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LCP4801 International Law Summary Notes Q and A Pack 2
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LCP4801 International Law Summary Notes Q and A Pack 2
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INTERNATIONAL LAW PAST EXAM QUESTIONS WITH MODEL ANSWERSQuestion 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
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