LCP4801 OCT/NOV
Exam Memo .
LCP4801 - International Law
A treaty is an agreement, whether written or oral, concluded between public international
subjects, with the intention of creating a public international law relationship. Thus, a
treaty concluded via oral agreement qualifies as a treat...
False, the two requirements to be present for a rule of customary international to develop
are:
(1) General practice referred to as usus; and
(2) Accepted as law referred to as opinion juris.
True, the IJC confirmed that the UN may exercise diplomatic protection over its agents
and also institute action on their behalf for injuries suffered in the course of their duties.
True, however crimes over which nationality jurisdiction is exercised depends on whether
the state’s legal system is based on, civil or common law.
False, in S v Banda the court came to the conclusion the declaratory theory was the more
acceptable theory to follow in terms of recognition as a requirement. The proponents of
this theory maintain the act of recognition is not a requirement of statehood.
False, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and
International Criminal Tribunal for Rwanda (ICTR) are ad hoc international criminal
tribunals.
A treaty is an agreement, whether written or oral, concluded between public international
subjects, with the intention of creating a public international law relationship. Thus, a
treaty concluded via oral agreement qualifies as a treaty. However, Dougard J states:
“Although oral agreements between state representatives may create legal obligations for
states, they do not qualify as treaties.”
, The problem with oral agreements is one of proof. The Vienna Convention on the Law of
Treaties (VC) provides in article 3: the fact that it only applies to agreements in writing,
does not affect the legal force of oral agreement(s). Meaning oral agreement are treaties
as they satisfy the requirements of treaties which are: “two competent, consenting parties
that agree to a public international law relationship, that give rise to reciprocal rights and
duties which are governed by international law.”
The only difference between treaties in writing and oral agreements is that oral
agreements cannot be registered as a treaty with the UN secretariat and the oral
agreement is not governed by the VC. This means that the treaty cannot be enforced by
the ICJ. Thus, an oral agreement must be regarded as a treaty.
Section 231 determines whether a treaty binds South Africa (SA) on the international
plain and whether a treaty has legal effect domestically i.e. whether a domestic court can
directly apply such a treaty.
S231(1) Provides who may negotiate and sign treaties. This power is delegated to the
relevant Department of Foreign Affairs or minister in charge of the topic covered by the
treaty.
S231(2) Deals with the process by which a treaty becomes binding for SA on the
international plane. The treaty must be approved by both houses of Parliament i.e. the NA
and NCP, unless it is an agreement referred to under subsection (3) below. Note that this
treaty approval is not adoption of legislation in terms of Section 73 and thus does not
bring the treaty into effect in our national law.
S231(3) Provides that technical, administrative or executive treaties and treaties which
require neither ratification nor accession, will bind SA on the international plane without
approval by Parliament, but must be tabled in the National Assembly (NA) and the
National Council of Provinces (NCP) within reasonable time.
S231(4) Provides that all international agreements (treaties) become law and are
enforceable by municipal courts only after they have been “enacted as a law by national
legislation”. In in other words, the process of a treaty transposing from an international
plane to a domestic level.
It further provides for so-called “self-executing” treaties which automatically acquire
domestic validity without Parliamentary enactment, provided they are not inconsistent
with the Constitution or an Act of Parliament.
Subsections (3) and (4) both provide for acceptations to the procedure set out in
subsections (1) and (2).
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