LCP4801 - International Law Question
and Answers with 100%Researched
Rationales.
Diplomatic protection - 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. - 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. - 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 - 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) - The negotiating and signing of all international agreements is the
responsibility
of the national executive.
, Section 231(2) - 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) - 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) - The Republic is bound by international agreements which were
binding on the
Republic when the Constitution took eff ect.
self-executing treaty - [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 - (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) - 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 - 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
and Answers with 100%Researched
Rationales.
Diplomatic protection - 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. - 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. - 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 - 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) - The negotiating and signing of all international agreements is the
responsibility
of the national executive.
, Section 231(2) - 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) - 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) - The Republic is bound by international agreements which were
binding on the
Republic when the Constitution took eff ect.
self-executing treaty - [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 - (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) - 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 - 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
