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LCP4801 International Law Summary Notes Q and A Pack 3
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- University Of South Africa (Unisa)
LCP4801 International Law Summary Notes Q and A Pack 3
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LCP4801 Past Paper Q & AWrite an essay in which you discuss the term “customary international law”. In your
essay you must define “customary international law”, describe the requirements for its
formation (with reference to applicable case law) and explain whether and to what
extent customary international law is part of South African law. [25]
Article 38 of the Statute of the ICJ provides that in settling disputes the court shall apply
“international custom, as evidence of a general practice accepted as law”. Custom is therefore
a practice followed by states because they feel legally obliged to behave in such a way. There
are two main requirements for the creation of a customary international rule:
1) Usus (settled practice)
2) Opinio iuris (a sense of obligation on the part of the states)
Usus is constant and uniform usage as defined in the Asylum case. In this regard:
- The practice need not be “universal”, therefore widespread acceptance by states
would be sufficient (Fisheries Jurisdiction case).
- Usage can develop between two, or only a few states to form a local or regional
custom (Case Concerning Right of Passage over Indian Territory, contrary to the
Asylum case).
- The number of states is not as important as the identity of those states. In every
activity, some states’ actions are more important than others (eg the US and USSR
played an important role in developing the law of outer space).
- The number of repetitions necessary to create a custom depends on the nature of the
rule involved and the number of states affected.
- The duration for which the states’ practice must have persisted likewise depends on
the nature of the usage. For example, in S v Petane the court cited a GA Resolution as
a customary rule which developed with little practice (the Resolution concerned the
law of outer space).
- The practice must be characterised by a degree of uniformity, or rather substantial
compliance (Nicaragua v USA). It is sufficient that the conduct of states is generally
consistent with a rule. An inconsistency should be treated as a breach of the rule,
rather than an indication that a new rule has been created.
- According to the rule of the persistent objector, a state isn’t bound if it persistently
objects to the practice while the custom was being developed (Anglo-Norwegian
Fisheries case, North Sea Continental Shelf case).
Opinio iuris is the second requirement which must be present before the usage can become a
binding rule of customary international law. As was stated in the North Sea Continental Shelf
,case, the states concerned must feel that they are conforming to what amounts to a legal
obligation. In other words, they must feel that if they did not follow the usage, they would be
breaking international law and would have to bear the consequences for not complying with it.
In terms of section 232 of the Constitution, “customary international law is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament”. From this provision it is
clear that customary international law is South African (domestic) law and as such it will be
applied directly. If the alleged rule meets the requirements of usus and opinio iuris, the court
will take judicial notice of it and apply it. Only two conditions must be met: the rule must not
contradict the Constitution, and it must not contradict an Act of Parliament. Common law rules
and judicial decisions are subordinate to or at least on par with customary international law.
2. In November 2012, the United Nations General Assembly passed a resolution
changing the status of Palestine from an “observer entity” to a “nonmember
observer state” within the United Nations system. Susan Rice (the US
Ambassador to the UN) told the Assembly: “This resolution does not establish
that Palestine is a state”. You have been tasked by the South African
government to write a legal opinion on whether or not Palestine has become an
independent state in light of the requirements for statehood in international law.
[25]
For an entity to qualify as a state, it must meet all the requirements for statehood. The
Montevideo Convention of 1933 provides the following definition: “The state as a person of
international law should possess the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; (d) capacity to enter into relations with other states”.
Permanent population
The “permanent population” requirement does not mean that there is a required minimum
number of people. Furthermore, the fact that a population is nomadic does not affect
statehood adversely, as was pointed out by the court in the Western Sahara case. What is
important for the purpose of the “permanent population” requirement is that the population
lives in accordance with an organised, recognisable social and political structure with a clear
chain of command.
Defined territory
It is important for a state’s territory to be defined. There is no required minimum size. This
requirement does not imply that the territory must have undisputed borders. Israel serves as
an example: despite the ongoing dispute with Palestine, Israel still satisfies the requirements
for statehood. Furthermore, the territory need not necessarily form one single unit. What is
important is that the state must be sufficiently homogenous to be able to perform its function
of government effectively (eg USA and Alaska separated by Canada; East and West Pakistan
were separated by India). In other words, there must be a stable community within an area
,over which its government has control. If the territories are so dispersed that such control
cannot be exercised in all of them, statehood will not be granted.The case of Van Deventer v
Hancke & Mossop is an example of a case where a community of people, ruled by a particular
government, qualified as a state despite the fact that it had no territory.
Effective government
The entity must have a government that is independent of any other authority, and it must
have legislative and administrative competencies. Brownlie suggests some guidelines which
can be used to assess a government’s effectiveness:
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?
If the answer to these questions is yes, that is an indication of an effective government.
Capacity to enter into relations with other states
This requirement means that a state must be independent of any other authority in the
exercise of its foreign relations. In other words, the entity must be regarded as sovereign. The
fact that a state has relinquished certain aspects of its sovereignty will not necessarily deprive
it of its statehood (R v Christian). What is important is the presence of external sovereignty.
This requirements is also closely linked to the issue of recognition: if the other members of the
international community refuse to recognise a state and to enter into relations with it, that
state will for all practical purposes be deprived of its capacity to enter into relations with other
states.
Recognition
The “requirement” of recognition is not specifically mentioned in the Montevideo Convention.
However it is crucial in practice and underlies the ability of the state to enter into relations with
other states. If an insufficient number of states were to recognise Palestine (in this scenario),
it is doubtful whether it will be considered to have the ability to enter into international
relations, and it would therefore be unable to satisfy the requirements of the Montevideo
Convention.
The dilemma as to whether or not recognition is one of the requirements for statehood has
given rise to two theories: the declaratory theory, and the constitutive theory. Proponents of
the constitutive theory maintain that the act of recognition is one of the requirements for the
creation of international legal personality. The proponents of the declaratory theory advocate
that the act of recognition is not requirement of statehood; statehood and international legal
personality arise the moment the requirements of the Montevideo Convention have been
fulfilled. These two theories have been evaluated by a South African court in S v Banda. The
, court came to the conclusion that the declaratory theory was the more acceptable one. It was
found to be preferable because:
- it was objective, and
- it took into account only those 4 requirements which are based on well established
rules of international law.
The court criticised the constitutive theory for being arbitrarily applied and politically based.
As pointed out, however, the point remains that one can’t completely ignore the need for
recognition. After all, the capacity of a new entity to enter into foreign relations depends on
recognition, and if it is not recognised by a sufficient number of states, Palestine will fail to
become a state in the eyes of the international community (and arguably international law,
depending on the chosen theory).
3. Consider the following statement:
“A nonselfexecuting treaty binding on South Africa internationally but not
incorporated into municipal law will have no direct force of law but may be used
to interpret an ambiguous statute or to challenge legislation, along the lines
indicated in Glenister v President of the Republic of South Africa” - Dugard 2011
Write an essay in which you explain whether you agree with this statement and
why. Discuss the relevant provisions of the Constitution of the Republic of
South Africa, 1996, as well as recent South African judicial decisions in which
our courts have commented on this issue.
Direct application (“no direct force of law”)
The direct application of international law (in the form of treaties) is governed by section 231
of the Constitution. In terms of section 231(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. Therefore, this part of the statement
is true: a treat which has not been incorporated into SA legislation cannot be applied as law
unless the treaty is self-executing.
Indirect application
Treaties can, however, be applied indirectly. The treaty provisions will not be applied as law,
but they will be used to interpret and give meaning to existing SA law. In the Glenister case
the court considered the constitutionality of legislation setting up the specialised unit known as
the Hawks and disbanding the Scorpions. It held that the legislation was unconstitutional
because the unit in question failed to meet the requirements of independence. The court
discussed section 7(2) of the Constitution, in terms of which the state must respect, protect,
and fulfill the rights in the Bill of Rights, and therefore has the duty to create an independent
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