LCP4801 UPDATED Exam Questions and CORRECT Answers
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LCP4801
Diplomatic protectionA 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 in...
LCP4801 UPDATED Exam Questions and CORRECT Answers Diplomatic protection ✔✔✔ 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 dome stic laws of a state may impose such obligation, international law does not. 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 Inj uries 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. It was accepted by the court in S v Ban da 1989 4 SA 519 (Bop) that recognition by other states is necessary before an entity may become a state. ✔✔✔ False - In this case the court preferred the declaratory theory - ie only the four objective requirements in the Montevideo Convention must be met f or an entity to be considered a state Section 231(4) of Con ✔✔✔ Any international agreement becomes law in the Republic when it is enacted into 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. Tells us when a treaty that is binding on South Africa internationally becomes law in South Africa. The process necessary to transpose a treaty from the interna tional plane to the national plane. Section 231(1) ✔✔✔ The negotiating and signing of all international agreements is the responsibility of the national executive. Section 231(2) ✔✔✔ An international agreement binds the Republic only after it has been approv ed by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). Section 231(3) ✔✔✔ An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratifi cation or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time. Section 231(5) ✔✔✔ The Republic is bound by international agreements which were binding on the Republic when the Constitution took eff ect. self-executing treaty ✔✔✔ [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 pa rties and to the surrounding circumstances. If a party therefore claims that a treaty is self -executing, the judicial officer will have to determine ✔✔✔ (1) Whether the treaty has been concluded and binds SA through parliamentary approval. (2) Whether the t reaty falls within one of the four exceptions in section 231(3) in which case it binds without parliamentary approval. (3) If it falls within one of these exceptions, then it cannot (presumably from the wording) be self-executing. (4) If it doesn't fall wi thin one of the exceptions, he will then have to: (a) determine the intention of the signatories (b) examine the surrounding circumstances (5) From this he will have to examine whether the treaty contains any provision which requires legislation to make it operative municipally. (6) He will also have to examine the nature of the treaty to see whether treaties of that kind require legislation to make them operative municipally (7) As if this were not enough, he then has to determine whether the treaty confli cts with the Constitution (8) He also has to examine whether it conflicts with an Act of parliament - and in this regard he will have also to consider section 233 Section 231(5) ✔✔✔ This is a typical succession provision which you will find in most constitu tions. It is important to note that the legal entity bound by the treaty is the state, and not the government (which is likely to change from time to time). Article 51 of UN charter ✔✔✔ Nothing in the present Charter shall impair the inherent right of indiv idual or collective self -defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security The following characteristics are important: • The act taken in exercising the right to self -defence is valid only until the Security Council acts. • The purpose of the use of force must be clear: to defend oneself. • The force exercised in self -defence must be proportionate to the posed threat. Role of UN in settlement of disputes ✔✔✔ • The UN, through the Security Council, has the primary responsibility of maintaining global peace and security. • Since both Ajubaria and Kalakuta are members of the UN, they are subject to its jurisdiction, and the UN can interv ene to stop the conflict. • The UN can delegate the responsibility of intervention to a collective/regional force. • When exercising this responsibility, the Security Council must act within the objectives and principles of the UN. • The Security Council may decide on measures such as sanctions, diplomatic negotiations and severance of diplomatic relations in the exercise of its powers
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