INTERNATIONAL LAW LCP4801 EXAMINATION PAPER OCT/NOV 2000
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Course
LCP 4801 (LCP4801)
Institution
University Of South Africa
INTERNATIONAL LAW LCP4801 EXAMINATION PAPER OCT/NOV 2000
QUESTION 1
(a) List the differences between public international law and municipal law (5)
Municipal law Public International law
1. 1.
(b) Define ius cogens and explain the effect of this concept on the validity of a tr...
international law lcp4801 examination paper octnov 2000
list the differences between public international law and municipal law
define ius cogens and explain the effect of this concept on the valid
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LCP 4801 (LCP4801)
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INTERNATIONAL LAW LCP4801
EXAMINATION PAPER OCT/NOV
2000
QUESTION 1
(a) List the differences between public international law and municipal law (5)
Municipal law Public International law
Full legislative body. The legislature No legislative body with the power to
enact rules of law which the citizens enact rules binding on all states.
must obey Rules are to be found in agreements
between states (treaties) and in
international custom
Full executive machinery for No executive authority with a police
enforcement of judgments and police force at its disposal to enforce the
force to enforce the law rules - poorly developed sanctions
Fully developed judiciary There is no court to enforce PIL
1. Precedent system applies 1. No precedent system
2. Nemo judex in sua causa 2. State judge in own case
Subjects are individuals Subjects are generally states
(b) Define ius cogens and explain the effect of this concept on the validity of a
treaty (10)
Ius cogens is defined in the Vienna Treaty Convention as
a) an obligatory rule (of)
b) general international law (which is)
c) accepted and recognised by the community of states as a whole (as)
d) a rule from which no deviation is allowed (and)
e) which can be altered only by another norm or rule of the same kind
States cannot “contract out” of ius cogens - it is absolutely binding on all
states whether they like it or not. The only rule more of less generally
accepted as ius cogens is the prohibition on the use of force. A treaty which
conflicts with an existing norm of ius cogens is void from the outset. No
treaty comes into existence. However, if a treaty is already in existing and
a new rule of ius cogens then develop, the treaty isn’t void - performance
which has already been rendered is perfectly valid, but there can be no
further performance.
(c) Briefly discuss the right of a foreign sovereign state to claim immunity before a
South African court in a case arising from a commercial transaction into which
it has entered (10)
A foreign state will not be immune from the jurisdiction of a South African
court in proceedings relating to ‘commercial transactions’ entered into by a
state. However, states are immune as far as governmental public activities
(acta iure imperii) are concerned. The general rule in the Foreign States
Immunities Act (FDIA) is that one uses the nature of the act rather than its
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purpose to determine whether or not it can be classified as imperii. For
example, if a foreign state concludes a contract with a SA
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Company to supply army boots and then refuses to pay, will the foreign
state be able to raise immunity in a subsequent action. If we apply the
nature of the contract we will find that we are dealing with a normal
contract of sale, which will not attract immunity, but if we apply the
purpose of the contract, things will be different. In this case we have to ask
what purpose the boots serve. Without boots the army cannot function, and
the army is there for the defence of the state. The contract of sale would
therefore be classified as a governmental act which will attract immunity.
The American Case Victory Transport Inc laid down certain acts which can be
regarded as imperii.
a) internal administrative acts
b) legislative acts
c) acts related to the armed forces
d) acts related to diplomatic activity
e) public loans
The trend in Public International law is however, to restrict immunity where
possible.
QUESTION 2
Although there is no formal agreement on the use of water resources between South
Africa and Lesotho, Lesotho has for 30 years allowed South Africa to draw water from
a dam in Lesotho.
After a democratic general election, a new government comes to power in Lesotho.
This government immediately closes down the pumping station, cutting off the supply
of water to South Africa. Dr Zuma, the South African Minister of Foreign Affairs,
delivers a formal protest to her Lesotho counterpart. The Lesotho government
acknowledges that it is legally bound to re-open the pumping station and does so
immediately.
One month later, however, the Lesotho government again closes the pumping station
declaring that in the light of the unequal distribution of wealth in Southern Africa, it is
no longer prepared to allow South Africa access to cheap water.
South Africa claims that Lesotho’s actions amount to a violation of a norm of public
international law.
Discuss fully, using the facts above and relating them to international case law,
whether Lesotho has violated a norm of public international law and what body South
Africa should approach to enforce its claim (20)
For Lesotho to have violated a norm of public international law, the violation
must be based on either a treaty or custom. In the above case there was no
treaty between Lesotho and South Africa. We will therefore have to consider
whether Lesotho violated a custom of public international law. For a custom to
arise two requirements must be met, usus and opinio iuris. In the Asylum case
usus is defined as “constant and uniform usage”. In terms of the North Sea
Continental Shelf cases a state must feel that if it did not comply with the usage it
would be committing an international “wrong”, it would be breaching public
international law. Following a rule simply because you feel that it is morally
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correct, is not sufficient. This case also states that universal acceptance is not
necessary.
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