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459 Cards in this Set
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International law |
Body of rules and principles which are binding upon states(and certain other entities) in their relationships with one another |
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What are the three elements of the definition of IL |
Body or rules and principles Binding upon states I’m their relations with one another
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What types of rules are meant by “body of rules and principles” |
General rules and particular rules |
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What are general rules |
General rules are applicable to all states ( the principle territorial sovereignty) |
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What are particular rules |
Rules that apply only between specific states (AU constructive treaty) |
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Who are the primary subjects of international law |
States |
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True or false: governments incur rights and obligations under international law |
False, states have full legal personality and incur rights and obligations under international law |
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True or false: IL is binding on all member states and their citizens |
False, IL does not directly apply to humans |
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How does IL apply indirectly |
It applies indirectly through states enacting domestic law that complies with IL |
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Can the Certain international entities institute proceedings |
Yes, entities, such as the UN have limited legal personality and can institute proceedings in their own name |
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Can multinational corporations and NGO’s institute proceedings |
No, they are not direct subjects of IL the same way that states are |
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What does IL provide states |
Guidance on how to interact with each other, limits the way the way the can solve problems( prohibits force) |
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Where does IL originate from mainly |
Europe |
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How were societies organised before the emergence of a modern state |
Feudalism and Christian empire |
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What treaty and event caused IL to emerge |
The Peace of Westphalia in 1648 after the thirty year war ended |
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What ideas or principles came forth at the signing of the treaty of the peace of Westphalia |
The independent of sovereign states, and all sovereign states are equal to each other |
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Which articles gives the purpose of the UN |
Article 1(2) of the UN charter |
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Which articles gives the purpose of the UN |
Article 1(2) of the UN charter |
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What is the purpose of the UN |
To develop friendly relationships among nations based on respect for the principles of equal rights and self determination of peoples and to take other appropriate measures to strengthen universal peace in terms of article 1(2) of the UN charter |
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What does s2(1) of the UN charter state |
The organisation is based on the principle of equality of all its members |
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During which time was colonialism legalised |
Q 1648-1914 |
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During which time was colonialism legalised |
Q 1648-1914 |
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Which event caused society to organise itself in a democracy |
The birth of the nationstate with US independence 1776 |
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How did Europe rationalise colonising Africa and the Berlin Conference of 1884 |
The considered Africa terra bullies meaning it was uninhabited and lacked a government meaning it could not be sovereign |
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How did Europe rationalise colonising Africa and the Berlin Conference of 1884 |
The considered Africa terra bullies meaning it was uninhabited and lacked a government meaning it could not be sovereign |
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What are the League of Nations |
A precursor to the UN after WW1 |
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How did the UN start |
Allied powers wanted to establish a new international body that would prevent the scourge of war |
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What does the preamble of the UN charter focus on |
Peace and security |
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What does the preamble of the UN charter focus on |
Peace and security |
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What other events this ww2 develop |
Modern international criminal law Decolorisation as a part of IL |
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What does the preamble of the UN charter focus on |
Peace and security |
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What other events this ww2 develop |
Modern international criminal law Decolorisation as a part of IL |
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How is IL different from domestic law in the executive sense |
There is no central enforcement body in international law, no world powers and the UNSC, which enforces IL, has limited powers and can only act with respect to matters that concern international peach and security |
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How does domestic law differ from IL in the legislative sense |
IL has no centralised law making body, UN general assembly can only adopt non binding resolutions, if the UNSC makes binding decisions it’s only limited to peach and security and need all 5 permanent members to vote |
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How does domestic law differ from IL in the legislative sense |
IL has no centralised law making body, UN general assembly can only adopt non binding resolutions, if the UNSC makes binding decisions it’s only limited to peach and security and need all 5 permanent members to vote |
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What does Article 25 of the UN charter state |
Members of UN need to accept and carry out the decisions of the UNSC in accordance with the present charter |
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How does domestic law differ from IL in the legislative sense |
IL has no centralised law making body, UN general assembly can only adopt non binding resolutions, if the UNSC makes binding decisions it’s only limited to peach and security and need all 5 permanent members to vote |
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What does Article 25 of the UN charter state |
Members of UN need to accept and carry out the decisions of the UNSC in accordance with the present charter |
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What does Article 27(3) of the UN charter entail |
Decisions of the Security council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members |
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How does domestic law differ with IL regarding the judiciary |
IL has regime specific courts and the states must submit and consent to the jurisdiction of these courts. The ICJ is the closest thing to a world court |
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How does domestic law differ with IL regarding the judiciary |
IL has regime specific courts and the states must submit and consent to the jurisdiction of these courts. The ICJ is the closest thing to a world court |
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What does fragmentation in terms of IL mean |
There is not one single collection of international law |
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How does domestic law differ with IL regarding the judiciary |
IL has regime specific courts and the states must submit and consent to the jurisdiction of these courts. The ICJ is the closest thing to a world court |
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What does fragmentation in terms of IL mean |
There is not one single collection of international law |
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Give example of different IL regimes |
International criminal law International environmental law International human rights law International space law Ect. |
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What is natural law theory |
System of law or justice which is considered to be common to all humans and is derived from nature or reason rather that the rules of society. There is a higher, universal moral process that governs humans and it is where this law derives it’s force. It focused on reason and the morality |
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What is natural law theory |
System of law or justice which is considered to be common to all humans and is derived from nature or reason rather that the rules of society. There is a higher, universal moral process that governs humans and it is where this law derives it’s force. It focused on reason and the morality |
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Who argued that nations and persons ought to be governed by universal principles based on morality and justice |
Hugo Grotius |
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Which theory of law would the general principles of IL I.t.o Article 38(1)(c) of the statute of the international court of justice be based on |
Natural law theory |
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Which theory argues law derives its force through its codification |
Positivism |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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Which theory argues law derives its force through its codification |
Positivism |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Which theory argues law derives its force through its codification |
Positivism |
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True or false: International law is a tool used in international power politics according to Realism |
True, this theory says IR are governed by power and IL is only helpful to guide the decision making in which states have to protect their power in an international level. |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Which theory argues law derives its force through its codification |
Positivism |
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True or false: International law is a tool used in international power politics according to Realism |
True, this theory says IR are governed by power and IL is only helpful to guide the decision making in which states have to protect their power in an international level. |
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True or false: law regulates power |
False, power regulates law |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Which theory argues law derives its force through its codification |
Positivism |
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True or false: International law is a tool used in international power politics according to Realism |
True, this theory says IR are governed by power and IL is only helpful to guide the decision making in which states have to protect their power in an international level. |
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True or false: law regulates power |
False, power regulates law |
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What are the problems with Realism |
Idea of power regulating law is incoherent, power lacks structure and as a result, it cannot regulate anything, let alone the state. States are equal in IL despite power imbalances. If law was unequal, why would weaker states follow it |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Which theory argues law derives its force through its codification |
Positivism |
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True or false: International law is a tool used in international power politics according to Realism |
True, this theory says IR are governed by power and IL is only helpful to guide the decision making in which states have to protect their power in an international level. |
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True or false: law regulates power |
False, power regulates law |
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What are the problems with Realism |
Idea of power regulating law is incoherent, power lacks structure and as a result, it cannot regulate anything, let alone the state. States are equal in IL despite power imbalances. If law was unequal, why would weaker states follow it |
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Why is the argument that power regulates law incoherent |
Because there is no internal structure in power that can be described as regulatory as per D’Amato |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Which theory argues law derives its force through its codification |
Positivism |
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True or false: International law is a tool used in international power politics according to Realism |
True, this theory says IR are governed by power and IL is only helpful to guide the decision making in which states have to protect their power in an international level. |
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True or false: law regulates power |
False, power regulates law |
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What are the problems with Realism |
Idea of power regulating law is incoherent, power lacks structure and as a result, it cannot regulate anything, let alone the state. States are equal in IL despite power imbalances. If law was unequal, why would weaker states follow it |
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Why is the argument that power regulates law incoherent |
Because there is no internal structure in power that can be described as regulatory as per D’Amato |
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Exceptionalism |
Argues states can choose what applies to them and power is the main driver of international relations. It believes that powerful states enjoy and ought to enjoy an interpretive advantage if and when IL is cited against them. Also believes powerful states in the ones that have the greatest say in it and how international law applies to them, simply because they are in a position of power |
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How does the positivism theory believe law is created |
Created through institutions with the power to do so |
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What sources do positivists rely on |
Treaties and customs |
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Where does INTERNATIONAL LAW derive its force from |
Through the will and consent of states |
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Name the classical or traditional theories of IL |
Reductionism Realism Exceptionalism Neoliberalism |
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What does reductionism state |
All international law can be reduced to state consent |
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Why Is reductionism flawed |
It does not explain customary international law |
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Koshennie and Kennedy says IL is a result of two polar opposite positions on it, how do you determine this? |
You start from either the state interest (which he considers as apology-one end of the spectrum) and world order (utopia- other end). This theory is overly academic and little practical value |
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How does realism explain international relations |
Through the lens of power |
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What is realism a reaction to |
Idealism, which emphasised the importance of morality and justice in IL |
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Exceptionalism believes according to goldsmith and Posner |
There is no compulsion attached to IL and are only suggestions. |
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Exceptionalism believes according to goldsmith and Posner |
There is no compulsion attached to IL and are only suggestions. |
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Which approach is premised on self interest as the single driving factor behind the creation of and compliance with IL |
Exceptionalism |
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Neoliberalism |
Accepts the realist position that states seek and act in their own self interest but it has a more optimistic outcomes |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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How does Pahuja disagree with neoliberalism |
Modern international law frames economic growth and development have become the common interest of the state but this goal has sanctioned imperialism, ultimately compromising the sovereignty of a state |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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How does Pahuja disagree with neoliberalism |
Modern international law frames economic growth and development have become the common interest of the state but this goal has sanctioned imperialism, ultimately compromising the sovereignty of a state |
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What do contemporary approaches to IL suggest |
Law is seen merely as an ideology for the purposes of gaining, cementing and justifying the exercise of power. Powerful states have an agenda to uphold racist or sexist or imperialist values and goals and international law is designed to achieve this agenda and maintain the hegemonic structure of global power relations |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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How does Pahuja disagree with neoliberalism |
Modern international law frames economic growth and development have become the common interest of the state but this goal has sanctioned imperialism, ultimately compromising the sovereignty of a state |
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What do contemporary approaches to IL suggest |
Law is seen merely as an ideology for the purposes of gaining, cementing and justifying the exercise of power. Powerful states have an agenda to uphold racist or sexist or imperialist values and goals and international law is designed to achieve this agenda and maintain the hegemonic structure of global power relations |
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Which third world approaches are there |
Anti colonial and feminist approaches |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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How does Pahuja disagree with neoliberalism |
Modern international law frames economic growth and development have become the common interest of the state but this goal has sanctioned imperialism, ultimately compromising the sovereignty of a state |
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|
What do contemporary approaches to IL suggest |
Law is seen merely as an ideology for the purposes of gaining, cementing and justifying the exercise of power. Powerful states have an agenda to uphold racist or sexist or imperialist values and goals and international law is designed to achieve this agenda and maintain the hegemonic structure of global power relations |
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Which third world approaches are there |
Anti colonial and feminist approaches |
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What does the anti colonial approach to IL do |
Analyses the implicit assumptions of the economic, social and political superiority/inferiority relationship between the colonised and the colonisers. Says great decolonisation has not led to self determination because the thing that was used to decolonise is oppressive in itself. The goal of anti colonialist is the restructuring of IL |
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Which political theory favourites self interest and free market approaches to regulation |
Neoliberalism |
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What will happen if you apply neoliberalism to IL |
This theory suggest that all states act in their own interest and while the interest of states can conflict, ultimately they will realise that it is in all states self interest to use international law and institutions to achieve common goals |
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How does Pahuja disagree with neoliberalism |
Modern international law frames economic growth and development have become the common interest of the state but this goal has sanctioned imperialism, ultimately compromising the sovereignty of a state |
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|
|
What do contemporary approaches to IL suggest |
Law is seen merely as an ideology for the purposes of gaining, cementing and justifying the exercise of power. Powerful states have an agenda to uphold racist or sexist or imperialist values and goals and international law is designed to achieve this agenda and maintain the hegemonic structure of global power relations |
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Which third world approaches are there |
Anti colonial and feminist approaches |
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What does the anti colonial approach to IL do |
Analyses the implicit assumptions of the economic, social and political superiority/inferiority relationship between the colonised and the colonisers. Says great decolonisation has not led to self determination because the thing that was used to decolonise is oppressive in itself. The goal of anti colonialist is the restructuring of IL |
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Explain the feminist approach to IL |
IL is not neutral to woman and it’s design contributes to the perpetuation of woman’s social inferiority |
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Synonyms for domestic law |
Local and municipal law |
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Synonyms for domestic law |
Local and municipal law |
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What is a municipal law |
Laws that are specific to a state |
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Synonyms for domestic law |
Local and municipal law |
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What is a municipal law |
Laws that are specific to a state |
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What are the two main sources of international law |
Treaty law and customary international law |
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What is treaty law |
Treaty law are those rules and principles that are written or codified in binding documents. It can multi or bilateral. Other names for this include conventions and memoranda of agreement. Treaties only apply to countries who sign them |
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What is treaty law |
Treaty law are those rules and principles that are written or codified in binding documents. It can multi or bilateral. Other names for this include conventions and memoranda of agreement. Treaties only apply to countries who sign them |
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What is customary international law |
Binds state but is not written or codifies and applies to all states regardless whether subscribed or not |
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What is treaty law |
Treaty law are those rules and principles that are written or codified in binding documents. It can multi or bilateral. Other names for this include conventions and memoranda of agreement. Treaties only apply to countries who sign them |
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What is customary international law |
Binds state but is not written or codifies and applies to all states regardless whether subscribed or not |
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Explain monism |
This maintains that international and municipal law must be regarded as manifestations of a single conception of law. |
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What do monist argue regarding municipal courts |
They are obliged to apply rules of international law directly without the need for any act of adoption by the courts or transformation by the legislature |
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Which scholars believe international law is incorporated into municipal law without any act of adoption or transformation this accepting that the municipal and international legal systems form a unity |
Monist scholars |
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Examples of countries following a monist approach |
Netherlands Germany Namibië |
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Examples of countries following a monist approach |
Netherlands Germany Namibië |
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What is the harmonisation theory and which school adopted it |
Monism school adopted it and it hold that where international and domestic law is in contrast, a judge should apply his own countries jurisdictional rules |
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Examples of countries following a monist approach |
Netherlands Germany Namibië |
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What is the harmonisation theory and which school adopted it |
Monism school adopted it and it hold that where international and domestic law is in contrast, a judge should apply his own countries jurisdictional rules |
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Dualism |
International law and domestic law are completely different systems of law, resulting in IL only being applied by domestic courts if the courts adopted it or transformed it into local law by legislation |
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Nduli v minister of justice |
It is important to remember that the rule favouriting the incorporation of customary international law into SA law is derived from Roman Dutch law and not English law |
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Which category does customary international law form part of |
Common law |
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Which category does customary international law form part of |
Common law |
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How is the relationship between SA municipal and international law regulated |
Through Constitutional provisions (s231-233) |
W |
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Which category does customary international law form part of |
Common law |
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How is the relationship between SA municipal and international law regulated |
Through Constitutional provisions (s231-233) |
W |
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S231(1) of the Constitution |
It is the responsibility of the national executive authority to negotiate and sign all external agreements, this executive branch is the prominent branch regarding international agreements |
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Which category does customary international law form part of |
Common law |
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How is the relationship between SA municipal and international law regulated |
Through Constitutional provisions (s231-233) |
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S231(1) of the Constitution |
It is the responsibility of the national executive authority to negotiate and sign all external agreements, this executive branch is the prominent branch regarding international agreements |
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Earth life Africa v minister of energy |
While treaties that expressly or by necessary implication require ratification have to be approved by parliament after signature, agreements of a technical, administrative or executive nature and agreements that do not require ratification or accession do not require parliamentary approval to become binding, but must merely be tabled before parliament in a reasonable time |
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Which category does customary international law form part of |
Common law |
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How is the relationship between SA municipal and international law regulated |
Through Constitutional provisions (s231-233) |
W |
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S231(1) of the Constitution |
It is the responsibility of the national executive authority to negotiate and sign all external agreements, this executive branch is the prominent branch regarding international agreements |
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Earth life Africa v minister of energy |
While treaties that expressly or by necessary implication require ratification have to be approved by parliament after signature, agreements of a technical, administrative or executive nature and agreements that do not require ratification or accession do not require parliamentary approval to become binding, but must merely be tabled before parliament in a reasonable time |
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Section 231 of the CRSA |
All agreements(except technical, administrative and executive of nature) must pass through parliament |
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S231(2)-S 231(4) of the CRSA |
Requires parliamentary oversight before the treaty binds the republic according to separation of powers |
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S231(2)-S 231(4) of the CRSA |
Requires parliamentary oversight before the treaty binds the republic according to separation of powers |
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S 231(2) of the CRSA |
Determines that an international agreement bind the republic only after its been approved in both Houses of Parliament unless it is an agreement referred to under ss(3) |
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S231(2)-S 231(4) of the CRSA |
Requires parliamentary oversight before the treaty binds the republic according to separation of powers |
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S 231(2) of the CRSA |
Determines that an international agreement bind the republic only after its been approved in both Houses of Parliament unless it is an agreement referred to under ss(3) |
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S231(3) of CRSA |
Treated in technical, administrative or executive functions do not require ratification only parliamentary overview within reasonable time |
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S231(4) of the CRSA |
Relates to treaties binding nature between persons within SA and SA state. International agreements become law once it is enacted into law by national legislation thus necessitating that all the parliamentary steps are followed and follows a Dualist approach |
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DA v minister of IR |
Court held that s231 of the CRSA also requires parliamentary approval before withdrawing from international treaties which parliament previously approved |
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S232 of the Constitution |
Determined that Customary IL is law in the republic unless it is inconsistent with the constitution or Act of parliament . Section requires that customary international law be evaluated for inconsistencies against the Constitution and Acts of Parliament |
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S232 of the constitution |
Compels courts to take a two step enquiry. Step one must determine what the relevant Customary IL is in relation to the issue facing the court. Secondly, having determined the customary international law position, the court must determine whether the relevant customary IL is consistent with the Constitution and domestic legislation |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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National commissioner v SALC |
Not permissible for court to expand the boundaries of customary IL beyond recognition. Case deals with states obligation to investigate allegations of torture committed in Zim by zim officials. Court geld that torture is an International crime under customary international law, s232 makes torture a crime in SA. |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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National commissioner v SALC |
Not permissible for court to expand the boundaries of customary IL beyond recognition. Case deals with states obligation to investigate allegations of torture committed in Zim by zim officials. Court geld that torture is an International crime under customary international law, s232 makes torture a crime in SA. |
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How do you make customary law part of municipal law |
Has to pass the two stage inquire and this approach falls within monism |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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National commissioner v SALC |
Not permissible for court to expand the boundaries of customary IL beyond recognition. Case deals with states obligation to investigate allegations of torture committed in Zim by zim officials. Court geld that torture is an International crime under customary international law, s232 makes torture a crime in SA. |
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How do you make customary law part of municipal law |
Has to pass the two stage inquire and this approach falls within monism |
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How can you make a treaty binding In step 1 |
Step 1: executive negotiates and signs but it does create obligations yet, s231 Step 2: agreement must be approved by parliament through resolution, provided it is not under 231(3). Once ratified, treaty binds country to other countries but it is not domestic law Step 3: ito s231(4), parliament must also ordain The agreement into an Act of parliament, only then is it also binding on the people of SA |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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National commissioner v SALC |
Not permissible for court to expand the boundaries of customary IL beyond recognition. Case deals with states obligation to investigate allegations of torture committed in Zim by zim officials. Court geld that torture is an International crime under customary international law, s232 makes torture a crime in SA. |
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How do you make customary law part of municipal law |
Has to pass the two stage inquire and this approach falls within monism |
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How can you make a treaty binding In step 1 |
Step 1: executive negotiates and signs but it does create obligations yet, s231 Step 2: agreement must be approved by parliament through resolution, provided it is not under 231(3). Once ratified, treaty binds country to other countries but it is not domestic law Step 3: ito s231(4), parliament must also ordain The agreement into an Act of parliament, only then is it also binding on the people of SA |
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Which courts have compulsory jurisdiction in IL |
None |
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How may courts treat international law as part of our domestic law |
As part of the common law |
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National commissioner v SALC |
Not permissible for court to expand the boundaries of customary IL beyond recognition. Case deals with states obligation to investigate allegations of torture committed in Zim by zim officials. Court geld that torture is an International crime under customary international law, s232 makes torture a crime in SA. |
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How do you make customary law part of municipal law |
Has to pass the two stage inquire and this approach falls within monism |
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How can you make a treaty binding In step 1 |
Step 1: executive negotiates and signs but it does create obligations yet, s231 Step 2: agreement must be approved by parliament through resolution, provided it is not under 231(3). Once ratified, treaty binds country to other countries but it is not domestic law Step 3: ito s231(4), parliament must also ordain The agreement into an Act of parliament, only then is it also binding on the people of SA |
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Which courts have compulsory jurisdiction in IL |
None |
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How do courts get jurisdiction |
The states must consent to giving them jurisdiction on a case by case basis |
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Can consent for jurisdiction be granted in other ways |
By a standing arrangement flowing from the adoption and ratification of a treaty |
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Can consent for jurisdiction be granted in other ways |
By a standing arrangement flowing from the adoption and ratification of a treaty |
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How was the ICJ established |
By the charter of the in as the principle judicial organ of the UN |
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Can consent for jurisdiction be granted in other ways |
By a standing arrangement flowing from the adoption and ratification of a treaty |
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How was the ICJ established |
By the charter of the in as the principle judicial organ of the UN |
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In terms of article 3 of the ICJ statute, Who does the ICJ consist of |
15 judges from different states |
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What does article 2 of the ICJ statute suggest |
Judges must be independent, elected regardless of their nationality, on the basis of their high moral character and who possess the qualifications required in their respective countries for appointment to the highest judicial offices |
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What does article 2 of the ICJ statute suggest |
Judges must be independent, elected regardless of their nationality, on the basis of their high moral character and who possess the qualifications required in their respective countries for appointment to the highest judicial offices |
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How long do ICJ judges hold office |
9 years |
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What constitutes a quorum and simple majority in terms of the ICJ |
9/ 15 is a quorum and 8/15 is a simple majority of judges deciding all questions before the court |
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What does article 2 of the ICJ statute suggest |
Judges must be independent, elected regardless of their nationality, on the basis of their high moral character and who possess the qualifications required in their respective countries for appointment to the highest judicial offices |
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How long do ICJ judges hold office |
9 years |
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What constitutes a quorum and simple majority in terms of the ICJ |
9/ 15 is a quorum and 8/15 is a simple majority of judges deciding all questions before the court |
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Which two jurisdictions to the ICJ exercise |
Contentious proceedings and advisory proceedings |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Advisory proceedings |
Non binding advisory opinion issued by court |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Advisory proceedings |
Non binding advisory opinion issued by court |
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Article 34 of the ICJ statute |
Only states but has opened up to entities as well |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Advisory proceedings |
Non binding advisory opinion issued by court |
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Article 34 of the ICJ statute |
Only states but has opened up to entities as well |
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S36 of ICJ statute |
How consent is set out in which ways |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Advisory proceedings |
Non binding advisory opinion issued by court |
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Article 34 of the ICJ statute |
Only states but has opened up to entities as well |
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S36 of ICJ statute |
How consent is set out in which ways |
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In terms of what is the final judgement of the ICJ in a contentious proceeding final and binding |
Article 59 of ICJ statute and article 94(1) of UN charter |
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Contentious proceedings |
Dispute between two states are heard and a binding judgement is issued |
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Advisory proceedings |
Non binding advisory opinion issued by court |
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Article 34 of the ICJ statute |
Only states but has opened up to entities as well |
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S36 of ICJ statute |
How consent is set out in which ways |
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In terms of what is the final judgement of the ICJ in a contentious proceeding final and binding |
Article 59 of ICJ statute and article 94(1) of UN charter |
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What is customary international law |
Binding primary source of international law and can be unwritten and binding on all states except persistent objector |
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What is the usus requirement |
Essentially refers to the actual practice of states which is consistent with a rule of IL |
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What is the fifth ILC report conclusion 6 |
Regards state practice as conduct attributable to the state irrespective of whether such practice is excercised by the states executive, legislature judicial or other functions |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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What is the threshold test |
Practice must be general and virtually uniform |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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What is the threshold test |
Practice must be general and virtually uniform |
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What is the requirement of opinion juris |
Means appeared as law. Referred to the psychological requirement in customary international law. Refers to the subjective attitude of a state. Makes mention of a states compliance with a certain rule as that state believes it is obliged to do so and it is is distinguished from habit |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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What is the threshold test |
Practice must be general and virtually uniform |
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What is the requirement of opinion juris |
Means appeared as law. Referred to the psychological requirement in customary international law. Refers to the subjective attitude of a state. Makes mention of a states compliance with a certain rule as that state believes it is obliged to do so and it is is distinguished from habit |
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Firth reports list forms of evidence for acceptance as law including: |
Public statements on behalf of the state, official publications, diplomatic correspondence ect |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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What is the threshold test |
Practice must be general and virtually uniform |
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What is the requirement of opinion juris |
Means appeared as law. Referred to the psychological requirement in customary international law. Refers to the subjective attitude of a state. Makes mention of a states compliance with a certain rule as that state believes it is obliged to do so and it is is distinguished from habit |
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Firth reports list forms of evidence for acceptance as law including: |
Public statements on behalf of the state, official publications, diplomatic correspondence ect |
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Explain the inherent requirement |
Action qualified as acceptance as law as the state acts owing to the sense of legal obligation |
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Germany v Italy |
Deals with whether the opinio juristic requirement is satisfied |
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General practice consist of three elements |
Sufficiently widespread, representative and virtually uniform |
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What is the threshold test |
Practice must be general and virtually uniform |
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What is the requirement of opinion juris |
Means appeared as law. Referred to the psychological requirement in customary international law. Refers to the subjective attitude of a state. Makes mention of a states compliance with a certain rule as that state believes it is obliged to do so and it is is distinguished from habit |
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Firth reports list forms of evidence for acceptance as law including: |
Public statements on behalf of the state, official publications, diplomatic correspondence ect |
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Explain the inherent requirement |
Action qualified as acceptance as law as the state acts owing to the sense of legal obligation |
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Germany v Italy |
Deals with whether the opinio juristic requirement is satisfied |
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How is the opinio juris requirement formulated according to Germany v Italy |
Being an obligation imposed upon states by IL to abide by the rule in question |
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Article 65 of the ICJ statute |
Court can give advisory opinions at the request of the UN generally Assembly, UNSC and other UN organs or agencies authorised by the UN |
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Article 65 of the ICJ statute |
Court can give advisory opinions at the request of the UN generally Assembly, UNSC and other UN organs or agencies authorised by the UN |
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Does the Secretary General of the UN have access to request an advisory opinion |
No |
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Article 65 of the ICJ statute |
Court can give advisory opinions at the request of the UN generally Assembly, UNSC and other UN organs or agencies authorised by the UN |
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Does the Secretary General of the UN have access to request an advisory opinion |
No |
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What force does the advisory opinions cary |
It carries no legal force, Purpose is simply to give guidance to the organisation requesting the opinion in order to assist them when assessing a situation and making a decision |
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Article 65 of the ICJ statute |
Court can give advisory opinions at the request of the UN generally Assembly, UNSC and other UN organs or agencies authorised by the UN |
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Does the Secretary General of the UN have access to request an advisory opinion |
No |
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What force does the advisory opinions cary |
It carries no legal force, Purpose is simply to give guidance to the organisation requesting the opinion in order to assist them when assessing a situation and making a decision |
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Examples of International courts and tribunals |
International criminal court International tribunal of the law and the sea African court on human and peoples rights European court of human rights International criminal tribunal for Rwanda |
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What are the sources of international law |
Sources refer to the document/instrument/ source where a particular rule or principle of international law can be found |
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How does treaty law differ from municipal law |
There is no international legislation and no system of legal precedence |
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Article 38(1) of ICJ |
List the sources the ICJ may consult during international disputes |
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Article 38(1) of ICJ |
List the sources the ICJ may consult during international disputes |
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How are sources of IL described in article 38 |
Treaties, whether particular or general International custom, as evidence of a general practice accepted as law The general principles of law recognised by civilised nations and Judicial decisions and the teachings of the most highly qualified publicist as subsidiary means for the determination of rules of law |
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What are the ranking differences between modern and classical IL |
Classical law all IL enjoy equal status while in modern IL certain norms have higher status in the normative hierarchy if sources |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Name binding primary sources |
Treaties, customary IL, general principles of IL |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Name binding primary sources |
Treaties, customary IL, general principles of IL |
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Give examples of treaties |
Charter of the UN, ornate statute, Vienna convention, Paris agreement |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Name binding primary sources |
Treaties, customary IL, general principles of IL |
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Give examples of treaties |
Charter of the UN, ornate statute, Vienna convention, Paris agreement |
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Examples of Customary IL |
Prohibition of trans boundary harm, common article 3 |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Name binding primary sources |
Treaties, customary IL, general principles of IL |
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Give examples of treaties |
Charter of the UN, ornate statute, Vienna convention, Paris agreement |
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Examples of Customary IL |
Prohibition of trans boundary harm, common article 3 |
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Example if general principles of IL |
Unjustified enrichment, estoppel, memo Judex in re sua |
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Which obligations enjoy normative superiority over IL |
Obligations under UN charter |
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Name binding primary sources |
Treaties, customary IL, general principles of IL |
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Give examples of treaties |
Charter of the UN, ornate statute, Vienna convention, Paris agreement |
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Examples of Customary IL |
Prohibition of trans boundary harm, common article 3 |
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Example if general principles of IL |
Unjustified enrichment, estoppel, memo Judex in re sua |
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Name subsidiary sources |
Judicial decisions of international courts and tribunals and teachings of the most highly qualified publicists |
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What is a treaty |
Treaty is a contract between states governed by IL creating rights and obligations between parties to the treaty and can be oral or written and governed by the VCLT |
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Article 1 VCLT |
Only written treaties are governed by the VCLT |
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Article 2(a) |
Definition for purposes of Vienna convention. Treaty means an international agreement concluded between states in written for and governed by international law, whether embodies in a single instrument or in two or more related instruments and whatever its particular designation |
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What are the elements constituting an agreement under 2(1)(a) of the VCLT |
Must be written Must be concluded between two or more states Agreement must be international in nature and is governed by international law Agreement must give rise to legal obligations between parties to the treaty or create legal rights that are to the benefit to the parties to the treaty |
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What are the elements constituting an agreement under 2(1)(a) of the VCLT |
Must be written Must be concluded between two or more states Agreement must be international in nature and is governed by international law Agreement must give rise to legal obligations between parties to the treaty or create legal rights that are to the benefit to the parties to the treaty |
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How many states can the treaties bind |
Multilateral or bilateral |
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What three catabolises are treaties divided into |
Contractual, legislative and constitutional |
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What do treaties of a contractual nature between states govern |
Trade Extradition Air and landing rights Mutual defence |
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What is the legislative category of treaties |
Treaties that codify existing rules of customary IL or that create new rules of law. It is not binding on non signatory states. The basic rule is pacts tertiis nec nocent nec prosunt (treaties do not confer obligations or benefits upon non signatory state’s) |
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What does Pacta tertiis nec nocent nec prosunt mean |
Treaties do not confer obligations or benefits upon non signatory states |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What type of treaty is the Rome statute of the ICC |
Constitutional |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What type of treaty is the Rome statute of the ICC |
Constitutional |
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How does custom play a role in undeveloped societies I.t.o Constitutional IL |
When such countries develop and establish legislatures and effective judicial systems, customary rules are codified, they may also be replaced by statute or become primary sources of law. Customary IL occupies a significant role in the international legal order. The international system had no legislature or compulsory judicial system |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What type of treaty is the Rome statute of the ICC |
Constitutional |
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How does custom play a role in undeveloped societies I.t.o Constitutional IL |
When such countries develop and establish legislatures and effective judicial systems, customary rules are codified, they may also be replaced by statute or become primary sources of law. Customary IL occupies a significant role in the international legal order. The international system had no legislature or compulsory judicial system |
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What does Article 7 of the VCLT entail |
Who can sign treaties |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What type of treaty is the Rome statute of the ICC |
Constitutional |
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How does custom play a role in undeveloped societies I.t.o Constitutional IL |
When such countries develop and establish legislatures and effective judicial systems, customary rules are codified, they may also be replaced by statute or become primary sources of law. Customary IL occupies a significant role in the international legal order. The international system had no legislature or compulsory judicial system |
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What does Article 7 of the VCLT entail |
Who can sign treaties |
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Article 7(1) of the VCLT |
A person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound if A) he produces appropriate full powers B) appears from the practice of the states concerned or from other circumstances that their intention was to consider that person as representing the state for such purposes and to dispense with full powers |
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What is a constitutional treaty |
Multilateral treaties that create international organisations such as the UN eg. Charter of the UN is a treaty, it serves as the Constitution of the UN. All member states are parties to it |
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What type of treaty is the Rome statute of the ICC |
Constitutional |
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How does custom play a role in undeveloped societies I.t.o Constitutional IL |
When such countries develop and establish legislatures and effective judicial systems, customary rules are codified, they may also be replaced by statute or become primary sources of law. Customary IL occupies a significant role in the international legal order. The international system had no legislature or compulsory judicial system |
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What does Article 7 of the VCLT entail |
Who can sign treaties |
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Article 7(1) of the VCLT |
A person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound if A) he produces appropriate full powers B) appears from the practice of the states concerned or from other circumstances that their intention was to consider that person as representing the state for such purposes and to dispense with full powers |
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Who are considered representing their state without having to produce full powers I.t.o article 7(2)(a)-(c) |
A) head of state, head of government, minister of foreign affairs B) head of diplomatic missions c) accredited representatives of state to an international conference or organisation for purpose of adopting a text |
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How does a state express consent to be bound (article 11 of the VCLT) |
Signature (article 12) Exchange if instruments (article 13) Ratification, acceptance, approval and accession (article 14) |
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What does ratification, acceptance, approval and accession mean in terms of article 2(1)(b) of the VCLT |
The interns act so named where by a state established in the international plane it’s consent to be bound by a treaty |
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What do you do after signing a treaty |
You have to register the treaty I.t.o article 80 of the VCLT. It must be registered after entry into force and must be done by the secretariat of the UN |
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What do you do after signing a treaty |
You have to register the treaty I.t.o article 80 of the VCLT. It must be registered after entry into force and must be done by the secretariat of the UN |
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What does Article 102(1-2) of the VCLT state |
(1) Every treaty and every IA entered into by a member after the present charter comes into force shall as soon as possible be registered with the secretariat and published by it (2) no party to any such treaty or IA which had not been registered in accordance with the provisions of par 1 of this article may invoke that treat it or agreement before any organ of the UN( organ if UN= ICJ) |
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When does a treaty enter into force |
After minimum amount of states ratify the treaty on a predetermined date |
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What do you do after signing a treaty |
You have to register the treaty I.t.o article 80 of the VCLT. It must be registered after entry into force and must be done by the secretariat of the UN |
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What does Article 102(1-2) of the VCLT state |
(1) Every treaty and every IA entered into by a member after the present charter comes into force shall as soon as possible be registered with the secretariat and published by it (2) no party to any such treaty or IA which had not been registered in accordance with the provisions of par 1 of this article may invoke that treat it or agreement before any organ of the UN( organ if UN= ICJ) |
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When does a treaty enter into force |
After minimum amount of states ratify the treaty on a predetermined date |
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Somalia v Kenya |
MOU is a valid treaty if it is in writing, regulated, a legal obligation, signed and had powers such as a minister |
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What is a states obligation once a treaty comes into force according to article 18 of the VCsomething |
Not to defeat the object and purpose of a treaty prior to its entity into force |
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What is a states obligation once a treaty comes into force according to article 18 of the VCsomething |
Not to defeat the object and purpose of a treaty prior to its entity into force |
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When is a state refrained from acts which would defeat the object and purpose of the treaty |
When the treaty had been signed or had exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or Has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed |
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Minister of justice v SALC |
Treaty cannot impose obligations on states that are not parties to the treaty and not consented to the imposition of such obligations and can only be binding or parties that have consented (article 34 of the Vienna convention) |
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Minister of justice v SALC |
Treaty cannot impose obligations on states that are not parties to the treaty and not consented to the imposition of such obligations and can only be binding or parties that have consented (article 34 of the Vienna convention) |
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Article 27 Of VCLT |
Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. |
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Minister of justice v SALC |
Treaty cannot impose obligations on states that are not parties to the treaty and not consented to the imposition of such obligations and can only be binding or parties that have consented (article 34 of the Vienna convention) |
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Article 27 Of VCLT |
Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. |
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Article 46 of the VCLT |
State may not invoke the fact that it’s consent to be bound by a treaty had been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. A violation is manifested if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith |
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Who decides how a state can exercise ifs treaty making power |
The state itself |
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Who decides how a state can exercise ifs treaty making power |
The state itself |
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Which provision says that South Africa’s national executive had the responsibility of negotiating and signing international treaties |
S231 of the Constitutio |
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Who decides how a state can exercise ifs treaty making power |
The state itself |
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Which provision says that South Africa’s national executive had the responsibility of negotiating and signing international treaties |
S231 of the Constitutio |
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Why does SA ratify the treaties |
Provides the state with an opportunity to reconsider its decision to be bound |
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Is a state bound by a treaty that hs been signed but not ratified |
No |
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Is a state bound by a treaty that hs been signed but not ratified |
No |
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In which way can a state become a party to a treaty in whose negation it did not participate and which it did not sign |
By means of accession |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Who is responsible for treaties in SA |
Department of IR and cooperation |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Who is responsible for treaties in SA |
Department of IR and cooperation |
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How does a person prove he has full powers and can act on behalf of the state he represents |
Refers to document designating him as a authorised person unless he is in office where it is obvious that he enjoys this power such as heads of states, foreign ministers and heads of diplomatic missions |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Who is responsible for treaties in SA |
Department of IR and cooperation |
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How does a person prove he has full powers and can act on behalf of the state he represents |
Refers to document designating him as a authorised person unless he is in office where it is obvious that he enjoys this power such as heads of states, foreign ministers and heads of diplomatic missions |
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Reservation I.t.o article 2(1)(d) |
A reservation is a unilateral statement made by a state when entering into a treaty aim to exclude or to modify the legal effect of certain provisions of the treaty in its application to that state |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Who is responsible for treaties in SA |
Department of IR and cooperation |
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How does a person prove he has full powers and can act on behalf of the state he represents |
Refers to document designating him as a authorised person unless he is in office where it is obvious that he enjoys this power such as heads of states, foreign ministers and heads of diplomatic missions |
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Reservation I.t.o article 2(1)(d) |
A reservation is a unilateral statement made by a state when entering into a treaty aim to exclude or to modify the legal effect of certain provisions of the treaty in its application to that state |
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Who is a reservation applicable to |
Only applicable to the single state making it in its interaction with other states who consent to the reservation but can only be made when entering into the treaty and not later |
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Give an example of a treaty that would be open to accession |
The international Covenant of Civil and Political rights is open to accession because it wants more members to join |
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Who is responsible for drafting and negotiations of treaties |
The government responsible for foreign affairs |
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Who is responsible for treaties in SA |
Department of IR and cooperation |
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How does a person prove he has full powers and can act on behalf of the state he represents |
Refers to document designating him as a authorised person unless he is in office where it is obvious that he enjoys this power such as heads of states, foreign ministers and heads of diplomatic missions |
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Reservation I.t.o article 2(1)(d) |
A reservation is a unilateral statement made by a state when entering into a treaty aim to exclude or to modify the legal effect of certain provisions of the treaty in its application to that state |
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Who is a reservation applicable to |
Only applicable to the single state making it in its interaction with other states who consent to the reservation but can only be made when entering into the treaty and not later |
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What does a reservation alter |
It alters or changes legal effects of the relevant provisions this is where it differs from unilateral declarations which are energy interpretative |
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Is reservations applicable to the entire treaty |
No, only certain provisions |
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When is a reservation valid |
When a state, when signing, ratifying, accepting, approving or acceding to a treaty formulate a reservation |
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When is a reservation valid |
When a state, when signing, ratifying, accepting, approving or acceding to a treaty formulate a reservation |
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When is a treaty not valid |
When a reservation is prohibited by a treaty, the treaty provides that only specified reservations which do not include the reservation in question may be made(arctic sunrise case and article 15) and in cases not falling under the prior, the reservation is in compatible with the object and purpose of the treaty |
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What happens if a reservation is made but not valid |
The treaty will operate as if no reservation was made |
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How does article 2(1)(d) of the Vienna convention define a reservation |
A unilateral statement however phrased or named by a a state when signing, ratifying, accepting or acceding to a treaty whereby it purports to exclude or modify the legal effect of certain proof the treaty in their application to that states |
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Can a state become a party to a multilateral treaty while maintains a reservation |
Yes |
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