LCP4801 QUESTIONS AND ANSWERS-UPDATED.

LCP4801 QUESTIONS AND ANSWERS-UPDATED. LCP4801 Past Paper Q & A 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] 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 (AngloNorwegian 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 Q&A by yash0505 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 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. 2. 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 Q&A by yash0505