Exam (elaborations)
LCP4801-️2023️ FULL EXAMPACK INTERNATIONAL LAW REVISION PREPARATION
- Institution
- University Of South Africa (Unisa)
LCP4801-️2023️ FULL EXAMPACK INTERNATIONAL LAW REVISION PREPARATION
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By: xungusk • 8 months ago
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Question 1Four states (A, B, C and D) conclude a treaty regulating their trade relations.
State A enters a reservation to one of the articles of the treaty. The reservation is not
forbidden by the provisions of the treaty and it does not contradict its object and
purpose. State B does not respond to the reservation, while states D and C object to the
reservation. With reference to relevant authority, explain the consequences of A's
reservation to the operation of the treaty between the parties. (15 marks.)
Reservations to treaties are governed by articles 19 to 23 of the Vienna
Convention on the Law of Treaties, 1969
Let us have a look at what the relevant provisions of these articles contain:
Answer:
Definition of reservation: A reservation is an offer by the reserving slate to the other
parties to a multilateral treaty, proposing that the agreement between them will have a
certain content
Article 19.
Formulation of reservations.
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
• The treaty forbids reservations
• The treaty only allows certain reservations
• The reservation proposed is contrary to the object and purpose of the treaty.
The General rule is that all treaties can be accepted subject to reservations. If the treaty
is silent on the question of reservations it is assumed reservations are allowed.
Parties to a multilateral treaty may accept or reject the reservation. Failure to object will
be seen as tacit consent. (As is the case where the party does not respond to the
reservation)
A state, which objects to a reservation, may do one of 2 things.
1. Object to the reservation but not to the operation of the treaty, or
2. Object to the reservation and to the treaty coming into operation.
In the first case the treaty will operate minus the offending clause and in the second
case no treaty will operate between the states.
,Effect of reservation on a multilateral treaty:
Obligations between states accepting the reservation and the reserving state:
• Acceptance may be express or tacit.
• The entire treaty applies between the parties.
• But the provision in the original treaty to which the reservation was entered will be
replaced by the provisions in the reservation. E.g. if states A, B and C accept a
reservation entered by D, the treaty will apply normally between A, B and C. it is
only the relationships between D and the other states which are affected by the
reservation.
Obligations between states rejecting the reservation and the reserving state:
• Rejection must be express.
• The reservation doesn't come into operation between the rejecting and the
rejecting state - there is no consensus.
• But the clause to which the reservation is entered also cannot apply and is
removed from the treaty for those parties.
• The rest of the treaty applies between the parties. If a state rejects the reservation
and the treaty coming into operation, the treaty will not operate between the 2
states.
Procedure regarding reservations.
1. A reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the contracting States
and other States entitled to become parties to the treaty.
Application
If a state does not object to a reservation (within 12 months of having been informed of
the reservation, or within 12 months of expressing consent to be bound by the treaty) , it
will be deemed to have consented to the reservation.
State B therefore is deemed to have tacitly accepted the reservation. States D and C
expressly object to the reservation. We can assume they have objected to the reservation
only, and not to the treaty coming into operation as a whole.
As a result:
- As between A and B: the entire treaty operates between them, but the provisions of the
original treaty to which a reservation has been entered to will be replaced by the
provisions of the reservation.
- As between A and D: The reservation does not come into operation between the two
states, since there is no consensus. Likewise, the provision of the original treaty to which
the reservation was entered, does not come into operation between them, because there
,is no consensus. Therefore, the treaty will apply between them minus the provision to
which A entered a reservation. The created "gap" will be governed by applicable
principles of customary international law.
- As between A and C: same as between A and D..
- As between B, C and D: the treaty in its original form will apply, since the treaty
obligations between all non-reserving parties remain unaffected by the reservation.
Question 2.
It is said that public international law has a dual function in the South African
Constitution of 1996. Discuss this statement critically. Use sections 231 and
233 to highlight the difference in these two functions, and the practical effect
which they may have on the application of public international law in South
African municipal law. (15 marks.)
Answer:
International legal principles may be applied directly as law in South Africa, in
order for a court to reach a decision on a case that has come before it.
Thus treaties, which have become part of South African law as provided for in
section 231(4) (on which we will focus presently), or customary international
law, which is part of South African law subject to the provisions of section 232 (which is
not part of this question, but which we mention for the sake of clarity) will be applied
directly by our courts.
International law may also be used to interpret provisions of our law, be it
• the Bill of Rights (section 39(1)), or
• our common law and customary law (section 39(2)), or
• legislation (section 39(2); section 233).
In this question, we will focus on the latter.
Section 231.
This section provides, among other things:
(4) Any international agreement becomes law in the Republic when it is enacted as 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.
This section sets out the process in which treaties would apply in South Africa.
Unless the provision of a treaty is self-executing, it will have to be transformed into
municipal legislation. This can be done in the following number of ways:
(1) the provisions of the treaty are rewritten in an Act of parliament — see, for
example, the Civil Aviation Offences Act 10 of 1972
, (2) the treaty is enacted as a schedule attached to an Act of parliament — see, for
example, the Diplomatic Immunities and Privileges Act 74 of 1989
(3) an Act of parliament may provide that a treaty will be incorporated by
publication in the Government Gazette — see, for example, section 108 of the Income
Tax Act.
What is important to understand is that whatever legislative shape the treaty takes, the
end result of the process will be that its provisions can be applied directly by the South
African courts.
Section 233: provides as follows:
When interpreting any legislation, every court must prefer any reasonable interpretation
of the legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.
One of the purposes of this section is to promote harmony between international law
and municipal law. As a result of its provisions, international law finds indirect
application within the domestic legal system.
This position is similar to the one we encountered under section 39. In other words,
what is being applied directly is the actual legislative provision, but its meaning (the one
which the court has found to be international law compliant) will have been determined
by international law.
The latter will therefore permeate South African law not directly, but indirectly: the
interpretative process will have inculcated the legislative provision with the relevant
international law principle.
International law, in this context, includes customary international law that has been
incorporated, as well as unincorporated treaties to which South Africa is a party. There
is a presumption that in enacting legislation, legislature did not intend to violate South
Africa's international obligations.
Lastly, some statutes may specify that international law should be used in their
interpretation. For example, the Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002 provides that when a court applies the Act, it must
consider international conventions and international custom.
The Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000
stipulates that those interpreting the statute may be mindful of international law. The
Refugees Act 130 of 1998 stipulates that the Act is to be interpreted and applied with
due regard to relevant conventions and the 1948 universal Declaration of Human Rights.
But even if such specific instructions are not included in the legislative text, the
provisions of section 233 mandate the indirect application of international law in cases
where an international element is present, and the court is required to interpret the
provisions of a relevant statute.
Question 1.
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