LCP4801
INTERNATIONAL LAW
PORTFOLIO
MEMO/GUIDELINE
SEMESTER 2 –
OCTOBER/ NOVEMBER
UNISA – 2022
24 OCTOBER 2022
Disclaimer
Extreme care has been used by our Tutors to draft this document, however the contents are provided “as is” without any representations
or warranties, express or implied. This document is to be used for comparison, research and reference purposes ONLY. No part of this
document may be reproduced, resold or transmitted in any form or by any means without prior written permission from the Author. –
LLB EXAMPACKS & TUTORIALS.
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell: 084 591 8661 Email:
Fax: 086 096 5452 www.llbexampacksandtutorials.co.za
, QUESTION 1
Critically discuss, through an analysis of South African case law, whether there
is an obligation on the South African government to offer diplomatic protection
to its nationals abroad who have been injured by the actions of a foreign state.
[25]
Despite the general rule that a state is sovereign in its territory, there are certain
minimum standards which a state must meet in its conduct towards foreign nationals
present therein. There are two tests which may be used to test whether the conduct
of a state towards a foreigner is legally appropriate. The minimum national standard,
supported by third world states, a state is expected that the foreigner be treated on
par with its own nationals.1
In terms of the international minimum standard, a foreigner must be treated as a
reasonable man would expect to be treated in a civilised state. This means that the
international minimum standard may accord to foreigners a higher standard of
treatment that that afforded to nationals (if that state‘s national standard is lower than
the international one). In such a case, it may very well be that State B‘s conduct would
be found legally wanting.2
The Roberts Claim (US v Mexico) arose on the basis of facts, some of which are
comparable to those of the present case. (An American was kept in a Mexican jail in
inhumane conditions). The tribunal stated that aliens must be treated in accordance
with ordinary standards of civilisation. 3
Thus it may be said that the treatment afforded to foreigners must comply with
minimum international standards, as such standards may be gleaned from
international human rights instruments and customary international law. For example,
those provisions of the Universal Declaration of Human Rights which have become
part of customary international law, will form part of the international standard for the
1 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
2 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
3 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
INTERNATIONAL LAW
PORTFOLIO
MEMO/GUIDELINE
SEMESTER 2 –
OCTOBER/ NOVEMBER
UNISA – 2022
24 OCTOBER 2022
Disclaimer
Extreme care has been used by our Tutors to draft this document, however the contents are provided “as is” without any representations
or warranties, express or implied. This document is to be used for comparison, research and reference purposes ONLY. No part of this
document may be reproduced, resold or transmitted in any form or by any means without prior written permission from the Author. –
LLB EXAMPACKS & TUTORIALS.
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell: 084 591 8661 Email:
Fax: 086 096 5452 www.llbexampacksandtutorials.co.za
, QUESTION 1
Critically discuss, through an analysis of South African case law, whether there
is an obligation on the South African government to offer diplomatic protection
to its nationals abroad who have been injured by the actions of a foreign state.
[25]
Despite the general rule that a state is sovereign in its territory, there are certain
minimum standards which a state must meet in its conduct towards foreign nationals
present therein. There are two tests which may be used to test whether the conduct
of a state towards a foreigner is legally appropriate. The minimum national standard,
supported by third world states, a state is expected that the foreigner be treated on
par with its own nationals.1
In terms of the international minimum standard, a foreigner must be treated as a
reasonable man would expect to be treated in a civilised state. This means that the
international minimum standard may accord to foreigners a higher standard of
treatment that that afforded to nationals (if that state‘s national standard is lower than
the international one). In such a case, it may very well be that State B‘s conduct would
be found legally wanting.2
The Roberts Claim (US v Mexico) arose on the basis of facts, some of which are
comparable to those of the present case. (An American was kept in a Mexican jail in
inhumane conditions). The tribunal stated that aliens must be treated in accordance
with ordinary standards of civilisation. 3
Thus it may be said that the treatment afforded to foreigners must comply with
minimum international standards, as such standards may be gleaned from
international human rights instruments and customary international law. For example,
those provisions of the Universal Declaration of Human Rights which have become
part of customary international law, will form part of the international standard for the
1 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
2 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
3 Strydom H (ed) (2016) International Law (Oxford University Press) 272.
