LCP4804 Advanced Indigenous Law ASSIGNMENT FEEDBACK 2022.

LCP4804 Advanced Indigenous Law ASSIGNMENT FEEDBACK 2022. LCP4801 – 2021/2022 OCT/NOV exam memo: 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). In terms of Subsection (4), the self-executing treaty concept was adopted from the American courts and described by Shearer as: “[A treaty] which does not in the view of the American courts expressly or by its nature require legislation to make it operative within the municipal field, and that is to be determined by regard to the intention of the signatory parties and to the surrounding circumstances.” In other words, the South African courts must determine whether a particular provision in a treaty, either by nature of provision or, expressly does not require legislation to bring it into operation municipally (self-executing). The court will determine this by taking two factors into account namely: (1) the intention of the signatories and (2) the surrounding circumstances. This concept has been criticised by legal scholars in SA as not being suitable in the SA context. And in terms of case law there has also not been any clarity provided. This can be illustrated by the Quagliani and Goodwin cases. The Quagliani case involved an extradition treaty that had not been enacted into SA law as required by S231(4), the treaty could not be used unless it was proven to be “self-executing”. Because there was no provision made for it via legislation, the state argued that the treaty was “self-executing” by the mere exchange of the parties’ instruments of ratification which the court rejected as the state was confusing the international, subsection (2) with the domestic subsection (4) application of the treaty. Contradictory to the above case the Goodwin case ruled in favour of the self-executing nature of the extradition agreement. Both cases ended up in the Constitutional Court and what we can say, is that Justice Sachs confirmed that the extradition treaty (RSA/US) had not been incorporated by legislation. He also held that he was NOT finding that the treaty was self-executing, BUT he did find that it was enforceable in our law. We therefore now have a third, unspecified manner in which treaties become law in South Africa. While this judgment by the Constitutional Court stands, one can only hope that it will be restricted to extradition treaties only. It has, however, opened the door to speculation of which you should be aware. (1) General: The accepted approach in international law and in terms of the United Nations Charter regarding international peace and security is set out in article 2(4) of the United Nations Charter: - All members shall refrain in their relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the purposes of the United Nations. (2) Reprisals: In terms if lawful reprisals, it requires a: 1. Prior unlawful act against the claimant state 2. By the target state 3. A failed attempt to secure redress by other means; and 4. A proportionate response. (W) acted unlawfully by kidnapping two soldiers from state (Y), (Y) retaliated by bombarding (W) without the attempting to find a peaceful solution as per requirement (3) above. The 1970 Declaration on Principles of International Law declares that: “states have a duty to refrain from acts of reprisal involving the use of force”. I would however say that negotiating the return of (y)’s soldiers would have been proportionate/ better solution to bombarding (X)’s border. In context of the above (Y)’s reasoning for the bombarding of (X)’s borders do not justify its actions and is thus unlawful. (3) Self-defence: Article 51 of the UN Charter allows for the individual/collective self-defence of its Members under certain conditions namely: 1. An armed attack must occur; 2. The purpose for the use of force must be clear i.e. to defend oneself; 3. The force exercised in self-defence must be proportioned to the posed threat; and 4. The act of exercising self-defence as a right, is valid until the Security Council has taken the necessary measures to maintain international peace and security. The measures taken by the member must immediately be reported to the UN Security Council. Article 51 poses a problem as it does not clearly state whether it allows for self-defence after an armed attack or in this case, whether anticipatory self-defence is permissible. This right has existed before 1945 and its customary-law elements were somewhat wider in scope. It mentioned that the pre-Charter self-defence had to be an immediate and necessary response to a situation threatening a state’s security and vital intersts. Including the above proportionality, more importantly the right to self-defence included anticipatory self-defence and intervention to protect nationals.