Summary LCP4801_ International Law_ STUDY NOTES.

LCP4801_ International Law_ STUDY NOTES. Before a state can act on behalf an individual who has suff ered as a result of an international wrong in the territory of another state, the individual must be a national of the state. Nationality is generally in itself a suffi cient nexus but not invariably so. Problems may arise in the event of multiple-nationality. The standard case in this regard is the Nottebohm case 1955 ICJ Rep – make sure that you understand what was decided here. Make sure that you are able to establish (and argue) the nationality of both natural persons (you and me) and legal persons (companies, corporations, trusts etc). OK, we have now established two things: • There has been a violation of international law (in one of its forms) • The person who has suff ered has the nationality of state who is asked to act/ wishes to act against the violating state. There are two things we must now investigate: • Does the state have an enforceable duty to act? • What conditions must be met before it acts? The rules related to the exercise of diplomatic protection are contained in the 2006 Draft Articles on Diplomatic Protection. Here, diplomatic protection is defi ned as ‘the invocation by a State, through diplomatic action or other means of peaceful settement, of the resposnibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to implementation of such responsibility’. It must be remembered that in terms of international law, the right belongs to the state of the injured individual, and before a state may intervene on behalf of its national, all domestic remedies must have been exhausted. See in this regard, the discussion in the Mavrommatis Palestine Concession case. However, even though there is no duty in international law to act on behalf of an individual, there may very well be such a duty in terms of domestic law. In the context of this question, study the analysis of Kaunda and Von Abo very carefully. Make sure that you know and understand these judgments as they have been discussed in you study material. Now, test your knowledge by completing the following activities: Activity 4.7 Through an analysis of South African case law, discuss fully what is ment by diplomatic protection, when the need for this protection may arise, what forms the protection can take; whether the state can be compelled to render such assisatance, and if so–the extent of this obligation. Lastly, assess whether the South African approach is in line with contempory international law. (60) Feedback A state has a right to protect its nationals abroad who have been injured by the actions of the foreign state. The state may take up the case of its subject by resorting to diplomatic action, or international judicial proceedings. The cornerstone of this right is that an injury to a national is considered to be an injury to the state (Panevyezys-Saldutiskis Railway Case). Therefore, under international law, the right of diplomatic protection vests in the state. The state is not under any duty to exercise its right. While the domestic laws of a state may impose such obligation, international law does not. The interesting question is whether South African law imposes such an obligation on the South African government. In this context we shall consider the cases of Kaunda, Van Zyl and Von Abo. The facts in Kaunda v President of the Republic of South Africa 2005 (4) SA (CC) may be summarised briefl y as follows: a number of South Africans had been arrested in Zimbabwe and Equatorial Guinea in connection with charges relating to mercenary activities and plotting a coup against the President of the Equatorial Guinea. Those arrested in Zimbabwe feared that they would be extradited to Equatorial Guinea. All the Applicants claimed that they would not receive a fair trial in Equatorial Guinea. Furthermore, they contended that, if they were convicted in Equatorial Guinea, they would be sentenced to death. They claimed, therefore, that the South African government was under an obligation to off er them diplomatic protection. The court dismissed the application. The majority decision, written by Chaskalson CJ (as he was then known), recognised that international law did not oblige a state to provide diplomatic protection, but in terms of the South African Constitution, there was at least some obligation on the part of the government to provide protection to its nationals abroad. The court began by asserting that a request to the South African government for diplomatic protection was unlikely to be refused if there had been a gross violation of international human rights norms, and the evidence to that eff ect was clear. Should a request for diplomatic protection ever be refused ”the decision would be justiciable, and a court could order the government to take appropriate action”. The court also noted that the assertion of diplomatic protection was ”essentially a function of the executive” with which the “courts are ill equipped to deal”. However, if the executive were to refuse to consider a legitimate request, or if it were to deal with it in bad faith or irrationally, the court could intervene. In other words, while the executive has a broad discretion when conducting foreign aff airs, the courts can review such decisions on the grounds of, for example, irrationality and bad faith. In a concurring opinion, Ngcobo J, examined, inter alia, section 3 (the right to a common South African citizenship) and section 7 which provides that: (1) The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affi rms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfi l the rights in the Bill of Rights. Ngcobo J concluded that “diplomatic protection is a benefi t within the meaning of section 3(2)(a). It follows therefore that sections 3(2)(a) and 7(2) must be read as imposing a constitutional duty on the Government to ensure that all South African nationals abroad enjoy the benefi ts of public protection. The proposition that the Government has no (61) LCP4801/1 constitutional duty in this regard must be rejected. Such a proposition is inconsistent with the Government’s own declared policy and acknowledged constitutional duty”. The dissenting opinion of O’Regan J acknowledged that the conduct of foreign aff airs is typically an executive power under the Constitution and submitted that, in the conduct of foreign relations, “the executive must be aff orded considerable latitude”. She suggested that the court should declare that the executive was “under a constitutional obligation to take appropriate steps to provide diplomatic protection”, but that the executive itself was best placed to determine what steps it should take. In Van Zyl v Government of the RSA 2008 (3) SA 294 (SCA) the applicants requested the South African government to extend diplomatic protection to them in their dispute with the government of the Kingdom of Lesotho. The dispute related to expropriation of the applicants’ mining leases, mining rights and tributing agreements without compensation being paid to them. The contracts referred to were not internationalised. The expropriation had taken place in execution of the Lesotho Highlands Water Project. The latter was provided for in a treaty between the SA government and that of Lesotho. It was claimed that the applicants were entitled to diplomatic protection, because the government of Lesotho had committed an international delict. The SA government had refused the application on the grounds that no right to diplomatic protection accruing to an individual existed in international law (since, in deciding to exercise diplomatic protection, the SA state would have been asserting its own right). The applicants also contended that inaction by the SA government would lead to a violation of a number of provisions of the SA Constitution. Ultimately, the application was dismissed. Amongst others, the applicants could not prove that Lesotho had committed an international delict, nor did they satisfy the two prerequisites for the admissibility of a claim for purposes of diplomatic protection (nationality and exhaustion of local remedies.) The court pointed out that neither international law, nor the Constitution recognised the right to diplomatic protection. The court distinguished the case from Kaunda in that the latter concerned gross human right violations, while in the Van Zyl case the applicants had been expropriated and international law did not recognise the protection of property as an international human right. In Von Abo v Government of the RSA 2009 (2) SA 526 (T) the applicant was a South African farmer in Zimbabwe. Zimbabwe had violated his rights by destroying his property interests in many Zimbabwean farms as part of a governmental scheme of expropriation. Von Abo was not compensated and he had exhausted all local remedies. Von Abo requested the South African government to aff ord him diplomatic protection vis-à-vis Zimbabwe. The applicant claimed that he had a right to such protection in terms of the South African Constitution. Relying on the judgment in Kaunda, the court in Von Abo found that there need not be an actual refusal on the part of government to grant diplomatic protection before a court would intervene. The court stated that, in an appropriate case, a court could also come to the assistance of the aggrieved national where government ‘fails to respond appropriately’ or ‘deals with the matter in bad faith or irrationally’. The court relied on, inter alia, the judgment in Kaunda to conclude that the state had a duty to provide assistance to the applicant. This was a Transvaal Provincial Division judgment (later, North Gauteng Provincial Division). Later, the Constitutional Court ruled that it was not necessary for it to confi rm the Transvaal Provincial Division order (in Von Abo v Government of the RSA and Others 2009 (10) BCLR 1052 (CC), so Von Abo’s application went back to the High Court to establish whether or not (62) the government had complied with the court’s order. In Von Abo v Government of the RSA 2010 (3) SA 269 (GNP) the court found that the government had not done much until then to assist Von Abo and had thus not complied with the court’s order. The court awarded Von Abo damages arising from the infringement of his rights in Zimbabwe. In 2011, the government appealed to the Supreme Court of Appeal (SCA) and the SCA disagreed with the High Court’s award of damages. (We trust that you remember the SA court hierarchy and the rule that higher courts may overturn the decisions of the lower courts). In The Government of the Republic of South Africa v Von Abo (2011) ZASCA 65 it was held: It is ... a completely foreign concept that one state should attract liability in terms of municipal law ... vis-à-vis its own national for the wrongs of another state, committed by that state in another country vis-à-vis the same individual. The only breach that could have occurred in the present case is that the [government] failed to comply with their duty vis-à-vis the respondent to act appropriately to his request for diplomatic protection .... The constitutional breach in this case, if there was one, could only have been a failure to have responded appropriately to the respondent’s request for diplomatic protection. For the present, the individual’s right to diplomatic protection remains a moot point. Activity 4.8 On 10 March 1998, Robert McBride, a South African diplomat was arrested in Maputo in connection with allegations of gun running. He was held in a Maputo jail in an undersized cell under appalling conditions along with 50 Mocambican detainees for some two months without charges being brought and without his being allowed to contact his legal representative or the South African diplomatic or consular representatives. Would you say that South Africa has a claim against Mocambique for the treatment of its national? Could McBride’s wife compel the South African government to act on her husband’s behalf? Feedback If you have studied this section of the work, together with our feedback to the previous activity, answering this activity should be a rather straightforward aff air. Consider the following questions: Has an international norm been violated? – Yes What is the basis of SA’s interest? – Consider the nationality of the diplomat. Can the state be compelled to act? – Discuss the position under both international law and domestic law as we have done above. Responsibility of international organisations In previous learning units, we established that international organisations are subjects of international law. They are endowed with international legal personality and therefore they can act independently on the international plane. Thus, it stands to reason that they can also incur liability. The principles governing such liability are contained in the 2011 ILC (63) LCP4801/1 Draft Articles on the Responsibility of International Organisations and in many respects they are similar to what you have already learned in the context of state liability. Study Strydom pp 149–159 very attentively, and see if you can recognise these similarities. Self-assessment Discuss the approach advocated in the Draft Articles on Responsibility of States for Internationally Wrongful Acts to the following aspects:  When wrongfulness will be excluded;  Necessity as a ground for excluding state liability for a wrongful act;  Serious breaches of peremptory norms (our old ‘friends’ jus cogens and obligations erga omnes (64) Learning unit 5 Maintaining international peace and security: the enforcement of international law In this learning unit we consider the following: 5.1 Introduction 64 5.2 Peaceful settelement of disputes 65 5.3 Non-forcible measures 68 5.4 Use of force 69 Self-assessment 76 Learning outcomes After working through this learning unit, you should be able to: • Describe the different methods of international law enforcement. • Identify the appropriate enforcement measure and apply it to any given practical situation. • Explain under what curcumstances use of force may be justified in international law • Apply the relevant legal law principles in order to identify breaches of international law in situations where forcible measures have been used. • Analyse and explain the controversies created by the use of force in international law Prescribed study material • Strydom (ed) International Law Chapter 5 pp 162–230 • Charter of the United Nations, 1945 5.1 INTRODUCTION As you already know, international law prescribes rules, which its subjects must follow. It is important, therefore, to know what steps may be taken against those who do not comply with the existing norms. So what will happen if a state does not comply with the provisions of a treaty to which it is a party? We have already alluded to the fact that enforcement of public international law can be tricky in light of the fact that there is no international court, which has compulsory jurisdiction, and even when judgments have been handed down you must remember that there is no universal executive authority which can be tasked with the enforcement of these judgments. This is a consequence (65) LCP4801/1 of the fact that international law rules are for the most part based on consent. Thus, international law has on more than one occasion been criticized for its lack of ‘eff ective’