108 of 1996. (20) The fact that the treaty is binding internationally does not make it effective in, or applicable to, municipal law. Nor does it mean that it can be applied by SA courts. Here you firstly had to determine whether this treaty has legal effect in municipal law. To do this you require a discussion of section 231(4) of the Constitution. You should have found that treaty does not have municipal effect. This does not mean that treaty is no use at all t Mr Musina. Consult page 92 of the guide for the various ways that the unincorporated treaty could be useful to Mr Musina. Note that not all of these ways are useful. For example, there is no relevant legislation and therefore section 233 is probably not going to be too helpful. Question 2: Ms Johanna Mann has a successful sex operation in February 2002. She subsequently applies to the Department of Home Affairs to have the change officially recorded and to change her name to Johann Mann. The department of Home Affairs rejects the application. Ms Mann approaches you, claiming that her rights under the Bill of Rights have been violated. You are familiar with a European Court of Human Rights decision and a German Constitutional Court decision both, which held that refusal to recognise a sex change was a violation of fundamental rights. Explain, in light of the above, the relative weight that A South African court must attach to the decisions of the European Court of Human Rights and the German Constitutional Court in terms of the SA Constitutions. (15) This question involves he interpretation clause in the bill of rights. See activity 2 on page 138 of the guide for guidance on how to answer such questions. Question 3: With reference to recent international and municipal case law, discuss critically the extent to which international law developments are reflected in the South African Diplomatic Privileges and immunities Act 37 of 2001 in terms: - head of state immunity - government official other than heads of state - Immunity of the United Nations, specialised agencies and other international organisations. (25) Please go to the beginning of the tutorial to read the new work to be included. You have been warned to study the tuts as well. Question 4: Mr S Patat, a Portuguese national, owns a profitable farm in SA. As part of a land distribution programme, the South African government nationalises the farm and pays Mr Patat compensation far below the market value for the farm. Mr X is outraged and asks you, his lawyer, if there is anything that can be done to obtain a fair market price. Give a legal opinion on this question, in which you set out: (a) international approaches to the state’s liability to the individual as a result, the nationalisation of property; and (10) (b) How these approaches are reflected in section 25 of the SA Constitution 108 of 1996 the section on nationalisation. (10) 4(a) GA Res 1803 provides for appropriate compensation, in accordance with the rules in force in the state taking such measures, and in accordance with the rules of international law. In the case of a dispute, the municipal law jurisdiction must be exhausted, but on agreement by the states and other parties concerned, arbitration or international adjudication may be employed. This reflects a first world/western standard. GA Res 1803 provides for the nationalisation, expropriation or transfer of ownership of foreign property against the payment of appropriate compensation by the state taking such measures, taking into account its laws and regulations and all relevant and pertinent circumstances. In any controversy, the dispute must be settled under the municipal law of the nationalising state and by its tribunals; unless all the states concerned agree that other peaceful means may be sought. This appears to reflect the Third World standard, but a number of arbitration awards have indicated that the first standard accurately reflects customary international law and that the second is a political rather than a legal, declaration. 4(b) UN Res 1803 (XVII) of 1962 requires appropriate compensation in accordance with municipal and international law. UN res 3281 (XXIX) of 1974 requires appropriate compensation in terms of municipal law and taking into account all pertinent circumstances. The latter includes the benefit the person has already received for the investment, set off against the market value and benefits which have accrued to the nationalising state and the community through the enterprise. There is therefore no universal standard on which there is complete agreement. “Appropriate” compensation does not seem to have any fixed meaning and will depend on the circumstances of each case. It has been held in arbitration awards that the standard of UN Res 3281 (XXIX) does not reflect international law, and only those in terms of UN Res 1803 (XVII) qualify as customary international law. Section 25 of the Constitution incorporates both public purpose/ public interest and compensation in its requirements for expropriation. The fact that it may only occur in terms of a law of general application also takes care of the non-discrimination requirement. With the exception of the international law requirement, this complies with the Res1803 standard. Section 25(3), however, prescribes a number of factors which have to be considered in calculating the amount of compensation. Compared with the ‘benefits theory’, these factors show great similarity to the way Res 3281 is interpreted. On the whole, therefore, Section 25 seems closer to the standard required in Res 3281. But you are free to argue this point and still get credit. Question 5: Match the following cases numbered 1-5 with the following statements numbered a-e. 1. Government of the Republic of Spain v “SS Arantzazu Mendi” 2. Inter Science Research v Republic Popular de Mozambique 3. S v Oosthuizen 4. Republic of Somalia v Woodhouse, Drake and Carey 5. Harksen v President RSA (a) Although a court may take judicial notice of the fact that a state is recognised by South Africa, it should do so only when it is a matter of common knowledge, and not in controversial cases. (b) Where there is any doubt about the statue or government, the court must request a certificate from the department of Foreign Affairs, setting out the position. (c) If the certificate from the Department of Foreign Affairs is unclear, the court may interpret it in the light of common sense, justice and the interests of the executive. (d) In this case, sensitive issues involving other states the performance of foreign affairs rests exclusively with the executive, otherwise there could be conflict between the different branches of government on sensitive issues involving other states. (e) The court may examine the factual circumstance to which the certificate relates and determine for itself the truth or otherwise thereof. Answers: 1d 2b 3a 4c 5e Question 1: Discuss fully, with reference to case law and relevant legislation, the so-called “commercial transaction” exception to the right of a foreign sovereign state to claim immunity before a South African municipal court. (15) Act was adopted to regulate the circumstances under which a state will be able to raise immunity before SA court. The Act is negatively phrased - it starts with the premise that a foreign state is immune from the jurisdiction of a SA court (absolute immunity) except for instances listed in the Act (restricted immunity). A state will not be able to raise immunity before SA court in a number of cases: 1. Waiver 2. Contracts of employment 3. The Act provides a commercial transaction =  Any contract for the supply of goods or services  Any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such loan or other transaction or of any other financial obligation