Essay Type Questions

Critically discuss the role of the UN Security Council in addressing the above situation. Also
consider whether conflict may arise between the UN Security Council and the AU should the AU
decides to intervene through enforcement action. Be sure to refer to relevant treaty provisions
and examples in substantiating your answer.

• The purpose of the UN according to art 1 of the UN Charter is to maintain international

peace and security.
o This entails taking effective collective measures for the prevention & removal of
threats to peace.
• The UN Security Council has the primary responsibility of maintaining international peace
and security.
• UNSC empowered to address disputes that do not threaten international peace (i.t.o Ch.
VII) but which will endanger maintenance of international peace should the situation
continue (arts 33 & 36, UN Charter)
• UNSC has power to
o investigate disputes that are likely to danger international peace and security (art34)
o call upon parties to settle their dispute through the means in art 33 (art 33(2))
o recommend appropriate methods of adjustment and appropriate terms of
settlements necessary to settle dispute.
• Art 52 of the UN Charter recognises existence of regional arrangements or agencies that
can play a role in maintenance of international peace & security.
o In the absence of military force - UNSC uses regional arrangements (like AU) for
enforcement actions authorised by it (art 53(1))
o Art 53 prohibits enforcement action by regional arrangements without UN
authorisation.
• Regional arrangements are required to keep UNSC ‘fully informed’ of their activities
undertaken for the maintenance of international peace & security (art 54)
• AU Constitutive Act does not envisage the AU’s supervision by the UNSC.
• Art 16 PSC Protocol provides that regional mechanisms have ‘the primary responsibility for
promoting peace, security and stability in Africa.
• Contrasts w/ art 17 of AU PSC Protocol on relationship w/ UN
o Acknowledges primary responsibility of UNSC & requires AU PSC to work ‘closely’ with
UNSC (art 17(1))
o Requires AU PSC & Chairperson of AU Commission to continuously interact with UNSC
(art 17(3))
• AU Common African Position on the Proposed Reform of the UN (The Ezulwini Consensus
2005)
o Acknowledges that regional interventions should be under UNSC approval BUT such
approval can be granted after the intervention had already begun where
immediate action was required.
• UNS-G High Level Panel Report on Threats, Challenges & Change 2004 (para 272)
o Regional organisation efforts should not contradict UN efforts & do not absolve UN of
its primary responsibility for peace & security.
o Authorization from the SC should be sought for regional peace operations (some
urgent situations that need authorization can be done after operations start)
In 2001, the United States (US) and the United Kingdom (UK) launched military attacks against
Afghanistan on the basis that the Taliban government allowed Al-Qaeda terrorists to operate
and train from its territory. The unlawful acts of Al-Qaeda terrorists were thus attributed to
Afghanistan by the US and UK in terms of the principles of state responsibility. Explain the form of
self-defence that the US and the UK relied on. Your answer should include a brief explanation of
the different types of self-defence recognised in the United Nations Charter, as well as a clear
identification of the relevant principles relating to them.

• States are permitted to use force in two circumstances.

o Under the authority of the UNSC acting under Ch VII UN Charter (arts 39-42 UN
Charter)
o In the exercise of the right of individual or collective self-defence under art 51 UN
Charter
• Requirements for actions taken in self defence → immediate; necessary; proportional
(Caroline case)
• Uses of force that can be used w/o UN authority.
o Self-defence; anticipatory self-defence; collective self-defence; defence of
nationals.
• Anticipatory self-defence → force justified against an attack that is imminent / foreseeable.
o Response to an imminent threatened attack that cannot be deflected by other
means.
o Requirements from UNS-G High Level Panel Report on Threats, Challenges & Change
2004
▪ Imminent & foreseeable threat
▪ Response should be proportionate.
• Pre-emptive self-defence → same as above but removes the requirement of imminence.
o Right of self-defence even if uncertainty remains as to the time & place of the
enemy’s attack.
• Preventative self-defence → Self-defence to prevent any possibility.
• Self-defence in terrorism → recognises the inherent right of self-defence in accordance with
UN Charter while condemning terrorist attacks.
o International terrorism is a threat to international peace & security.
• Collective self-defence → two or more states exercising the right of self-defence and it may
be exercised under art 51 w/o UN authorisation.
o Nicaragua stated that exercise of collective self-defence depends on
▪ Prior declaration by the State concerned that it was victim of an “armed
attack”.
▪ Request by victim state for assistance.
• Defence of nationals → right of state to use force to protect its nationals. (art 51 UN Charter)
o 3 conditions required by CIL:
▪ Imminent danger of injury to nationals
▪ Failure or inability on the part of the territorial State to protect the nationals.
▪ Measures of protection taken must be confined to protecting the nationals
against injury.
• Conclusion (self-defence in terrorism)
o Notified UNSC (on 7 October 2001) that together with other States, it has initiated
actions in exercise of its right of individual & collective self-defence following the
armed attacks carried out against USA on 9/11.
o Self-defence criteria has been given less weight in the context of terrorism.
International humanitarian law distinguishes between international armed conflict and non-
international armed conflict. Discuss the requirement of an armed conflict, the distinction
between international armed conflict & non-international armed conflict as well as the meaning
of this distinction for the punishment of war crimes in public international law.

• Principles of International Humanitarian Law applies in situation of war and armed conflict
• Definition
o International armed conflict (IAC) exists whenever there is a resort to armed force
between States.
o Non-international armed conflict (NIAC) exists whenever there is protracted armed
violence between government authorities & organised armed groups or between
organised groups within a State.
• Application of International Humanitarian Law
o IAC → from initiation of armed conflict & extends beyond the cessation of hostilities
until a general conclusion of peace is reached.
o NIAC → from initiation of armed conflict to when a peaceful settlement is achieved.
• An IAC can become a NIAC; a NIAC can become an IAC; both can exist alongside each
other in specific conflict situations.
• Geneva Convention and Additional Protocols provide for the punishment of those who
commit “grave breaches” of the conventions in IACs only (eg. those who commit war
crimes)
o State has extended this to NIAC where it is confirmed that CIL imposes criminal liability
for violations of law and customs of war in both NIAC and IAC.
o Categories of war crimes classified under NIAC & IAC is in Rome Statue, art 8.
• There is an application of human rights law in situations of armed conflict, whether IAC or
NIAC
o IHL & human rights law have different sources BUT both premised on respect for
dignity.
o Hence, both committed to respect for human rights in armed conflict.

Write a legal opinion in which you advise the Minister on: (a) The meaning of personal and
functional immunity; (b) The status of immunity in international law before national and
international courts, with reference to relevant case law, and how that relates to this scenario;
and (c) Whether and on what basis Arcadia has an obligation to arrest and surrender Merkel to
the ICC.

• Immunity constitutes an exception to jurisdiction by states & occurs where a foreign

sovereign, its property or its agents are involved.
• Personal Immunity
o Attached to status or office.
o Immunity for public and private acts
o Temporary – as long as the person is in office.
• Functional Immunity
o Immunity for acts performed in official capacity.
o No immunity for private acts – only to acts performed within official capacity.
o Permanent - Immunity does not lapse when person leaves office.
• Immunity and international courts
o Arrest Warrant case → no immunity for heads of states etc before international
criminal tribunals but there is immunity before national courts.
o International Courts are granted powers to set aside personal immunities.
 o International courts irt functional immunity
▪ Immunity generally persists when they are acting in their official capacity but
such immunity does not extend to serious international crimes.
o Argued that UNSC referral can set aside immunity (art 16 Rome Statute)
• Immunity and national courts
o CIL before Arrest Warrant recognized a rule that heads of state were precluded from
raising immunity as a defence in their trials or as a bar to jurisdiction (both
international and national courts)
o Pinochet → tried in national court but it was said that acts of torture are not functions
of the heads of state and therefore no immunity can be attached.
o Heads of state or state officials remain to benefit from personal and functional
immunity in domestic courts – no prosecution.
• Al-Bashir case
o President Al-Bashir had been indicted by ICC on charges of war crimes, crimes
against humanity and genocide.
o ICC requested that SA arrest him and ensure he does not leave the country
o Al-Bashir was allowed to leave SA because of two conflicting obligations (provide
immunity from arrest to all heads of state; arrest Al-Bashir and render him to ICC)
o Government’s failure to arrest and surrender Al-Bashir was unlawful and contravened
SA’s obligations under the Rome Statute & ICC Act.

Explain on what basis, if any, the United States, South Africa and the United Kingdom are entitled
to extradite Jessup and prosecute her crimes. With reference to relevant case law, discuss the
various principles of jurisdiction in international law and how they can be applied in the above
situation. Your answer should include a discussion of territoriality and nationality and determine
which of the two grounds of jurisdiction should be applicable.

• Jurisdiction refers to the state's authority to exercise governmental functions through

legislation, executive, and judicial decrees over persons.
• Aspects of jurisdiction
o Prescriptive jurisdiction (the state's authority to criminalize certain conduct) is
extraterritorial unless prohibited by rules.
o Enforcement jurisdiction (a state's ability to apply and enforce its criminal laws on
certain conduct) is territorial but can be extraterritorial if IL rules allow it.
• Jurisdictional principles
o Territoriality: state's exercise of jurisdiction over crimes committed within its territory
o Security: state's jurisdiction over foreigners for acts committed aboard that are
harmful to its safety and security
o Nationality: state's exercise of jurisdiction over its nationals for extraterritorial acts
o Passive personality: state's exercise of jurisdiction over an individual for offenses
committed abroad that harm its nationals.
o Universal jurisdiction: state's exercise of jurisdiction over crimes that violate the legal
order, without regard to other factors.
• Art 2(7) of the UN Charter prohibits foreign interference.
• Lotus → A state may not exercise its power in any form in the territory of another state unless
there is a rule that permits this.
• Approaches to territoriality
o Subjective territoriality: state's exercise of jurisdiction where a crime is commenced
within its territory & completed in another State.
 o Objective territoriality: state's exercise of jurisdiction where a crime is commenced in
a foreign State & completed within its territory.

The question of immunity for a sitting Head of State’s spouse recently raised some controversy in
South Africa. Critically discuss whether a spouse of a sitting Head of State is entitled to
immunities under international law and South African law. In your answer, refer to relevant
international law principles, provisions of South African law, and case law.

• Relevant case: Grace Mugabe case

• There is no principle of CIL to automatically extend head of state immunity from prosecution
to spouse or family member.
• Court stated that Mugabe nor Grace Mugabe would have enjoyed immunity in terms of
s.6(a) Foreign States Immunities Act
• By recognising immunity for Grace Mugabe (through reliance on s.7(2) Diplomatic
Immunities and Privileges Act, which grant the Foreign Minister powers to confer immunity in
the interest of the Republic), the Minister of DIRCO committed a ‘fundamental & fatal’ error
in law
o Minister’s decision inconsistent with the Constitution

The concept of international customary law raises question w.r.t the issue of state consent.
Discuss custom as a source of PIL, which focus on the notion of persistent objector.

• Definition → ‘evidence of a general practice accepted as law’ (art 38(1)(b) ICJ Statute)
• Elements → Settled/State practice or Usus (conduct element); Opinio juris (mental element)
o Both elements confirmed in Continental Shelf case.
• Settled practice (usus)
o Passage of time is required to quality practice as custom.
o Practice must constitute constant and uniform usage.
• Opinio juris
o Settled practice on its own does not create a rule of CIL; the belief that a State
activity is legally obligatory is the factor that turns the usage (State practice) into a
custom & makes it part of the rules of IL (North Sea Continental Shelf)
o Opinio juris may be deduced from State’s attitude towards UN resolutions.
• Persistent objection
o A State opposing the existence of a custom from its inception (formative stages)
would not be bound by it (S v Petane)
o Persistent objector not legally bound when the rule becomes CIL and immunity lasts
as long as they continue to object.
o Objections of a few persistent objectors will not prevent rule from being binding rule
of IL unless there are many then they can block the rule.
 Short Questions
Critically discuss the two theories that apply to the relationship between international law and
municipal law. Provide an evaluation on how states apply these theories. Provide examples to
support your argument.

• Monism:
o IL and national law are an expression of a single conception of law.
o IL becomes part of national law upon ratification.
o National courts are required to apply IL rules directly (no need for adoption or
transformation)
• Dualism:
o IL and municipal law are completely different systems of law.
o They differ i.t.o subjects, sources, and substance.
o IL may be applied by domestic courts if "adopted" by courts or transformed to local
law through legislation.

What triggers the application of Chapter VI and Chapter VII of the UN Charter to a particular
situation?

• Chapter VI
o UNSC empowered to address disputes that do not threaten international peace (in
terms of Ch. VII) but which will endanger maintenance of international peace should
the situation continue (arts 33 & 36, UN Charter
• Chapter VII
o ‘The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or
decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.’

With reference to relevant case law, can a treaty body assess the validity of a reservation to a
treaty? In this context, explain the meaning of the ‘Permissibility’ and ‘Opposability’ schools.

• Reservation → unilateral statement that purports to exclude or modify the legal effect of
certain provisions of a treaty in its application to a State (art 2(1)(d) VCLT)
• A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless ((art 19 VCLT))
o (a) the reservation is prohibited by the treaty;
o (b) the treaty provides that only specified reservations, which do not include the
reservation in question may be made’;
o (c) the reservation is incompatible with the object and purpose of the treaty’
• Permissibility school → If incompatible with the object & purpose of the treaty such a
reservation is invalid & void, without requiring an objection by a State (art 19 VCLT)
• Opposability school → Reservations expressly authorised by treaties do not require any
subsequent acceptance unless the treaty so provides (art 20 VCLT); acceptance is assumed
if no State objects to a reservation within one year of the notification of the reservation (art
20(5) VCLT)
Identify three jurisdictional bases that the Implementation of the Rome Statute of the
International Criminal Court Act (ICC Act) gives effect to in relation to international crimes
committed outside of South Africa.

• Nationality principle (ICC Act – s4(3)(a)&(b))

• Passive personality (ICC Act – s4(3)(d))
• Universal Jurisdiction (ICC Act – s4(3)(c))

What does the Rome (ICC) Statute say about the immunity of heads of state/senior state
officials? Name the relevant article number of the Rome Statute.

• Art 27 Rome Statute → no immunity before ICC irrespective of status

• S4(2)(a) ICC Act → excludes immunity for heads of state or government for international
crimes.

According to art 38(1) of the Statute of the International Court of Justice, what are the sources of
public international law? Give one example of each source referred to in the article.

• International conventions → treaties

• International custom → general practices accepted as law.
• General principles of law recognized by civilized nations → general principles accepted as
law.
• Judicial decisions → case law and academic writing

What does restricted or qualified immunity mean?

• Many states support a doctrine of restricted or qualified immunity, according to which

immunity from the jurisdiction of municipal courts will be granted
o Immunity for governmental activities – acts jure imperii
o No immunity for commercial activities – acts jure gestionis
• A foreign government which enters into an ordinary commercial transaction with a trader
must honour its obligations like other traders: and if it fails to do so, it should be subject to the
same laws and amenable to the same tribunals

Briefly explain the meaning of the concept of universal jurisdiction, and whether the ICC Statute
confer this type of jurisdiction to its state parties.

• States’ exercise of jurisdiction over crimes that violate the international legal order, without
regard to where the crime was committed, the nationality of the perpetrator, the nationality
of the victim, or any other connection to the State exercising such jurisdiction.
• Jurisdiction is based solely on nature of the crime → an international crime.
• Note that Rome Statute does not confer universal jurisdiction.

What are the main United Nations organs that are charged with the task of maintaining
international peace and security?

• Security Council
• General Assembly
Name the main case dealing with the right to self-defence.

• Caroline or Nicaragua

What is the difference between jus ad bellum and jus in bello?

• Jus ad bellum → When a state may go to war.

• Jus in bello → Principles that apply to the treatment of combatants and civilians during the
course of war.

Name the group/s that is/are protected by the Fourth Geneva Convention, and which article of
this Convention would apply to an armed conflict not of an international character?

• Convention relative to the protection of civilian persons in time of war

• AP II

Give the names of the UN Secretary-General and the AU Commissioner.

• Antonio Guterres (UN)

• Moussa Faki (AU)

Comment on whether or not the actions of the United Nations Security Council under Chapter
VII of the UN Charter should be subject to review?

• UNSC powers under Ch. VII are quite wide.

• UNSC powers to make relevant determinations under Ch. VII though absolute.
o Are limited by inherent notions of good faith & non-abuse of rights.
o Must be guided by principles & purposes of UN Charter

What do you understand by a treaty ? Define and discuss various classifications of treaties.

• Definition → an international agreement concluded between States or between States and

international organisations, in written form and governed by IL that is embodied in a single
instrument or two related ones.
• Contractual Treaties → govern state matters such as trade.
• Legislative Treaties → codify existing rules of CIL or create new ones.
• Constitutional Treaties → multilateral treaty that creates a constitution for an international
organisation or body that they establish.