10/28/24, 9:04 PM 2024 Newest |LCP4801 - International law|2024-2025 UPDATE|COMPREHENSIVE MOST TESTED QUESTIONS AND VER…
2024 Newest |LCP4801 - International law|2024-
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Terms in this set (63)
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
Diplomatic protection 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 United Nations may True - This was confirmed by the ICJ in Reparation
exercise diplomatic for Injuries Suffered in the Service of the
protection over its agents United Nations 1949 ICJ Rep. By finding that the UN
and it may could in fact do both, the ICJ
institute an action on recognised that it was a subject of international law
their behalf. enjoying international legal personality.
It was accepted by the False - In this case the court preferred the
court in S v Banda 1989 4 declaratory theory - ie only the four objective
SA 519 (Bop) that requirements in the Montevideo Convention must
recognition by be met for an entity to be considered a
other states is necessary state
before an entity may
become a state.
,10/28/24, 9:04 PM 2024 Newest |LCP4801 - International law|2024-2025 UPDATE|COMPREHENSIVE MOST TESTED QUESTIONS AND VER…
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
Section 231(4) of Con 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
international plane to the national plane.
The negotiating and signing of all international
Section 231(1) agreements is the responsibility
of the national executive.
An international agreement binds the Republic only
after it has been approved by
resolution in both the National Assembly and the
Section 231(2)
National Council of Provinces,
unless it is an agreement referred to in subsection
(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
Section 231(3)
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.
The Republic is bound by international agreements
Section 231(5) which were binding on the
Republic when the Constitution took eff ect.
, 10/28/24, 9:04 PM 2024 Newest |LCP4801 - International law|2024-2025 UPDATE|COMPREHENSIVE MOST TESTED QUESTIONS AND VER…
[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
self-executing treaty
field, and that is to be determined by regard to the
intention of the signatory parties and to the
surrounding circumstances.
(1) Whether the treaty has been concluded and
binds SA through parliamentary approval.
(2) Whether the treaty 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 within one of the exceptions, he
will then have to:
If a party therefore claims
(a) determine the intention of the signatories
that a treaty is self-
(b) examine the surrounding circumstances
executing, the judicial
(5) From this he will have to examine whether the
officer will have to
treaty contains any provision which requires
determine
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 conflicts 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
This is a typical succession provision which you will
find in most constitutions. It is important to note that
Section 231(5) the legal entity bound by the treaty is the state, and
not the government (which is likely to change from
time to time).
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