Exam (elaborations)
LCP4801 EXAM PACK 2023
- Institution
- University Of South Africa
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LCP4801 EXAMPACK 2023
UPDATED
QUESTIONS AND
ANSWERS
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International
law
REVISION STUDY PACK
_________________________________________________________________________________
SECTION A - QUESTIONS AND ANSWERS
TRUE AND FALSE
Indicate whether each of the following statements is true or false. You must substantiate your
choice in each instance.
There are two requirements which must be present for the formation of a customary
international law rule: jus cogens and opinio juris.
False - The requirements are usus and opinio iuris , Jus cogens is a norm from which no derogation is
permitted
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.
Where a foreigner violates the rights of a state’s national outside that state, the state of the
national may claim jurisdiction over such foreigner on the basis of the principle of
nationality.
False -The basis of nationality is applied where the alleged perpetrator is a national of the state This
scenario depicts the basis of jurisdiction known as passive 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.
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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
The ICTY is a permanent international criminal tribunal which functions as the judicial arm of
the United Nations.
False -The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by
Security Council Resolution 827/1993. It was set up in terms of article 41 of the UN Charter. It is an ad
hoc Tribunal established for temporary specific purposes
In order for an entity to qualify as a state, it must have a permanent population amongst other
requirements).
True: The requirements are listed in the Montevideo Convention.
If a state is recommended for UN membership by the Security Council, the General Assembly
must decide on admission of that state by a simple majority of the voting members.
True:
In terms of article 38(1)(d) of the ICJ Statute, international conventions are subsidiary means
for the determination of the rules of law.
False: Article 38(1)(d) of the ICJ Statute lists judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
A jus cogens norm of international law is a peremptory norm from which no derogation is
permitted.
True, see Article 53 of the Vienna Convention.
Article 4(2) of the UN Charter prohibits the threat or use of force against the territorial integrity
or political independence of any state, or in any manner inconsistent with the purposes of the
United Nations.
False: Article 2(4) deals with the prohibition of the threat or use of force against the territorial integrity
of another state; whilst Article 4(2) deals with the role of the General Assembly and the Security
Council in the admission of a state into the United Nations.
In terms of the 2001 ILC Draft Articles on the Responsibility of States for internationally
wrongful acts, necessity may never be invoked as a ground for precluding wrongfulness.
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False: In terms of Article 25(1) of the Draft Articles provides that necessity may only be invoked as a
ground for precluding wrongfulness in the act complained of was the only way for the state to
safeguard an essential interest against a grave and imminent peril, and if the act did not seriously
impair an essential interest of the state, or of the international community as a whole.
In the Bosnia Genocide case the ICJ held that for the conduct of private persons to be
attributable to the state, that conduct must be based on general instructions given to such
persons by the state.
True: See para 406 of the ICJ judgment – “a State’s responsibility can be incurred for acts committed
by persons or groups of persons — neither State organs nor to be equated with such organs — only
if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of
customary international law reflected in Article 8 cited above (paragraph 398). This is so where an
organ of the State gave the instructions or provided the direction pursuant to which the perpetrators
of the wrongful act acted or where it exercised effective control over the action during which the
wrong was committed”.
In terms of article 31 of the 2001 ILC Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, the responsible state is under an obligation to make full
reparation for the injury caused by the internationally wrongful act.
True
In terms of international law, a state is under a legal obligation to exercise diplomatic
protection on behalf of a national who has been injured abroad.
False: The state has a right, rather than a duty.
The ICJ has competence to decide contentious cases between states.
True
In terms of the UN Charter, the General Assembly of the United Nations has a primary
responsibility for the maintenance of international peace and security.
False: Article 24(1) of the UN Charter confers that responsibility on the UNSC.
The right of state to act in self-defence is provided for in article 51 of the UN Charter.
True
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