EXAM PREP SISA &ANESU PUBLIC

INTERNATIONAL LAW

Question 1

Read the following account very carefully and answer the question that follows.
Please NOTE that extra marks will be given for clarity of arguments and the use of
appropriate instruments and jurisprudence.
In July 2019, the government of Amazor declared that in the coming years, it will
increase its electricity supply by switching to nuclear powered generators. This
caused a bit of uneasiness among its neighbours, the Republic of Konki, Bendera
and the Kingdom of Yasmin, because Amazor was believed to have sponsored acts
of terrorism in the past. The Republic of Konki has a nuclear weapons program while
the Kingdom of Yasmin and Bandera do not. However, Bandera’s economy is heavily
reliant on agriculture and particularly dairy farming. Yasmin’s mainstay is oil which is
found in the Bay of Allhila which Yasmin shares with Amazor. It is the oil revenue
from the Bay of Allhaila that Amazor hopes to use to finance its so called nuclear
power project. The relationship between Amazor and the Kingdom of Yasmin is far
from being cordial mainly because of a long lasting boundary dispute over the Bay.
In December 2019, the Minister of foreign affairs in the Republic of Konki announced
at a World Press Conference that his country had discovered that Amazor was not
interested in electricity generation and that its nuclear project was solely aimed at
boosting its military capability in the Bay. The Minister announced that unless Amazor
stopped its programme and opened its facilities for international inspection by March
2020, the military forces of the Republic of Konki would be ordered to demolish all
the nuclear facilities in Amazor. Amazor has denied the accusations and has warned
that any attempt at violating its territorial integrity will be repulsed by force. Amazor
has not stopped its nuclear program despite the threat. It is believed that Republic of
Konki did not carry out its threat of military action because of the Covid 19 pandemic.
However as soon as the pandemic is over, it is believed that Konki armed forces may
attack Amazor.
(a) Last month, the government of Amazor arrested two people, believed to be
citizens of the Kingdom of Yasmin. It alleged that they were military officers
sent by Yasmin to spy on their defence installations. The two were hurriedly
tried and publicly executed. Amazor claimed that they acted in self-defence.
Yasmin on the other hand has protested the action and assembled its forces
along its border with Amazor. A few days ago, there were reports of rockets

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 fired from Yasmin into the territory of Amazor, destroying schools and killing a
handful of civilians. Amazor would like to approach the International Court of
Justice (ICJ) on the ground that Yasmin is acting contrary to article 2 of the
United Nations Charter. Assume that you are a legal adviser in the Amazor’s
Ministry of Foreign Affairs. Write an opinion advising the government on the
merits of its case against Yasmin.
(15)
(b) In your view, what is the responsibility of Amazor and the Republic of Konki,
as far as international law is concerned, towards the maintenance of
international peace and security.
(10)
[25]

Question 2

To what extent does the Constitution of South Africa allow for the application of
international law in domestic courts? Illustrate your answer by reference to relevant
provisions of the Constitution and jurisprudence
[15]

Question 3

Discuss the circumstances under which an internationally wrongfulness conduct may

be attributed to a state under international law
[10]

Question 1

(a) There is an uprising in the Kingdom of Kudu. The youths have revolted against
the regime of their monarch, King Ezebi Babu, and they have vowed to
overthrow the monarch and replace him with a democratically elected
government. The youths, having mobilised professionals and other segments
of society, are holding daily demonstrations in the streets of Jola, Kudu’s
capital.

After days of demonstrations, King Babu became tired of them. As a result, he sent
his elite military to the streets to whip the “cockroaches and rats” back to their
homes. Following the military action several demonstrators died and some
sustained serious injuries. Five neighbouring states, fearing that the situation
might deteriorate further, formed themselves into a “coalition of the willing” and
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 sent a joint military force into Kudu to “protect the civilian population”.
However, the coalition forces went to the King’s palace and placed him under
confinement. The coalition forces have also announced that they will not leave
Kudu unless there is a peaceful democratic election and Babu is removed from
office democratically.

You are a senior official of King Babu’s government tasked with preparing a case to
be filed against the “coalition of the willing” countries at the International Court
of Justice (ICJ). Write a concise memorandum discussing the violations of
international law, or international crimes, committed against the Kingdom of
Kudu over which the ICJ may exercise jurisdiction.
(25)

(b) When is an entity considered to be a state under international law? Support

your answer with contemporary examples.
(10)

[35]

Question 2

(a) Discuss the way(s) in which the Charter of the United Nations (1945) enables
the United Nations and its organs to achieve “international cooperation in
solving international problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights”, as set
out in article 1(3) of the Charter.
(15)

(b) To what extent has the United Nations and its organs achieved the purpose
you have discussed in (a) above? Use contemporary examples to support your
arguments.
(10)

(c) Describe the essential elements of the doctrine of Rebus sic Stantibus as
applied in the law of treaties.
(10)

[35]

Question 3

(a) Malombo Malombe, the president of the Republic of Terror, came to power
through a bloodless coup four years ago. A year into his reign, he formed a
secret police unit called Mayo Mayo to investigate and punish the enemies of
the Republic. According to reports by human rights groups, Mayo Mayo has
been responsible for the disappearances of opposition politicians and civil
society activists who openly criticise Malombe. There has also been
widespread torture of those violating the regime’s draconian decrees against

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 public demonstrations. Last year, Malombe moved a unit of the Mayo Mayo
into a neighbouring state, the Republic of Calm. The unit abducted women and
children from the Republic of Calm and brought them into Republic of Terror.
The Republic of Calm brought the matter to the UN Security Council, which
then proceeded to refer the matter to the International Criminal Court for
investigation under Article 13(a) of the Statute of the International Criminal
Court. Although the Republic of Terror has not ratified the Rome Statute, the
International Criminal Court (ICC) accepted the referral and commenced
investigations. Recently, the Prosecutor of the ICC announced that he had
indicted Malombo Malombe on charges of war crimes and crimes against
humanity and that he would be seeking an arrest warrant. Malombo Malombe,
in a public broadcast to the nation immediately after the Prosecutor’s
announcement, declared that his government would not honour any arrest
warrant issued by the ICC on the grounds that the Republic of Terror was not a
signatory to the treaty and that he was entitled to immunity under international
law. He also stated that, if need be, his government would contest the
admissibility of the case before the ICC. Alternatively, he would explore a
political solution to the “ICC problem” through the UN Security Council.

Question 3 (continues overleaf)

With reference to the relevant provisions of the Rome Statute of the International
Criminal Court and the United Nations Charter, critically examine the merits or
otherwise of Malombo Malombe’s claim.
(25)

(b) When does a rule qualify as customary international law?

(10)

[35]

END OF THE EXAMINATION PAPER

Question 1

(a) Illustrate briefly the extent to which the constitution of South Africa permits municipal
courts to apply international law.
(20)

(b) In what circumstances can a state be denied the right to raise reservations to a treaty?
(10)

(c) In your view, what are the impediments to the fulfilment of the promise of international
human rights in South Africa and how could such impediments be overcome?
(5)

[35]

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 Question 2

(a) Piracy in the Horn of Africa and elsewhere in the continent have shown no signs of
abatement despite various political efforts to eradicate it. Discuss the rules of
international law that are applicable to piracy and show why they have not been useful
in combating piracy off the coast of Somalia.
(20)

(b) Briefly explain the doctrine of jus cogens and demonstrate why it is useful in the
enforcement of international human rights standards
(10)

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Public International Law – June 2011 Page 1 of 2

Question 3

(a) Two years ago, the Democratic Republic of Zamunda, a small country in East Africa, held
its presidential and parliamentary elections. Immediately after the election results were
announced, and the incumbent president, Miser Matata, was declared president, there
was widespread revolt in which hundreds of people were killed and thousands
displaced. The revolt was as a result of the wide perception that Miser Matata had
manipulated the results against the opposition leader, Mabuso Kiko. Due to
international pressure, the two leaders agreed to a power-sharing arrangement, and
that brought the violence to a stop. Also, the leaders agreed that the perpetrators of the
violence were to be brought to book, either in a specially constituted local tribunal, or be
referred to the International Criminal Court (ICC), at The Hague. Efforts to establish a
local tribunal failed, and the matter was then referred to the ICC. The ICC conducted
investigations and as a result, indicted several key Ministers from President Miser
Matata’s party. These ministers have been summoned to appear at the ICC to answer
charges for war crimes and crimes against humanity, and in accordance with the ICC
Statute.

You have been approached by Miser Matata to advise Zamunda government in this matter.
The President clearly does not want the matter to proceed at The Hague, because
Zamunda is a “sovereign state” and should be trusted to deal with its own problems. He
has indicated to you that he is now ready to rally his party members in support of a local
tribunal. Having regard to the Rome Statute on International Criminal Court, write an
opinion outlining the options available to Zamunda in its bid to stop the ICC process.
(25)

(b) Discuss the rules for interpretation of treaties as provided for in articles 31 and 32 of the
Vienna Convention on the Law of Treaties.
(10)

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 END OF THE EXAMINATION PAPER

ANSWER ALL THE QUESTIONS

Question 1

When the Republic of Bambuzo obtained its independence in 1984, Dr Ripper

Resources (RR) became its first president. He immediately instigated the
amendment of the Constitution to remove the presidential term limits and ruthlessly
dealt with all opposition politicians. Last year, the key opposition politician was
arrested and severely beaten and detained without trial. RR then abolished
opposition parties and put all vocal opposition supporters in jail. On a live broadcast
to the nation, RR revealed that the opposition leaders were puppets of the former
colonial masters, and therefore enemies of Bambuzo. These events sparked a series
of condemnation from the international community. Stinging criticism also came from
Balotu, a neighbouring state which subsequently closed its borders. RR reacted by
severing diplomatic ties with a dozen states including Balotu, and claimed that his
country would be ready to defend its ‘democracy’ with blood. Thereafter, RR began a
series of purges against internal enemies by unleashing the police and the army
against ethnic groups that were perceived to be opposed to his rule. In Njema, a
province where a prominent leader of the opposition had come from, about 25 000
people were murdered in one clean sweep by the government soldiers in 1991.
RR has declined to hold elections. He has instead conducted a series of manipulated
plebiscites confirming the people’s faith in his government. With sanctions and the
general hostility towards RR’s government, the economy of Bambuzo has collapsed.
The general infrastructure has decayed and the provision of public services has
completely come to a halt. Diseases are ravaging the people of Bambuzo as well as
famine. The school system has also collapsed and youths are roaming the streets of
big towns stealing whatever they can lay their hands on and raping women. There
are rumours that a group of rebels opposed to RR’s government are forming in
Balotu in readiness to attack Bambuzo.

Recently, soldiers of the Bambuzo Defence Forces pursued some insurgents into
Balotu and some shots were fired killing women and children. Balotu responded by
sending its troops across the border to attack Bambuzo’s military positions.
Bambuzo has referred this matter to the United Nations Security Council, accusing
Balotu of violating international law and the principles of the UN Charter.

Assume that you are the representative of Balotu at the Council. Write a legal
opinion supporting Balotu’s actions. In your opinion, analyse the principles of
international law affecting the use of force as well as applicable jurisprudence of the
International Court of Justice (ICJ).

[25]

Question 2

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When Mbombo Katu was campaigning to become President of the Peoples Republic
of Tek (PRT), she promised that her government was going to strengthen the
country’s legal system by domesticating international legal standards. In many
political rallies before her election she promised that if elected her government was
going to ratify all key international treaties. She was vocal about human rights and
especially rights of women and vowed to eliminate the country’s strong African
traditions that denied women equal treatment to men. After Mbombo Katu won the
elections and became the first female President of PRT it was widely expected that
PRT would ratify the International Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), a treaty that previous governments had
largely ignored. However, the House of Traditional Leaders, a powerful body of all
tribal chiefs in PRT, issued a strong statement that they would lobby for Mbombo
Katu to be impeached should her government ratify CEDAW.

The president, concerned about the possible political ramification of ratifying

CEDAW, has entrusted her Minister for Justice to consult widely on the matter and
suggest appropriate measures in line with the government objective to ratify the
treaty. The Minister is aware of the possibility of ratifying the treaty with reservations
and thinks that this is one way in which the government could strike a balance
between attaining ratification of CEDAW and addressing the concerns of the House
of Traditional Leaders. He has sought your advice on the matter. Write an opinion on
the law of reservations focusing on the extent to which the law allows for
reservations on multilateral treaties.

[25]
Question 3

With reference to article 1 of the United Nations Charter 1945, write a reasoned
opinion on whether international law has achieved its objectives in relation to the
advancement of peace and elimination of the scourge of war. Your opinion should
only deal with the legal and institutional frameworks established under the Charter.

[20]

Question 1

(a) The Republic of Wind is supporting an internal rebel organisation fighting

against the state of Water. The rebel organisation’s aim is to overthrow the
government in the state of Water. Over a span of about five years, the Republic
of Wind has provided money, training and even asylum to members of the rebel
organisation. During this time, the rebel organisation has been responsible for
abductions, displacements, and the bombing of schools and marketplaces that
have resulted in deaths and injury of innocent people, mainly women and
children. The State of Water now wishes to bring a claim (at the International
Court of Justice) for compensatory remedy against the Republic of Wind on the
grounds that all the acts committed by the rebels should be attributed to the
Republic of Wind.

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 Discuss the rules of attribution as set out in the Articles for Responsibility of
States for Internationally Wrongful Acts, and advise the State of Water on the
merits of their claim.
(20)

(b) Under what circumstances can a state’s “wrongfulness” be excluded under

international law? Use contemporary examples to illustrate your answer.
(15)

[35]

Question 2

Jane, a citizen of Ofamo, went to study at the University of Rerogo in the Kingdom of
Puntaland. While there, she was arrested by Rerogo police officers on charges of
engaging in unlawful demonstration on 20 April 2011 contrary to General Police
Regulation (GPR). The Regulation requires that all “demonstrations or gatherings of
a public nature” occurring within the Municipality of Rerogo must be licensed by the
Office of the Monarch. The 20 April demonstration had been organised by the
Freedom Plus December 12 Movement (FPD12) that had been agitating for the
removal of the monarchy and the restoration of democracy in the Kingdom of
Puntaland. Jane’s case was taken before the Municipal Police Board of Rerogo, as
required by the Regulation, and she was sentenced to 2 months imprisonment. The
Municipal Board is a police body that is chaired by the commandant. It carries out its
proceedings very quickly and the presence of the suspect (ie the accused) is not
required. Section 51(2) of the GPR provides that if the Police Board considers that
the facts have been established, and that the available information about the
personal situation of the offender is sufficient, it may take its decision without
summoning the person concerned to appear before it. Jane did not participate in the
trial.

She lodged an application for review to the High Court in Rerogo. On appeal she
claimed that, in view of the requirement of art 26 of the Lower States Human Rights
Convention, the Municipal Police Board had no power to make a determination on
the disputed offence because it was not impartial and lacked independence. Article
26 enshrines the right to a fair hearing by an independent and impartial tribunal
established by law. It provides:
“In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law… .”

The High Court dismissed her appeal on the grounds that the Kingdom of Puntaland
had entered a reservation against the Convention. The court found that, on
submitting its instruments of ratification to the Lower States Human Rights
Convention five years ago, Puntaland stated:

“The Royal Kingdom of Puntaland considers the guarantee of a fair trial in article 26
of the Convention, in determination of any criminal charge against any person, shall
only apply in cases where the matter is before the judiciary and not in any
adjudication before administrative bodies”.

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[The papers she lodged in court did not dispute (perhaps erroneously) the fact that
an administrative body such as the Police Municipal Board should have authority to
determine criminal matters and so the court did not consider this issue]. After the
Supreme Court decided the matter, Jane was moved to a notorious transit prison
outside Rerogo where most inmates are known to die in their first month of
incarceration.

Her appeal to the Supreme Court of Puntaland was dismissed on the same grounds.
In the Court’s view, the scope of art 26 of the Convention must be examined in the
light of Puntaland’s statement of reservation, according to which the guarantee of fair
trial in art 26 of the Convention, is intended solely to ensure ultimate protection of the
rights of accussed persons facing charges before Puntaland’s courts. Moreover, the
court observed, “the chances of an administrative decison being referred to courts
for review of its lawfulness, is high and therefore any guarantees by the Convention
are ultimately upheld”.

Jane’s lawyers have now brought the matter before an international human rights
tribunal that has jurisdiction under the Lower States Human Rights Convention
claiming that their client’s rights under art 26 of the convention have been violated.
They are also seeking ‘provisonal measures’ that would result in Jane’s release from
prison.

You are judge in the tribunal and you have heard both sides of the case. Write a
reasoned judgment on the merits of the case.

[35]

Question 1

(a) In early February 2013, the police in Republic of Sud Sud arrested twenty
individuals alleged to have been training in its territory to overthrow the lawfully
elected government of the Kingdom of Plenty. The training was being
conducted by Boom, a local private military/security company licensed under
the relevant Sud Sud’s legislation. The suspects, who turned out to be rebels
from the Kingdom of Plenty, were arraigned in court and charged under
relevant criminal laws. There has been no report of the arrest of the directors of
Boom, but they have announced that they were neither aware of the status of
the arrested individuals nor that they were planning to overthrow a foreign
government. They have also claimed that Boom is not a mercenary outfit but a
legitimate business licensed under the laws of Sud Sud. The Kingdom of
Plenty has denied this allegation by Boom. Instead, it has asserted that the
conduct of the rebels and the directors of Boom amounted to mercenary acts
under the AU/OAU Convention for the Elimination of Mercenaries in Africa, and
other related international treaties to which Sud Sud is a party. (For the
purposes of this question assume that Sud Sud is a party to all the treaties,
and that both Sud Sud and the Kingdom of Plenty are African countries and
members of the African Union.)

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 The Attorney General of the Kingdom of Plenty has requested you to prepare a
written opinion on whether the Directors of Boom and the rebels can be treated
as mercenaries under the Convention for the Elimination of Mercenaries in
Africa and other relevant international treaties. Analyse how treaty law defines
mercenary acts and the responsibility that states have in dealing with such
acts.
(20)

(b) Critically analyse the arguments that support the view that international law is
not law and state why you agree or do not agree with these arguments. Your
views should be supported by contemporary examples
(15)

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Public International Law – June 2013 Page 1 of 2

Question 2

(a) Having regard to the decision of the Constitutional Court in Glenister v

President of Republic of South Africa & Others 2011 (3) SA 347 (CC), discuss
the rules of the Constitution of the Republic of SA, 1996 that govern the
application of international law in domestic courts in South Africa.
(15
)

(b) Discuss, using contemporary examples, the acts by which a state signifies its
willingness to be bound by a treaty?
(10
)

(c) Discuss the two requirements that a custom must meet for it to become a rule
of customary international law
(10
)

[35]

Question 3

(a) The Mbeja Mbeja rebels, aided by soldiers from Lesion, a European country,
overran the capital of Talbut and arrested President Langoma. Thereafter the
International Criminal Court immediately claimed jurisdiction and requested the
incoming government, led by Bravo, the rebel commander, to hand over
Langoma to The Hague. According to investigations conducted by the
International Criminal Court, Langoma was responsible for mass killings and
rape during his military campaign against the Mbeja Mbeja rebels. However,

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 Bravo has instead transferred Langoma to Lesion to face charges of sexual
harassment, an offence he allegedly committed more than a decade ago when
he was a student there.

You work for the Office of the Prosecutor of the International Criminal Court at The
Hague and your boss has asked you to draft a memorandum advising her how
to secure Langoma’s arrest and appearance before the court. Basing your
arguments on the Rome Statute of the International Criminal Court, write a
legal opinion detailing the duty and responsibilities of the Office of the
Prosecutor, and the responsibility of state parties regarding arrest and delivery
of suspects to the court. (For purposes of this question assume that Lesion is a
state party to the Statute of the International Criminal Court and Talbut is not.)
(25
)

(b) States are generally permitted to enter reservations when signing or ratifying
treaties, except under limited circumstances provided for in article 19 of the
Vienna Convention on the Law of Treaties. Discuss these limitations using
case law.
(10
)

[35]

END OF THE EXAMINATION PAPER

Question 1

(a) When Mbombo Katu was campaigning to become President of the People’s
Republic of Tek (PRT), she promised that her government was going to
strengthen the country’s legal system by domesticating international legal
standards. In many political rallies before her election she promised that, if
elected, her government was going to ratify all key international human rights
treaties. She was vocal about human rights and especially rights of women
and vowed to eliminate the country’s strong African traditions that denied
women equal treatment to men.

After Mbombo Katu won the elections and became the first female President
of PRT, it was widely expected that PRT would ratify the International
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), a treaty that previous governments had largely ignored. However,
the House of Traditional Leaders, a powerful body of all tribal chiefs in PRT,
issued a strong statement that they would lobby for Mbombo Katu to be
impeached should her government ratify CEDAW.

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 The president, concerned about the possible political ramification of ratifying
CEDAW, has entrusted her Minister for Justice to consult widely on the
matter and suggest appropriate measures in line with government objectives
to ratify the treaty. The Minister is aware of the possibility of ratifying the
treaty with reservations, and thinks that this is one way in which the
government could strike a balance between attaining ratification of CEDAW
and addressing the concerns of the House of Traditional Leaders. He has
sought your advice on the matter.

Write an opinion on the law of reservations focusing on the extent to which

the law allows for reservations on multilateral treaties.
(20)
(b) Discuss the rules for interpretation of treaties as provided for in articles
31 and 32 of the Vienna Convention on the Law of Treaties.
(15)

[35]

Question 2

(a) Godi and Siri, nationals of Bongo, an African country, have been granted refugee
status in South Africa. A few months ago, they fled to Namibia to escape
xenophobic attacks. The Namibian Government, however, decided to deport
them to their country of origin via OR Tambo airport because they were not in
possession of valid travel and residency documents. At OR Tambo, the airport
authorities confine them to the airport’s inadmissible facilities while awaiting
their flight to Bongo.

Godi and Siri are members of the Bongo Association in South Africa. The
Officials of the Association have sought your opinion on how the two can
regain their refugee status in South Africa. Note that when the Officials of the
Association approached the Department of Home Affairs, one junior officer
informed them that any application by Godi and Siri will be rejected on the
grounds that they are deportees from another state (Namibia) and are
currently in a facility at the airport over which the Department has no
jurisdiction.

With reference to cases and international instruments, write a legal opinion

advising the Association.
(20)

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(b) Discuss the circumstances under which wrongfulness on the part of a state may
be precluded under international law.
(15)

[35]

Question 3

(a) Three years ago, John Tembo led an internal revolution that toppled the
democratically-elected government of the Republic of Dongoland. Since then,
all political leaders have been sent to jail and all businesses appropriated by
Tembo and his cronies. As a result, the economy of the country has
completely collapsed. All public services have been terminated to allow the
government to concentrate its resources in improving the military. Because of
poor conditions, disease and lack of employment, many citizens of
Dongoland have fled to the neighbouring Republic of Plentiland. Recently
some of these immigrants have formed an opposition party and are calling on
the international community to help them restore democracy in Dongoland.
When John Tembo heard of this, he organised a discreet military incursion
into the Republic of Plentiland and forcefully abducted the leader of the group
and a dozen of his supporters. The abductees are now being held in a
military base in the heart of Dongoland. However, during the operation, about
ten citizens of Plentiland were shot dead. Meno Waziri, the president of
Plentiland has called this an act of aggression and has promised that military
action will be taken against John Tembo’s government to seek retribution and
“help restore democracy in Dongoland”.
You are a legal expert in the Ministry of Foreign Affairs of the Republic of
Plentiland. Your Minister has given you the text of President Meno Waziri’s
speech and asked you to write a memo advising the presidency of the
appropriateness of his intended action under international law. Write this

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 memo taking guidance from the jurisprudence of the International Court of
Justice, the United Nations Charter and other regimes of international law
(20)

(b) Discuss the rules that guide courts in South Africa when they apply
international law to resolve domestic disputes.
(15)

[35]

END OF THE EXAMINATION

Question 1

(a) Enumerate the acts by which a state signifies its willingness to be bound by a
treaty.
(10)

(b) Can a treaty create rights or impose obligations on “third parties”?

(10)

(c) Under what circumstances may states invoke the doctrine of Rebus sic Stantibus
to support their termination of a treaty?
(10)

(d) State A makes a reservation which is accepted by State B but objected to by State
C. What is the legal relationship established by the treaty as between State A and
B; State A and C; and State B and C.
(5)

[35]

Question 2

Read the following account very carefully and answer the questions that follow. Please
NOTE that credit will be given for clarity of arguments and the use of appropriate
instruments and jurisprudence.

Three years ago, John Tembo led an internal revolution that toppled the democratically
elected government of the Republic of Dongoland. Since then, all political leaders have
been sent to jail and all businesses appropriated by Tembo and his cronies. As a result,
the economy of the country has completely collapsed. All public services have been
terminated to allow the government to concentrate its resources on improving the
military. Because of poor conditions, disease and lack of employment, many citizens of

14 | P a g e
Dongoland have fled to the neighbouring Republic of Plentiland. Recently, some of
these immigrants have formed an opposition party and are calling on the international
community to help them restore democracy in Dongoland. When John Tembo heard of
this, he organised a discreet military incursion into the Republic of Plentiland and
forcefully abducted the leader of the group and a dozen of his supporters. The
abductees are now being held in a military base in the heart of Dongoland. However,
during the operation, about ten citizens of Plentiland were shot dead. Meno Waziri, the
President of Plentiland, has called this an act of aggression and has promised that
military action will be taken against John Tembo’s government to seek retribution and
“help restore democracy in Dongoland”.

(a) You are a legal expert in the Ministry of Foreign Affairs of the Republic of
Plentiland. Your Minister has given you the text of President Meno Waziri’s speech
and asked you to write a memorandum advising the presidency of the
appropriateness of his intended action under international law. Write this
memorandum relying on your knowledge of international law, especially the UN
Charter and the jurisprudence of the ICJ.
(20)

(b) Assume that you are a legal expert of an esteemed human rights group and
representatives of the abductees have approached you. What would be your
advice with regard to possible legal action under the human rights umbrella?
(15)

[35]

Question 3

(a) Briefly discuss three attributes of a state under the Vienna Convention on the Law
of Treaties.
(5)

(b) When does a rule qualify to become “international customary law” as defined
under article 38 of the Statute of the International Court of Justice. (Use case law
to illustrate your answer.)
(10)

(c) How does the right to self-determination accrue under international law?
(10)

(d) To what extent can South African courts apply international human rights law?
(10)

[35]

END OF THE EXAMINATION PAPER

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 In Kolbatschenko v King NO 2001 (4) SA 336 (CPD), the court acknowledged
that:

“South African courts have refused to evaluate decisions or actions in the

realm of foreign relations involving issues of a ‘high executive nature’ ... [s]uch
decisions usually involve the relationship between the South African State and
the foreign State concerned, directly affecting the interests of such States as
States, and are often of so ‘political’ a nature that the courts have ‘no judicial
or manageable standards’ by which to judge them”.

Per Thring J and Van Heerden J at 356 para G-I. Emphasis in the original.

With particular reference to the above dictum, applicable provisions of the

Constitution of the Republic of South Africa of 1996 as well as relevant
international case law, write an essay in which you examine critically how the
Constitutional Court engages with Public International Law by comparing and
contrasting at least two more of its judgments, one of which must be Glenister
v President of the Republic of South Africa 2011 (3) SA 347 (CC).
[20]

NOTE:

 FOR Attribution = Genocide case (Bosnia v Serbia & Montenegro)

(Effective control test); Rainbow Warrior; Nicaragua v USA; Tadic
(Overall control test); DRC v Congo(Effective control test); USA v Iran

 Circumstances precluding wrongfulness = Construction of a Wall;

Caroline; Gabikova-Nagymaro’s Project

 Use of Force Article 2(4) of the UN Charter

 The Prohibition on the Use of Force and the Right to Self-Defence Article
51 of the UN Charter; Caroline; Nicaragua v USA; Legality of the Threat
or Use of Nuclear Weapons (Advisory Opinion); DRC v Uganda;
Construction of a Wall

 The Doctrine of Humanitarian Intervention and the Responsibility to

Protect - Kosovo

 The Use of Force in Kuwait in 1991 and in Iraq in 2003

 The Use of Force in Afghanistan in 2001

 Use of Force in Libya in 2013

 The Situation in Syria 2011-2014

 Intervention in Internal Armed Conflict Nicaragua

16 | P a g e
  Reservations - UK v Libya; DRC v Congo; Advisory Opinion on
Genocide (Object & Purpose Test)

 Justifications for Use of Force:

UNSC decision under chapter VII of the Charter [Treaty] Self- Defence
[Art 51 of Charter and Customary Int Law (Nicaragua case)]
Humanitarian Intervention [Perhaps part of Customary Int Law]
Responsibility to Protect [Customary Int Law]

The Law on the Use of Force

What do Articles 2(4) and 51 of the UN Charter provide?

Article 2(4) – the threat or use of force against the territorial integrity or
political independence of another State or in any other manner
inconsistent with the purposes of the United Nations is prohibited.

Article 51 – the Charter recognises the inherent right of individual or

collective self-defence if an armed attack occurred. What are the two
requirements of the law on self-defence?

The submission of the exercise of the right of self-defence to the

conditions of necessity and proportionality is a rule of customary
international law.

There is a specific rule whereby self-defence would warrant only

measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law.

The dual condition applies equally to Article 51 of the Charter, what the
means of force employed.

What does the Court say about proportionality?

17 | P a g e
 The proportionality principle may thus not in itself exclude the use of
nuclear weapons in self-defence in all circumstance. But at the same
time, a use of force that is proportionate under the law of self-defence
must, in order to be lawful, also meet the requirements of the law
applicable in armed conflict which comprise in particular the principles
and rules of humanitarian law. The Court does not find it necessary to
embark upon the quantification of such risks; nor does it need to
enquire into the question whether tactical nuclear weapons exist which
are sufficiently precise to limits those risks: it suffices for the Court to
note that the very nature of all nuclear weapons and the profound risks
associated therewith are further considerations to be borne in mind by
States believing they can exercise nuclear response in self-defence in
accordance with the requirements of proportionality.

Consent to be Bound –
when is a state actually bound to a treaty?
How does a state express its consent to be bound?
 A variety of means - Article 11, 12,14,15
Article 11. MEANS OF EXPRESSING CONSENT TO BE BOUND BY A
TREATY
The consent of a State to be bound by a treaty may be expressed by
signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed.

Article 12. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY

SIGNATURE
1. The consent of a State to be bound by a treaty is expressed by the
signature of its representative when:
(a) The treaty provides that signature shall have that effect;
(b) It is otherwise established that the negotiating States were agreed
that signature should have that effect; or

18 | P a g e
 (c) The intention of the State to give that effect to the signature appears
from the full powers of its representative or was expressed during the
negotiation.
Signature - Article 12(1) Effect of a Signature:

A signature creates no obligation to ratify.

However, a signature creates an obligation of good faith to refrain from
acts calculated to frustrate the objects of the treaty (article 18). 
E.g.US unsigning the Rome Statute of the International Criminal Court
1998.
Article 14 – Ratification
Article 15 – Accession
TREATY INTERPRETATION
ARTICLE 31 a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose - GOLDEN RULE – this is always your starting
point. This is a textual approach in that what matters is the text of the
treaty over and above the intention and aim of the treaty, although these
factors are important.
ARTICLE 32 supplementary means of interpretations travaux preparatoires

REMEMBER THE PROCESS FOR TERMINATION OF A TREATY!!

ARTICLE 54 , 56 – YOU NEED CONSENT OF THE OTHER PARTIES TO
WITHDRAW FROM A TREATY
BUT THERE ARE SPECIFIC GROUNDS FOR TERMINATION SUCH AS:
1) MATERIAL BREACH – ARTICL 60 (PROVISIONS OF THE TREATY
BREACHED)
2) SUPERVENING IMPOSSIBILITY OF PERFORMANCE (ARTICLE 61) –
FOR EXAMPLE – submergence of an island – permanent disapperance or
destruction of an object indispensable for the treaty‘s execution (article 61 (2)
3) FUNDAMENTAL CHANGE – DOCTRINE OF REBUS SIC STANTIBUS
ARTICLE 62
THERE ARE 3 elements for ARTICLE 62 (1)

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 - The change must be unforseen
- Existence of the circumstances must have constituted an essential basis of the
parties consent to be bound and
- The effect of the breach must be radically to transform the extent of the
obligations still to be performed under the treaty
- ARTICLE 64 – CONFLICT WITH A NEW PEREMPTORY NORM
- If a new peremptory norm of general international law emerges and existing
treaty which is in conflict with that norm, treaty becomes void and
terminates
- Jus Cogens have the highest status, then of equal valu are, general principles,
customary international law, treaties and unilateral Acts

GABIKOVA – NAGYMAROS PROJECT CASE ? did Hungary lawfully

terminate the treaty?
FACTS – the law – established the four grounds to terminate the treaty
( impossibility of performance
Fundamental change of circumstances
Material breach of czechoslovakia
Developmnt of new norms of international environmental law
EXPLAIN THOROUGHLY IMPOSSIBILITY OF PERFORMANCE – article
61 of VCLT – impossibility must be due to the permanent disappearance or
destruction of an obeject indispensable for the treaty‘ s execution
A state cannot invoke impossibility of performance to terminate a treaty where it
has produced this situation through its own conduct
EXPLAIN THOROUGHLY FUNDAMENTAL CHANGE OF
CIRCUMSTANCES – article 62 – the effect of the change must be radically to
transform the extent of the obligations still to be performed under the treaty.

What is a reservation ? – unilaterla statement, however phrased, named made by

a state when signing, ratifying, accpeting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions
of the treaty in their application to that state – ARTICLE 2 (1) D) IS YOUR
POINT OF DEPARTURE

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 NZ reserves the right to: mix of juveniles with adults in prisons, there is a policy reason for
this. We are a small country etc

CAUTION: PLEASE KNOW THE NICARAGUA CASE BY

HEART!! IMBA CASE IYI!! IDYA CASE IYI!!!! GEZA CASE
IYOYO NDAPOTA
CASE IYI INOPINDA PAKAWANDA!!! IZIVE ICHAKUYAMBUTSA!!
THE REPUBLIC OF NICARAGUA V. THE
UNITED STATES OF AMERICA
OVERVIEW:

The case involves violation of customary international law. On April 9,

1984, the Republic of Nicaragua submitted a complaint to the International Court
of Justice (ICJ), alleging that the United States was using military force against
Nicaragua in violation of International Law.

The ICJ ruled in favor of Nicaragua and against the United States and
awarded reparations to Nicaragua. The ICJ held that the U.S. had violated
international law by supporting the Contras in their rebellion against the
Nicaraguan government and by mining Nicaragua's harbors.

The Court found in its verdict that the United States was "in breach of its
obligations under customary international law not to use force against another
State", "not to intervene in its affairs", "not to violate its sovereignty", "not to
interrupt peaceful maritime commerce", and "in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."

FACTS OF THE CASE:

The dispute between Nicaragua and the United States concerns events in
Nicaragua subsequent to the fall of the Government of President Anastacio
Somoza Debayle in Nicaragua in July 1979, and activites of the US Government in
relation to Nicaragua since that time. Then, a Junta of National Reconstruction
and an 18-member government were installed by the Frente Sandinista de
Liberacion Nacional (FSLN). The latter had initially an extensive share in the new
government. Certain opponents of the new government, primarily supporters of
the former Somoza government, formed themselves into irregular military forces.

The United States was initially supportive of the new government;

however, this had changed due to the involvement of the Government of
Nicaragua in logistical support for guerrillas in El Salvador.

21 | P a g e
 The armed opposition to the new government was conducted mainly by Fuerza Democratica
Nicaraguense (FDN) and Alianza Revolucionaria Democratica (ARDE), these
groups, called
“contras”, were fighting against the new government. The US had been giving
support to these Groups and the US Congress made specific provision for funds
to be used by the US intelligence agencies for supporting directly or indirectly
military or paramilitary operations in Nicaragua.

Submissions of the Nicaragua:

a. That the United States, in recruiting, training, arming, equipping,

financing, supplying and otherwise encouraging, supporting,
aiding, and directing military and paramilitary actions in and
against Nicaragua, had violated its treaty obligations to Nicaragua
under:
• Article 2 (4) of the United Nations Charter;
• Articles 18 and 20 of the Charter of the Organization of American
States;
• Article 8 of the Convention on Rights and Duties of States;
• Article I, Third, of the Convention concerning the Duties and Rights of
States in the Event of Civil Strife.

b. That the United States had breached international law by: 

violating the sovereignty of Nicaragua by:
- armed attacks against Nicaragua by air, land and sea;
- incursions into Nicaraguan territorial waters;
- aerial trespass into Nicaraguan airspace;
• efforts by direct and indirect means to coerce and intimidate the
Government of Nicaragua.
• using force and the threat of force against Nicaragua.
• intervening in the internal affairs of Nicaragua.
• infringing upon the freedom of the high seas and interrupting
peaceful maritime commerce.
• killing, wounding and kidnapping citizens of Nicaragua.

c. Nicaragua demanded that all such actions cease and that the
United States had an obligation to pay reparations to the
government for damage to their people, property, and economy.

Submissions of the United State:

 that its actions were "primarily for the benefit of El Salvador, and to
help it to respond to an alleged armed attack by Nicaragua, that the
United States claims to be exercising a right of collective self-defense,
which it regards as a justification of its own conduct towards
Nicaragua. El Salvador joined the U.S. in their Declaration of
Intervention which it submitted on 15 August 1984, where it alleged
itself the victim of an armed attack by Nicaragua, and that it had
asked the United States to exercise for its benefit the right of
collective self-defence."

22 | P a g e
  The CIA claimed that the purpose of the Psychological Operations in
Guerrilla Warfare manual was to "moderate" the existing Contra
activities.

 The United States argued that the Court did not have jurisdiction,
with U.S. ambassador to the United Nations Jeane Kirkpatrick
dismissing the Court as a "semi-legal, semijuridical, semi-political
body, which nations sometimes accept and sometimes don't."

It is noteworthy that the United States, the defaulting party, was the
only member that put forward arguments against the validity of the
judgment of the court, arguing that it passed a decision that it 'had
neither the jurisdiction nor the competence to render'. Members
that sided with the United States in opposing Nicaragua's claims did
not challenge the court's jurisdiction, its findings, nor the substantive
merits of the case.

ISSUES:

• Whether the prohibition of the use of force and collective self-defence are
issues regulated both by customary international law and by treaties, in
particular the United Nations Charter.
• What are the rules of customary international law applicable to the case?
• Whether the recognition of the States of certain rules is sufficient to consider
as being part of customary international law, and as applicable as such to
States.
• Whether the practice of State must be in “absolute conformity” with the
purported customary rule. What makes State practice an international rule?

THE RULING OF THE COURT:

First Issue
 The Court then considered the rules of customary law applicable to
the present dispute.
For this purpose it considered whether a customary rule exists in the
opinio juris of States,and satisfy itself that it is confirmed by practice.

 The Court ruled that there can be no doubt that the issues of the use
of force and collective self-defence are regulated both by customary
international law and by treaties, in particular the United Nations
Charter.

 The Court concluded that both Parties accept a treaty-law obligation

to refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the purposes of the
United Nations. The Court has however to be satisfied that there
exists in customary law an opinio juris as to the binding character of
such abstention. It considers that this opinio juris may be deduced
from, inter alia, the attitude of the Parties and of States towards
certain General Assembly resolutions, and particularly resolution

23 | P a g e
 2625 (XXV) entitled "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio juris with
regard to the principle of non-use of force, regarded as a principle of
customary international law, independently of the provisions,
especially those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter.

Second Issue
 The court, for this case, directed its attention to the practice and
opinio juris of States: as the Court observed, “It is of course axiomatic
that the material of customary international law is to be looked for
primarily in the actual practice and opinio juris of States, even though
multilateral conventions may have an important role to play in
recording and defining rules deriving from custom, or indeed in
developing them”.

 In the separate opinion of Judge Nagendra Singh. - The Charter

provisions as well as the Latin American Treaty System have not only
developed the concept but strengthened it to the extent that it
would stand on its own, even if the Charter and the Treaty basis were
held inapplicable in this case. The obvious explanation is that the
original customary aspect which has evolved with the treaty law
development has come now to stay and survive as the existing
modern concept of international law, whether customary, because of
its origins, or "a general principle of international law recognized by
civilized nations". The contribution of the Court has been to
emphasize the principle of non-use of force as one belonging to the
realm of jus cogens and hence as the very cornerstone of the human
effort to promote peace in a world torn by strife.

Third Issue
 The Court ruled that the mere fact that States declare their
recognition of certain rules in not sufficient for the Court to consider
these as being part of customary international law, and as applicable
to those States. Bound as it is by Article 38 of its Stature to apply,
inter alia, international custom “as evidence of general practice
accepted as law”, the Court may not disregard the essential role
played by general practice. Where two States agree to incorporate a
particular rule in a treaty, their agreement suffices to make that rule
a legal one, binding upon them; but in the field of customary
international law, the shared view of the Parties as to the content of
what they regard as the rule is not enough. The Court must satisfy
itself that the existence of the rule in the opinio juris of State is
confirmed by practice.

 In the present disputes, the Court, while exercising its jurisdiction

only in respect of the application of the customary rules of non-use
of force and non-intervention, cannot disregard the fact that the

24 | P a g e
 Parties are bound by these rules as a matter of treaty law and of
customary international law. Furthermore, in the present case, apart
from the treaty commitments binding the Parties to the rules in
question, there are various instances of their having expressed
recognition of the validity thereof as customary international law in
other ways. It is therefore in the light of this “subject element” -
expression used by the Court in its 1969 Judgment in the North Sea
Continental Shelf cases) – that the Court has to appraise the relevant
practice.

Fourth Issue
 The court said that in order to deduce the existence of customary
rules, the Court deems it sufficient that the conduct of the States
should, in general, be consistent with such rules, and that instances
of State conduct inconsistent with the given rule should generally
have been treated as breaches of that rule, not as indications of the
recognition of a new rule.
 The Court emphasized, as was observed in the North Sea Continental
Shelf case, for a new customary rule to be formed, not only must the
acts concerned “ amount to a settled practice”, but they must
accompanied by the opinio juris sive necessitates. Either the States
taking such action or other States in a position to react to it, must
have behaved so that their conduct is “evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belef, i.e., the existence of a
subjective element, is implicit in the very notion of the opinio juris
sive necessitates.”

25 | P a g e
 1. Did the US breach its customary international law obligation – not to intervene
in the affairs of another State – when it trained, armed, equipped and financed
the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua?
2. Did the US breach its customary international law obligation – not to use force
against another State – when it directly attacked Nicaragua in 1983 – 1984
and when its activities in bullet point 1 above resulted in the use of force?
3. Can the military and paramilitary activities that the US undertook in and
against Nicaragua be justified as collective self-defence?
4. Did the US breach its customary international law obligation – not to violate
the sovereignty of another State – when it directed or authorized its aircrafts
to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?
5. Did the US breach its customary international law obligations – not to violate
the sovereignty of another State, not to intervene in its affairs, not to use force
against another State and not to interrupt peaceful maritime commerce –
when it laid mines in the internal waters and the territorial sea of Nicaragua?
ICJ decision: US violated CIL in relation to bullet points 2, 3, 4 and 5 above. The
Court rejected the US justification of collective self-defence and held that US
violated the prohibition on the use of force.

Relevant Findings of the Court:

The US breached its customary international law obligation – not to use force
against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and
(2) when its activities with the contra forces resulted in the threat or use of force.
See paras 187 -201. The Court held that:

1. The prohibition on the use of force is a principle that can be found in Article
2(4) of the UN Charter and in customary international law (CIL).
2. Use of force can be: (1) “most grave forms of the use of force” (i.e. those that
constitute an armed attack) and (2) “less grave forms” of use of force (i.e.
organizing, instigating, assisting or participating in acts of civil strife and
terrorist acts in another State – when the acts referred to involve a threat or
use of force).
3. The US violated the CIL prohibition on the use of force when it laid mines in
Nicaraguan ports and attacked its ports, oil installations and a naval base. If
however, the force was used in collective self- defence, then the US was
justified in the use of force (see below on self-defence).
4. The US violated the CIL prohibition on the use of force when it assisted the
contras by “organizing or encouraging the organization of irregular forces and
armed bands… for incursion into the territory of another state” and

26 | P a g e
 “participating in acts of civil strife…in another State” and when these acts
involved the threat or use of force.
5. The supply of funds to the contras does not violate the prohibition on the use
of force.

“…while the arming and training of the contras can certainly be said to involve the threat or use of
force against Nicaragua… the Court considers that the mere supply of funds to the contras, while
undoubtedly an act of intervention in the internal affairs of Nicaragua… does not in itself amount to a
use of force.” (para 227) What is an armed attack?
- Do you know ASIWA?
- For a State to incur international responsibility, there must not only be an
internationally wrongful act, but that act must also be attributable/imputable to the
State
- How to attribute responsibility?
- Elements of responsibility
- 1)Every international wrongful act, a state must be held responsible
- 2) It Can be action or omission
- 3)Has to be attributable to a state and be a breach of that state international
obligations

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TRY APPLY A CASE STUDY FOR EACH ANSWER

ASK THE HOW - WHAT – WHY- WHERE – AM I SURE

Public international law questions and answers

PRACTICE QUESTIONS: TOPIC 3 TREATIES

 When it comes to the law of treaties, one must turn to the Vienna Convention of
the law of Treaties (VCLT)
 The VCLT outlines everything about treaties. It outlines everything from a
treaty's function to their formation and its termination.
 Point of departure would be article 2 (1) : traditional meaning of a treaty –
which means an international agreement concluded between states in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
design.
 Article 2 (1) (b) which outlines what ratification, acceptance, approval and
accession is : meaning in each case the international act so named whereby a
state establishes on the international plane its consent to be bound by a treaty.
 Article 2 (1) (d) Ratification means a unilateral statement, however, phrased or
named, made by a state when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or modify the legal effects of
certain provisions of the treaty in their application to that state.


1. Discuss the rules that govern reservations made in respect of multilateral

treaties.
Answer: ARTICLE 19-23
 What is a reservation?
 Rules or procedural rules for reservations are in ARTICLE 23 OF THE VCLT –
acceptance, objection and withdrawal to be in writing

28 | P a g e
  International law allows for a state to become party to a treaty while opting out
from the application of certain provisions
 Like a buffet! International law has taken a flexible approach to get states on
board.
 Needs to be written and deposited with the Secretary General.
 Example of reservation: CEDAW Saudi Arabia
 Reservation: in case of contradiction between any term of the convention and the
norms of Islamic law, the kingdom is not under obligation to observe the
contradictory terms of the convention.
 This was overly broad and impossible to determine where this can lead to
 The object and purpose of this term is to protect women, this reservation is
immediately clear that it is contrary to the purpose of the term.

 FIRST RULE: Article 2 (1) (d) of the VCLT defines a reservation as a unilateral
statement, however, phrased or named, made by a state when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application to that
state.

 It may happen that a state is prepared to become a party to a treaty without

accepting all of the treaty provisions, where it disagrees with certain aspects of the
treaty

 A DECLARATION BY A STATE MAKING ITS ACCEPTANCE OF THE

TREATY CONDITIONAL UPON A PARTICULAR INTERPRETATION – A
SO-CALLED INTERPRETATIVE DECLARATION- MAY, IN FACT,
CONSTITUTE A RESERVATION

 In multilateral treaties, a state may ratify a treaty while maintaining reservations

to certain provisions in the treaty, provided that it is compatible with the objects
and purpose of the treaty. (In multilateral treaties, a country can agree to a treaty
but say, "I accept most of it, but not this part." This is called a reservation.
However, the part they don't agree with can't go against the main goal of the
treaty.)

 States may refuse to accept certain provisions of a treaty on purely ideological

grounds, for example, because they believe that such provisions are discriminatory
towards other states. States sometimes enter reservations for purely political
reasons, for example, to pursue their foreign policy goals or to settle a political
score.

 The traditional rules on reservations to multilateral treaties were developed uon

the idea or perception that a treaty resembles a CONTRACT - Once everyone
agrees on the terms, they can't be changed without everyone's say-so. So, when a
country makes a reservation to a treaty, it's like saying, "I agree with most of it,
but not this part."

29 | P a g e
  However, for that reservation to count, every single country in the treaty has to
agree to it.

 If even one country says no, then the reserving country either has to drop the
reservation and follow all the rules or stick to their position and not be a part of
the treaty.

 -It may happen that a state is prepared to become a party to a treaty without
accepting
 all of the treaty’s provisions, where it disagrees with certain Aspects of the Treaty.
 - To cater for such instances, treaty law permits a state to make certain
reservations to
 a treaty, which simply means that the state excludes or modifies the legal
 consequences of the treaty with respect to certain provisions.
 This occurs with Multilateral treaties, and reservation is only permitted if it is
compatible with the objects and purpose of the treaty.

 Early International law required a state wishing to make a reservation to obtain

the consent of all parties to a multilateral treaty in order to become a party to the
treaty.

 In 1951, however, the International Court of Justice held, in an advisory opinion

on Reservation to the Convention on the Prevention and Punishment of the Crime
of Genocide, that a State which has been objected to by one or more of the parties
to be Convention but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and purpose of the
Convention.

 Article 19 generally states that may make reservations EXCEPT WHEN:

1. The treaty prohibits reservation.

2. The treaty provides for only specified reservations.
3. When the reservation would be contrary to the object and purpose of
the treaty.

 In terms of admissibility of reservations, ILC is in favour of the ‘compatibility

rule’, that is to say, ‘a State which has made ... a reservation which has been
objected to by one or more of the parties to the Convention but not by others,
can be regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention’: Armed Activities
(New Application: 2002) case
 the object and purpose test - article 19(c) provided that a State may not
formulate a reservation if the reservation is incompatible with the object and
purpose of the treaty.
 The rules help ensure that reservations do not undermine the overall purpose
and effectiveness of the treaty.

REMEMBER: 1. Permissibility of reservations – reservations must be allowed by

treaty. Some treaties explicitly permit reservations, while other prohibit them entirely.

30 | P a g e
 2. Incompatibility with the object and purpose of the treaty- reservations must not
be incompatible with the object and purpose of the treaty. They should not
undermine the fundamental goals and aims of the treaty.
3. Not prohibited by the treaty: the treaty text itself should not explicitly prohibit
certain types of reservations. If it does, those reservations will be considered
invalid.
4. Time limit for acceptance; some treaties specify a time limit within which
reservation must be accepted. If a reservation is not objected to within this
period, it is considered accepted.
5. Notification and publication: parties making reservations must formally notify
other parties of their intention to do so. Reservations should also be publicly
available to ensure transparency.
6. Relation to customary international law; reservations should not conflict with
customary international law, which consists of established norms accepted by
the international community as a whole.
Case studies – Bolivia took steps to become a party to the 1961 single convention on
Narcotic drugs as amended with a RESERVATION on the chewing of coca leaf, a
traditional practice among its people.


2. According to Article 34 of the Vienna Convention on the Law of Treaties,

“a treaty does not create either obligations or rights for a third state”.
Discuss the circumstances in which a third state may be bound by a treaty
that it has not ratified.
 Article 34 of the Vienna Convention on the Law of Treaties states that a
treaty doesn't automatically create obligations or rights for a third state.
However, there are situations where a third state might still be bound by a
treaty it hasn't formally ratified. Here are some circumstances:

 Accession or Adherence: If a treaty allows for accession or adherence by

third states, they can choose to join the treaty after it has been concluded.
This means they agree to be bound by its terms even though they weren't
initially involved in its negotiation or signing.

 Customary International Law: If the provisions of a treaty are so widely

followed by states that they become accepted as customary international law,
even states that haven't formally ratified the treaty may still be bound by
those customary norms. This is because customary international law applies
to all states, regardless of whether they've ratified specific treaties.

 Obligations Erga Omnes: Some treaties contain obligations that are owed to
the international community as a whole (erga omnes obligations). These are
obligations that all states are expected to uphold. For example, the
prohibition of genocide and crimes against humanity is considered an erga
omnes obligation.

 Bilateral Treaties with Obligations to Third States: In certain cases, a

bilateral treaty between two states may contain provisions that confer

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 benefits or impose obligations on third states. This is relatively rare and
would require the explicit consent or acceptance of the third state.

 Proxy Consent: In situations where a third state has given its explicit consent
or authorization for another state to represent its interests in negotiations or
when concluding a treaty, the third state may be bound by the treaty even
though it didn't directly participate.

 Acquiescence and Estoppel: If a third state consistently behaves as if it is

bound by a treaty (acquiescence) or makes representations to that effect, it
may be estopped from later denying its obligations under the treaty.

It's important to note that while these circumstances can lead to a third state being
bound by a treaty it hasn't ratified, such situations are generally exceptional. The
principle outlined in Article 34 of the Vienna Convention is a fundamental aspect of
treaty law, and the default position is that a state is not bound by a treaty to which it
is not a party.

Answer: Obligations and rights for third states ARTICLE 34

 General rule – treaties are binding only on the contracting parties
 A treaty primarily binds the parties to it,
 the principle behind it is that the rights and obligations should only be
imposed on the parties who have consented to the rules or conditions.
 No state is bound by a rule of law unless it has expressly or impliedly
assented to it
 Article 34 of the Vienna Convention states that “A treaty does not create
either obligations or rights for a third State without its consent.”


 A treaty does not create either obligations or rights for a third state without
its consent

 EXCEPTION: Third states may be validly held to the observance of or

benefit from the provisions of a treaty.

 The treaty may be merely a formal expression of customary international law

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 which is enforceable in all civilised states:
 A treaty may expressly extend benefits to non-signatory states, for example,
the HAY – PAUNCEFOTE TREATY OF 1901
 The general rule is that international agreements are binding only to the
parties that have contracted to the treaty.
 This is based on the fundamental principles of sovereignty and independence
of state.
 The notion of sovereignty lies on the fact that international law has to respect
decisions made by individual states
 Article 34 provides that a treay does not create either obligations or rights for
third states without consent
 One exception should be where the provisions of the treaty have become
customary international law, for example, in the law relating to warfare
adopted by the Hague Conventions
 Article 35 – notes that an obligation may arise for a third state from the term
of a treaty if the parties to a treaty so intend and the third State expressly
accepts the obligation in writing.
 This may lead to a collateral treaty, which will inform the basis for the third
state's obligations inviting.
 Article 36- deals with the allocation of rights of the third parties. It provides
that: a right arises for a third party from a provision of the treaty if the
parties to the treaty intend the provision to accord that right either to the
third state or to a group of states to which it belongs, or to all states and the
third state.
 The basic principle: treaties are only applicable to the third states when the
third parties have consented to it.
 The convention upheld the general principle of SOVEREIGNTY OF
STATES AND GIVES RIGHTS OR OBLIGATIONS TO STATES ONLY
WHEN THEY HAVE CONSENTED TO IT.
 There are exceptions to the rules of an obligation under Article 35 of VCLT,
like the obligations imposed by the United Nations Charter for international
peace and stability.
 A treaty creates rights or obligations for a third state under two situations,
namely, firstly, when the states parties to the treaties intended to create such
rights or obligations, and secondly, the third consents to such rights or
obligations. Rights of the third states can only be revoked or modified only
when the treaty specifies that the rights given were revocable and the third
parties have consented to it.
 Third parties have to adhere to the provisions or obligations of a treaty if the
provisions of the treaties are customary international law.

3. Discus the rules of termination of a treaty set out in Article 62 of the

Vienna Convention on the Law of Treaties
Answer: Treaties cannot be terminated unless a treaty contemplates termination or
the parties agree thereto.

There are internal and external grounds for termination.

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 Internal ground: the general rule in Article 54: “ the termination of a treaty or the
withdrawal of a party may take place 1) in conformity with the provisions of the
treaty or 2) at any time by consent of all the parties after consultation with other
parties. In practice, the majority of modern treaties contain provisions for
termination or withdrawal.
Sometimes, the treaty shall come to an end automatically after a certain time. Other
treaties merely give each party an option to withdraw, usually after giving a certain
period.
External grounds: there are three external grounds: 1) Material breach as elucidated
in article 60 (2); the supervening impossibility of performance (article 61); and 3)
fundamental change of circumstances (article 62) rebus sic stantibus.

The provision of Article 62(1) of the Vienna Convention on the Law of Treaties
(VCLT) allowing states to terminate or withdraw from a treaty due to the unforeseen
“fundamental changes of circumstances” is a well-established rule under customary
international law but may be invoked only in exceptional circumstances.
Under Article 62, a state needs to meet the following conditions to terminate or
withdraw from a treaty due to the unforeseen “fundamental changes of
circumstances”: (a) the changed circumstances were “essential” for the decision to
enter into the treaty, and (b) the changes of circumstances “radically” transform the
obligations under the treaty so that further implementation of the treaty becomes
unduly burdensome.
1. Termination by treaty or consent
2. Material breach
3. Supervening impossibility
4. Fundamental change of circumstances
5. Severance of diplomatic or consular relations.
 These are the various grounds for the termination of the treaty such as;
 Expiry of the specified period for which a treaty was concluded.
 Fulfilment of purpose or object
 Termination by mutual consent
 Violations of a term essential to the accomplishment of the purpose of the
treaty or repudiation not sanctioned by VCLT may entitle other parties to
invoke the breach as a ground for terminating a treaty.
 Customary international law recognises breach on the basis of fundamental
change in the circumstances which determined the parties to accept the
treaty.
 This notion is embodied in the doctrine of Rebus sic Stantibus.
 It is contained in article 62 of VCLT (The fundamental change of
circumstances).
 A fundamental change of circumstances which has occurred If something
very important has changed after a treaty was made, and nobody expected it,
you can't use that as a reason to cancel or end the treaty.
 A treaty may be terminated in cases of war and conflict: Obviously, in such
circumstances, parties may not be in a position to fulfil the treaty obligations.
For example, in the case of extradition,
 When there is a war or conflict, it can be really hard for the parties involved

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 to carry out their treaty promises. For instance, in a case called Harksen v
President of the RSA, a court said that even if there is a war, an extradition
treaty doesn’t just end. It is put on hold.
 It usually starts up again when there is a peace treaty between the countries
involved.
 Treaties are to be honoured in accordance with the principle of pacta sunt
servanda.
 A treaty may not be terminated or suspended unless the treaty contemplates
such termination/ suspension or if the parties agree to terminate.
 Material breach- the VCLT makes a distinction between bilateral and
multilateral treaties. If one of the parties to a bilateral treaty is in a material
breach of its treaty obligations, the other party is entitled to terminate the
treaty or to suspend its operation in whole or in part.
 Supervening impossibility – covid 19 – extinguishes or suspends obligations.
 Permanent disappearance or destruction of an object indispensable for the
execution of the treaty.

4. Discuss using contemporary examples the acts by which a state signifies its
willingness to be bound by a treaty.

 A state can signify its willingness to be bound by a treaty by

 Definitive signature
 Ratification
 Acceptance
 Approval
 And accession
 The above will show that the state has agreed to become a party and is willing
to undertake the legal rights and obligations contained in the treaty upon its
entry into force
 Article 11 (general rule)
 The consent of a state to be bound by a treaty may be expressed by signature,
exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession or by any other means if so agreed.

 Signing a treaty is one of the most common steps in the process of becoming
party to a treaty. However, simply signing a treaty does not usually make a
state a party, although in some cases, called definitive signature, it might. A
state does not take on any positive legal obligations under the treaty upon
signature. Signing a treaty does, however, indicate the state's intention to take
steps to express its consent to be bound by the treaty at a later date.
 Signature creates an obligation on a state: in the period between signature and
ratification, acceptance or approval, to refrain in good faith from acts that
would defeat the object and purpose of the treaty.
 Article 10 provides that failing any other procedure agreed by the parties
participating in the drawing up of the treaty the signature of the treaty

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 establishes that the negotiated text is authentic text and definitive.
 In other words the endo of a negotiation results from the signature of the
treaty.
 By signing a treaty, a state may express its consent to be bound by the treaty.
 Only on the basis that the treaty provides that the signature shall have that
effect (article 12)
 Basically, the signature expresses consent to be bound by the treaty IF that is
the common intention of the negotiating parties.
 If they do not have the intention, then the signature will not be considered as
expressing their final consent or willingness to be bound by the treaty.
 Article 11 states that there is not one single means of expressing consent or
willingness to be bound by the treaty.
 The contracting parties are free to decide for each treaty which one is to be
preferred.
 As the ICJ ruled in the Cameroon v Nigeria (2002) case
 Both customary international law and the Vienna convention on the law of
treaties leave it completely up to states which procedure they want to follow.
 States may choose the signature as a way to show their consent or willingness
to be bound OR
 States may prefer to give to themselves a moment of thought and evaluation
and a moment of democratic approval at a national level thus ratification.
 Pending the entry into force To show willingness, states must not partake in
any activity that will offend the object and purpose of the treaty, and this is
codified by Article 18 of the Vienna Convention
 An obligation to refrain from acts that would defeat the object and purpose of
the treaty.
 This is not an obligation to comply with or perform any treaty provisions
 Rather it is an obligation of good faith to abstain from any act which would
defeat the purpose and object making the treaty meaningless
 This is only for a pending entry into force ( showing willingness and once the
state gain entry not force then this obligation is replaced by the obligation of
pacta sunt servanda.

TOPIC 4 PRACTICE QUESTIONS

1. What does the doctrine of state responsibility entail?

 ANSWER: state responsibility happens when a state breaches an

international obligation and can also apply to international
organisations.
 Failure by states to meet their obligations under international law
 results in liability or state responsibility.

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  In their relationship with one another, states are supposed to respect
the rules that define their relationship
 A state can be responsible for the wrongful acts of another if it provides
assistance or directs and controls other states to commit a wrongful act
or forces another state to commit a wrongful act
 A wrongful act by a state is excused in the following cases when the
victim states approves and gives consent to the conduct which is a
countermeasure or a self defense or caused by force majeure (act of
god)
 Or carried out in distress or to safeguard the interests without affecting
others.

 Its primary focus is on the responsibility of states for their actions or

failure to act.

 The rules are derived from treaties, customs, general legal principles
and court decisions.

 The main guidelines for state responsibility come from a United Nations
resolution and a set of rules made by an international legal commission.

 Rules have become much clearer. They spell out what counts as a
wrongful act, what kind of damage matters, and when it's okay to take
action in response. For example, a country can take serious action, but
it usually has to try peaceful solutions first.

 One important concept is that of attribution, which means linking the

wrongdoing to the country itself. This means that if a private person
does something wrong, it's not automatically the country’s fault.

 This duty results from the legal personality of every state as the
principal bearer of international obligations.

 If states fail to perform their obligations or conduct themselves

 contrary to their international law commitments, they commit what is
called ‘internationally wrongful acts’, which may be breaches of either
treaty law or customary international law.
 Thus, the law of state responsibility refers to the body of rules that
defines breaches of

 obligations of states in international law, as well as the consequences of

such breaches.

 The scope of state responsibility encompasses the primary rules that

define the nature of the internationally wrongful act that may be
attributable to a state

 The secondary rules that flow from the consequences of a breach of an

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 international obligation

 State responsibility is incurred when one state commits an

internationally wrongful act against another. For instance,

 Article 2(4) of the UN charter prohibits dictatorial non-intervention by

stating that every state is under a legal obligation not to use or threaten
to use force against others.

 However, non-intervention is not merely limited to the prohibition of

the usage of force.

 Any form of coercive interference in the internal affairs of a state would

invite state responsibility.

 As Oppenheim’s international law puts it, the interference must be

forcible or dictatorial or otherwise coercive, in effect depriving the state
intervened against of control over the matter in question.

 Intervention that is pure and simple in not intervention.

 LANDMARK CASE: NICARAGUA V USA

 The case concerning military and parliamentary activities in and

around Nicaragua.

 It involved USA supporting rebellion groups against the Nicaraguan

government.

 The court found in its verdict that the USA was in breach of its
obligations under customary international law not to use force against
another state and not to intervene in its affairs.

 United kingdom v Albania ( the corfu channel)

 On october 22, 1946 a few British warships while passing through the
North Corfu Strait within the territorial waters of Albania were
severely damaged due to mine explosions.

 Most crew members were either killed or gravely injured.

 The Albanian waters had previously been swept clean of mines.

 The United Kingdom, through an application filed on 22 May 1947,

accused Albania of having laid or allowed a third State to lay the mines
after mine-clearing operations had been carried out by the Allied naval
authorities.

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  The Court found that Albania was responsible under international law
for the explosions that had taken place in Albanian waters and for the
damage and loss of life which had ensued.

 Although it did not accept the view that Albania had itself laid the
mines or granted permission to another entity, it held that the mines
could not have been laid without the knowledge of the Albanian
Government. Therefore, it was concluded that the Albanian
government had authorized the laying of mines, and therefore was
ordered to make reparation to the United Kingdom.

 There are 3 factors employed to determine the liability of a state;

 Firstly- the state must be under a legal duty not to commit the Act

 Secondly – the state must commit the act

 Finally the act must cause injury (loss or damage) to another entity.

 If these factors are satisfied, the state is bound to make reparation to

the injured parties.

 Direct and indirect responsibility

 Direct responsibility
 The government, which includes the executive, the legislature,
judiciary, and the central authorities and local authorities, is what
represents the State. Therefore, in the event of any of these organs
committing a breach of international law, the State shall be held
directly liable. For instance, by the representative theory, diplomatic
ambassadors are considered to be representatives of the head of the
sending State. Therefore if they commit a wrongful act in the capacity
of their diplomatic status, the sending State shall be held liable.
Similarly, a State is held liable for the wrongful acts of its armed forces,
if it had authorised the armed forces to carry out those acts.

 Indirect responsibility
 A State could also be held responsible for the acts committed by other
parties if those acts were authorized by it. This rule depends on the link
that exists between the State and the person or persons committing the
wrongful act or omission. Indirect responsibility/ vicarious
responsibility is a condition when an entity is made liable to make
reparation, for the acts of another entity. This occurs when the latter
has been authorized by the former to commit the act. Therefore, in such
cases, the authorizing State is held indirectly liable for the acts of the
authorised State. Even if the authorized entities exceed or disobey their
instructions, the State shall be held liable, if they are acting under
‘apparent authority’.

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  EXAMPLE: United States v. Iran (1980)
 On November 4, 1979, a group of Iranian rebels invaded the US
embassy in Tehran. They damaged the embassy and destroyed embassy
documents. The invasion lasted for hours, but despite repeated
requests, Iranian military forces did not arrive until later. More than
sixty American diplomats and citizens were held hostage until January
20, 1981. Some of the hostages were released earlier, but 52 hostages
were held hostage until the end. Once on scene, the Iranian military did
not attempt to free the hostages. On November 29, 1979, the U.S. filed a
claim against Iran in the International Court of Justice (ICJ). The ICJ
found the rebels to be ‘agents’ of the Iranian Government because the
latter had approved and perpetuated their actions, translating the
occupation of the embassy and detention of the hostages into official
acts of the State, of which the perpetrators, while initially acting in
private capacities, were rendered agents of the Iranian State.
 What are the legal consequences of state responsibility- Where there is
a right, there is a remedy. When a State commits a breach of
international law, it becomes liable to make good the losses faced by the
injured parties. The first consequence is the cessation of the wrongful
act, and the second is reparation.
 The link between unlawful conduct (breach and the state is called
Attribution
 ILC ARISWA indicate that for an international wrongful act or
omission to be attributable to a state must be committed by, under the
direction under the authority or control of the state.

2. Under what circumstances can an internationally wrongfully act be attributed to

a state?

3. To what extent are states liable for internationally wrongful acts that they
commit?

4. Discuss the circumstances under which wrongfulness on the part of a state

maybe precluded under international law.

5. The Republic of Wind is supporting an internal rebel organisation fighting

against the state of Water. The rebel organisation’s aim is to overthrow the
government in the state of Water. Over a span of about five years, the Republic
of Wind has provided money, training and even asylum to members of the rebel
organisation. During this time, the rebel organisation has been responsible for
abductions, displacements, and bombing of schools and market places that have
resulted in deaths and injury to innocent people, mainly women and children.
The State of Water now wishes to bring a claim (at the International Court of
Justice) for compensatory remedy against the Republic of Wind on the grounds

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 that all the acts committed by the rebels should be attributed to the Republic of
Wind.

Discuss the rules of attribution as set out in the Articles for Responsibility of States for
Internationally Wrongful Acts and advice on the merits of this claim.

Revision Questions for Test 1 (2023)

1. Discuss the way(s) in which the Charter of the United Nations (1945) enables the
United Nations, as an organisation, to achieve its purposes as set out in Article 1
of the Charter. In your analysis, indicate using contemporary examples
whether, as far as African states are concerned, the United Nations and its
organs have been successful in this regard or not.
Answer: Article 1 (2) establishes that one of the main purposes of the United Nations,
and thus the Security Council, is to develop friendly international relations based on
respect for the “principle of equal rights and self-determination of peoples”.
 the Charter of the United Nations (1945) outlines the purposes of the UN and
provides the framework for its functioning. Article 1 of the Charter sets out the
main purposes, which include maintaining international peace and security,
promoting human rights, fostering social progress, and more.
 Peacekeeping Operations: The UN deploys peacekeeping missions to regions
experiencing conflict. These missions aim to create a secure environment,
facilitate political processes, and rebuild institutions.
 Diplomatic and Mediation Efforts (Chapter VI): The UN can facilitate
negotiations and act as a mediator to resolve disputes peacefully. For instance,
the UN played a pivotal role in mediating the Comprehensive Peace Agreement
that led to the independence of South Sudan in 2011.
 Economic and Social Cooperation (Chapter IX): The UN promotes economic
and social development to improve living standards and address global
challenges. Programs like the UN Sustainable Development Goals (SDGs) aim to
combat poverty, hunger, and inequality. These goals have had an impact on
various African nations, with efforts to improve education, health, and economic
opportunities.

 Preventive Diplomacy: The UN engages in diplomatic efforts to prevent conflicts

from escalating. It encourages dialogue and mediation between parties in
potential conflict zones.

 Contemporary Example: UN peacekeeping missions in countries like Mali, the

Democratic Republic of Congo, and South Sudan are efforts to stabilize conflict-

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 affected regions.

 Promoting Human Rights:

 Human Rights Council: This body addresses human rights issues worldwide. It
conducts periodic reviews of member states and establishes special procedures
to investigate and report on specific human rights violations.

 International Criminal Court (ICC): While not a UN organ, the UN supports
the ICC's work in prosecuting individuals for genocide, war crimes, crimes
against humanity, and the crime of aggression.

 Contemporary Example: The UN's involvement in addressing human rights
abuses in countries like Myanmar, Syria, and Yemen demonstrates its
commitment to promoting and protecting human rights.

 Fostering Social Progress and Development:

 Economic and Social Council (ECOSOC): ECOSOC coordinates the economic,
social, and related work of 15 UN specialized agencies, their functional
commissions, and their regional commissions.

 UN Development Program (UNDP): This program works to eradicate poverty,
reduce inequalities, and build resilience in developing countries.

 Contemporary Example: The UN's efforts in supporting development goals, like

the Sustainable Development Goals (SDGs), are particularly relevant to African
states. Initiatives focus on areas like poverty reduction, education, healthcare,
and infrastructure.

 Promoting International Law:

 International Court of Justice (ICJ): The ICJ settles legal disputes between
states and provides advisory opinions on legal questions referred to it by the
General Assembly, Security Council, or other UN organs.

 International Law Commission: This body works to develop and codify

international law.

 Contemporary Example: The ICJ's involvement in cases related to territorial

disputes, environmental issues, and human rights violations showcases the UN's
commitment to promoting international law.

 Overall, while the UN has made significant efforts to achieve its purposes in
Africa and beyond, success can be mixed and context-dependent. Factors such
as political will, cooperation of member states, and local dynamics influence
outcomes. The organization faces challenges, but its work remains vital in
addressing global issues and promoting peace, security, and development.
 EBOLA On 23 March 2014 WHO’s African Regional Office reported an
outbreak of Ebola virus disease in Guinea. It has quickly spread to other

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 countries in West Africa. The outbreak has been the largest and most complex
Ebola outbreak since the Ebola virus was first discovered in 1976. The Ebola
epidemic in West Africa has destroyed lives, decimated communities, and
orphaned children in the affected countries. More than 11,000 people have died
of the disease. The epidemic has slowed down economic growth and closed
businesses, affecting the livelihood of millions of the poorest and most
vulnerable people in the region. As part of the response, on 19th September
2014, the international community established the first ever emergency health
mission the UN Mission for Ebola Emergency Response. The mission closed on
31 July 2015, having achieved its core objective of scaling up the response on the
ground.
 The UN Security Council established the International Criminal Tribunal for
Rwanda (ICTR) to "prosecute persons responsible for genocide and other
serious violations of international humanitarian law committed in the territory
of Rwanda and neighbouring States in 1994". During its operation, the Tribunal
indicted 93 individuals including high-ranking military and government
officials, politicians, businessmen, as well as religious, militia, and media
leaders.

 With its sister international tribunals and courts, the ICTR has played a
pioneering role in the establishment of a credible international criminal justice
system, producing a substantial body of jurisprudence on genocide, crimes
against humanity, war crimes, as well as forms of individual and superior
responsibility.

 The ICTR is the first ever international tribunal to deliver verdicts in relation to
genocide, and the first to interpret the definition of genocide set forth in the
1948 Geneva Conventions. It is also the first international tribunal to define
rape in international criminal law and to recognise rape as a means of
perpetrating genocide, as well as the first international tribunal to hold
members of the media responsible for broadcasts intended to inflame the public
to commit acts of genocide.

 The ICTR delivered its last trial judgement in December 2012. Since then the
Mechanism for International Criminal Tribunals has assumed responsibility for
the ICTR's residual functions including cases before the appeals chamber and
the tracking and arrest of the accused who remain fugitives from justice.

 Albania: Bringing women’s human rights home UN Women have followed a

transformational and holistic strategy to combat gender inequality from
different angles, across sectors, at various levels and for a sustained period of
time. Various initiatives demonstrate this, including: 1. Support in developing
the first and second National Strategies on Gender Equality and Domestic
Violence (2007-2010 and 2011-2015) inspired by CEDAW standards and the
CEDAW Committee concluding observations (the second strategy also contains
a costed action plan).
 the OAU enjoyed some modest success in responding to continental conflict
towards the end of the 20th century. For example, in the late 1990s, the
organization mediated conflict in the DRC. It also brokered peace between
Ethiopia and Eritrea in 2000.

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  However, the OAU was severely criticized for not stopping the genocide in
Rwanda, or ending wars in Liberia and Burundi
 The United Nations has been involved in African peace management since the
1960 Congo (now Zaire) crisis. Military assistance to the government of the
Congo was initially authorized by the Security Council." Following the Soviet
veto of several operative resolutions on the matter, the General Assembly
authorized the secretary-general to provide assistance to the central government
of the Congo under the authority of the "Uniting for Peace" resolution.
 In the past decade, peacekeeping operations in Africa have been expanded to
include large-scale military and civilian deployments in Angola, Mozambique,
Namibia, Rwanda, Somalia, and Western Sahara. In all these cases, the United
Nations interceded either to promote peaceful transitions to democracy and
independence or to foster political reconciliation and protect humanitarian
relief efforts
 In addition to the traditional peacekeeping efforts, the United Nations has
attempted to restore political order in the "failing" states. Under this expanded
interpretation of the Charter, peacekeeping operations have included
monitoring and securing free elections and facilitating peace negotiations among
rival intra-state factions.


2. Assume that the African Union (AU) has established an International Law
Reform Group (ILRG), a think tank that will advise its secretriat on changes
to international law that the organisation should pursue. You have been
appointed to serve as the Honorary chair of this think tank. The AU Secretary
General has informed you that most African countries are dissatisfied with the
current state of international law and its systems. They wish to sponsor a
resolution at the UN General Assembly declaring that international law should
henceforth not be considered as law. The Secretary-General has asked you, as
chair of ILRG, to draft a legal memorandum advising African states on key
questions that they should consider in supporting their bid. He is particularly
asked that your memorandum should pay attention to the particularity of the
continent and its relationship with modern international law. Prepare the
memorandum.
ANSWER: international law is primarily formulated by international agreements,
which create rules binding up on on the signatories and customary rules, which are
basically state practices recognised by the community at large.
Austin and his followers defined law as a body of rules conduct set and enforced by a
sovereign political authority.
If indeed this definition of law can be correct, the law of nations cannot be called law
for international law is a body of rules for relations of sovereign tates between one
another.
There is not and cannot be a sovereign political authority above the sovereign states
which could enforce the rules. This international law cannot be regarded as law
According to austin positive theory of law, for law too exist there should be the
existence of a sovereign issuing a command backed by a sanction or punishment.
International law was not found to meet this requirement.
Who has the power to define an offence?

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 International law lacks enforcement aspect it cannot be regarded as law in its strict
sense
No state or group of states hold overwhelming authority, rather power is fragmented
and dispersed.
Under the process of globalisation, the importance of non- state entities has
augmented and it is increasingly difficult to locate a central point or power.
This decentralised horizontal structure essential means that there is no clear
authoritative body in international law that can effectively create law, determine
breaches and sanction accordingly. Hence international law cannot be regarded as
law.
International law can only be law if there are sanctions that can be enforced on the
international stage.
The lack of an authoritative figure to police such sanctions leads one to to conclude
that international law is really not true law.
Skeptics have argued that international law can not be regarded as law because IL
depends on the consent of subjects for its existence
There is no supreme legislature for the creation or amendment of international law
There is no effective machinery for enforcement – there is no international police
force and court of international law which has compulsory jurisdiction
The rules of international law are difficult to ascertain
States do not comply with international law
International law is not real law because it is commonly disregarded, states obeying it
only when they wish to or when it is in their best interest to do so
Austin denies the existence of international law as law because law is equivalent to
commands of sovereign and sense that states could command them because states are
sovereign

3. The principle of pacta sunt servanda, which is contained in Article 26 of the

Vienna Convention on the Law of Treaties, is a restatement of the pillars of
international law. Discuss the meaning of this principle in international law
and its key limitations as far as the normative nature of the purpose of
modern international law is concerned. Use contemporary examples,
relevant case law and general principles of international law to support your
views. (limit to pacta sunt servanda are the peremptory norms of general
international law, called jus cogens (compelling law). The legal
principle clausula rebus sic stantibus, part of customary international law,
also allows for treaty obligations to be unfulfilled due to a compelling change
in circumstances.)
4. **Pacta Sunt Servanda in International Law**:
5.
6. The principle of pacta sunt servanda, Latin for "agreements must be kept,"
is a foundational concept in international law. It means that states are bound
by their agreements and must fulfill their treaty obligations in good faith.
This principle is enshrined in Article 26 of the Vienna Convention on the
Law of Treaties (VCLT).
7.

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 8. **Meaning and Significance**:
9.
10. 1. **Binding Force of Treaties**: Pacta sunt servanda establishes the
binding nature of treaties. Once a state voluntarily enters into a treaty, it is
obligated to perform the obligations it agreed to, provided the treaty is in
force.
11.
12. 2. **Stability and Predictability**: This principle contributes to the stability
and predictability of international relations. States can have confidence that
their counterparts will honor their commitments, which fosters trust and
cooperation in the international community.
13.
14. 3. **Preservation of Legal Order**: Upholding treaty obligations helps
maintain the integrity of the international legal order. It prevents states
from acting in ways that would undermine the effectiveness and credibility
of the treaty system.
15.
16. **Limitations and Considerations**:
17.
18. 1. **Supervening Change in Circumstances (Rebus Sic Stantibus)**: While
states are generally bound by treaties, there are exceptions. If there is a
fundamental change in circumstances that was not foreseen by the parties
and that makes the performance of the treaty radically different, a state may
be released from its obligations under the doctrine of rebus sic stantibus.
19.
20. - **Example**: In the case of Fisheries Jurisdiction (UK v. Iceland), the
International Court of Justice held that a change in the availability of fish
due to an unexpected environmental shift could justify a departure from
treaty obligations.
21.
22. 2. **Jus Cogens Norms**: Pacta sunt servanda is subject to the overriding
principles of jus cogens. Jus cogens norms are peremptory norms of
international law that prevail over any inconsistent treaty provisions. States
cannot use treaties to derogate from these fundamental norms.
23.
24. - **Example**: The prohibition of genocide, slavery, and torture are
considered jus cogens norms. No treaty provision can justify actions that
violate these fundamental principles.
25.
26. 3. **Invalidity of Treaties**: If a treaty is concluded under circumstances
that violate a fundamental rule of international law, it may be considered
void ab initio (from the beginning). In such cases, pacta sunt servanda does
not apply.
27.
28. - **Example**: If a treaty is concluded as a result of coercion, fraud, or a
serious breach of a norm of international law, it may be considered invalid.
29.
30. 4. **Error in Treaty Formation**: If a state can demonstrate that it was

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 mistaken about a fundamental fact or law at the time of treaty formation, it
may be possible to invoke the principle to avoid the obligations.
31.
32. - **Example**: In the case of Nicaragua v. United States, Nicaragua
argued that it had been mistaken about the true meaning and scope of the
treaty. The International Court of Justice held that the mistake did not go to
the essence of the treaty.
33.
34. **Contemporary Examples**:
35.
36. 1. **Iran Nuclear Deal (Joint Comprehensive Plan of Action)**: The United
States withdrew from the Iran Nuclear Deal in 2018, claiming violations by
Iran. While this raised questions about the principle of pacta sunt servanda,
it also underscored the complex interactions between treaty obligations,
rebus sic stantibus, and the interpretation of treaty provisions.
37.
38. 2. **Climate Change Agreements**: The Paris Agreement on climate
change represents a global effort to combat climate change. States that are
parties to the agreement are expected to implement measures to reduce their
greenhouse gas emissions. Compliance with these commitments is a
reflection of pacta sunt servanda.

39. In conclusion, while pacta sunt servanda is a fundamental principle in

international law that emphasizes the binding nature of treaties, it is not
absolute. There are exceptions and limitations, particularly when
fundamental norms of international law or unforeseen changes in
circumstances are at play. These exceptions serve to balance the stability of
treaty relations with the need to adapt to evolving international realities.

 Answer: treaties must be complied with in good faith, pursuant to the

principle of pacta sunt servanda.
 The principle of pacta sunt servanda is a fundamental principle in
international law, which means "agreements must be kept." It is
enshrined in Article 26 of the Vienna Convention on the Law of
Treaties. This principle establishes that states are bound by their
treaty obligations and must fulfil them in good faith.
 Reflects the importance of honouring commitments made through
treaties. It ensures stability, predictability, and trust among states in
the international community. When states enter into a treaty, they
voluntarily assume legal obligations and are expected to fulfil them.
 Good faith is a sincere intention to carry out obligations without
malice. The parties under this treaty must fulfil their promises and
obligations to the best of their abilities.
 This good faith basis of treaties implies that a party to the treaty
cannot invoke provisions of its municipal (domestic) law as
justification for a failure to perform.
 Key limitations are the peremptory norms of general international
law, called jus cogens (compelling law). The legal principle clausula

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 rebus sic stantibus, part of customary international law, also allows
for treaty obligations to be unfulfilled due to a compelling change in
circumstances.
 There is no longer shared expectations, but only for one party.
 Res SIC STANTIBUS- refers to a situation where a contract cannot
be withdrawn from or terminated as long as the conditions and
circumstances surrounding the contract have not fundamentally
changed.
 Clausula rebus sic stantibus is a doctrine that allows for the contract
or treaty to be withdrawn from or terminated when there is a
fundamental change in the circumstances of the contract or treaty. It
helps to escape the principle of ‘pacta sunt servanda’, which
stipulates that all states must abide by the agreements formed
between them in good faith.
 The customary law defence of NECESSITY (Article 25 of ILC allows
for the non-performance of treaty obligations under certain
restrictive conditions when a grave and imminent peril threaten an
essential state interest.
 Force majure – the act of god
Can violation of domestic law on treaty-making be a reason for non-compliance
with international obligations in the form of treaties?
Certain clauses of a treaty may clash with domestic laws of the State. So what do
countries do, then? Can they violate the principle of ‘Pacta Sunt Servanda’ on the
basis of their domestic laws? According to Article 46 and 52 of the Vienna
Convention, that will not be taken as an excuse and the treaty is still required to be
followed.
 Article 27 states, "A 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”. Part two of the article further
elaborates that ‘an act is a violation of it is evident to the State that
such an act would go against the normal practice and good faith.
LIMITATIONS: Nuclear Test Case, Aust v France
The Nuclear Test case, that was a case between Australia and France is still a great
source of anger and agitation between south pacific nations of Australia and New
Zealand as a result of atrocious environmental vandalism by the republic of France.
From the 1960s, the conducting tests of Nuclear weapons began at Mururoa Atoll in
the South Pacific. From 1966 to the early 1970s, this included atmospheric testing.
Australia and New Zealand argued that such practices resulted in radioactive
particles spreading throughout the world. In order to stop the testing, they applied
to the International Court of Justice. The french counter-argued that the court
lacked jurisdiction. They also published a public statement that they no longer
needed atmospheric testing.
Australia and New Zealand were not satisfied with the public statement as nothing
stopped France from changing their minds and continuing atmospheric nuclear
testing.
The International Court of Justice denied their second appeal saying that the
French declaration has already achieved what Australia wanted, that is an end to
nuclear testing.

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 On the question of the reliability of the French statement, the court relied on the
doctrine of Pacta Sunt Servanda (i.e Promises must be kept). They added on “Trust
and confidence are inherent in international cooperation, in particular in an age
when this cooperation in many fields is becoming increasingly essential”.
Just as the very rule of Pacta Sunt Servanda in the laws of treaties is based on good
faith, so also is the binding character of an international obligation assumed by
unilateral declaration.
“Thus interested States may take cognizance of unilateral declarations and place
confidence in them and are entitled to require that the obligation thus created
should be respected.”
In the end, the French did stop the atmospheric testing but they continued
underground testing as long as 1996 causing extreme harm to the geology of
Australia. (THE PRINCIPLE OF PACTA SUNT SERVANDA CAN BE MISUED
THROUGH THE CASE OF AUSTRALIA V FRANCE
 MATERIAL BREACH- If a state persistently and seriously violates
its treaty obligations, the other party may be released from its own
obligations. This is known as a material breach, and it allows the
injured party to suspend or terminate the treaty.
 SUPERVENING IMPOSSIBILITY- If there is a fundamental change
in circumstances, such as a war or a natural disaster, that makes it
impossible for a state to fulfil its treaty obligations, the principle may
be set aside. This is known as the doctrine of rebus sic stantibus.
 JUS COGENS- The principle of pacta sunt servanda cannot be used
to justify or uphold obligations that are contrary to peremptory
norms of international law (jus cogens). Jus cogens norms are non-
derogable and prevail over any conflicting treaty provisions.
(ARTICLE 53)
 IT states that a treaty is void if, at the time of its conclusion it
conflicts with the the peremptory norm of general international law
 If a new peremptory norm of general international law emerges any
existing treaty which is in conflict with that norm becomes void and
terminates
1. Iran Nuclear Deal: The Joint Comprehensive Plan of Action (JCPOA) is an
example of a treaty where the principle of pacta sunt servanda is at stake.
When the United States withdrew from the agreement in 2018, it raised
questions about the commitment to treaty obligations and the impact on the
overall stability of the agreement.
2. Brexit: The withdrawal of the United Kingdom from the European Union
raised concerns about the application of the principle of pacta sunt servanda.
The negotiations between the UK and the EU highlighted the challenges of
balancing treaty obligations with the desire for sovereignty and domestic
interests.
3. Case Law: The International Court of Justice (ICJ) has consistently upheld
the principle of pacta sunt servanda. In the case of Vienna Convention on
Consular Relations (Paraguay v. United States), the ICJ emphasized the
importance of fulfilling treaty obligations and the duty of states to act in
good faith.
4. Jus cogens therefore functions like a natural law that is so fundamental that

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 states, at least for the time being, cannot avoid its force.

5. Rules of customary international law bind all states regardless of whether

they have been codified in a treaty or not. Using case law and general
principles of international law discuss the conditions that must be fulfilled
for a rule to acquire the status of customary international law.

 Answer: international custom is the second source of international

law. UNLIKE treaties refer to a set of unwritten rules that developed
over time as a result of states' repeated acts and beliefs.
 Not contained in any written documents both domestic and
international law (floats in the air)
 It is said that it exists but HOW?
 Something done over a period of time
 Duration does not matter but consistency and generality.
 Acc to ICJ – Practice must constitute constant amd uniform usage
before it will qualify as custom

 The conditions that must be fulfilled for a rule to acquire the status of
customary international law is the presence of two elements, which
are state practice and opinion juris.
 State practice is the material and factual element and represent how
states behave and act.
 Such as official public statements, physical actions, diplomatic
communications, treaties, national legislation, and state activities in
international organisations
 However, in order to create a customary international rule, a state
practice must be both extensive and uniform as it amounts to a
consistent and repeated pattern of behaviour and not just an
exceptional activity .
 It also requires a large number of states to engage in the practice over
a long period of time.

Opinio Juris- the second condition to create a customary international law.

 The opinio juris presents the psychological element
 That reflects the states belief and consent to be bound by that rule
 And they feel obligated under the legal duty to obey a particular practice
which means such customs is accepted by the international community as a
law and not just a habit
 An example is of how states vote the united nations general assembly since it
shows the states true intentions and whether or not they believe that they are
legally obligated to behave in a certain manner.
 A states conduct that violates a customary rule will amount to a breach of
international law and could give rise to state responsibility.
 Much will depend on how other countries respond to the violation as well as

50 | P a g e
 the military and economic power of the wrongdoing country
 While some states decide not to react to that violation of that breach this
acquiescence may be interpreted as an acceptance of the breach
 And an evidence of silence consent other states may be decided to protest
against it by persistently disagreeing with the new customary rule therefore
objecting state will not be bound by that particular custom
 While states would have to have to consent to be bound by a particular
treaty this is not the case with custom especially when the custom gets to the
level of a JUS COGENS through acceptance by the international community
as a non derogable norm like the prohibition of genocide, slavery, torture,
war of aggression or crimes against humanity.

6. How did the court in Barcelona Traction, Light and Power Company Ltd
(Belgium v Spain) (2nd Phase: Merits) ICJ Reports 1970, characterise the
nature of obligations that states owe to each other and how has that
characterisation influenced the application of the principle of obligation erga
omnes in subsequent decisions of the ICJ and the development of international
law in this regard?
Answer: facts of the case are:
 In 1911, a company called Barcelona Traction, Light and Power (BTLPC) was
formed in Canada to create an electric power system in Spain. Due to the
Spanish Civil War in 1936, the Spanish government stopped paying back the
company's debts, which were mostly in British currency.
 After the war, the Spanish government wouldn't allow the foreign money
needed to pay back the debts in British currency. In 1948, a court in Reus,
Spain, declared the company bankrupt.
 Belgium, whose citizens owned shares in the Canadian company, thought this
wasn't fair. In 1962, Belgium asked for compensation from the Belgian
shareholders because they believed Spain had done things against
international law.
 Spain said Belgium's claims weren't fair and had no basis. They had four main
arguments:
 Belgium had stopped a similar case before, so they shouldn't be able to bring
this one.
 They thought the court didn't have the right to decide on Belgium's claims.
 Spain said Belgium couldn't bring these claims because the wrongs were
against a Canadian company, not directly against Belgian citizens.
 Spain said there were ways to solve this problem within Spain's legal system
that hadn't been tried yet.


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 7. Discuss the nature of relationship that exist between rules of customary
international law, jus cogens and obligations erga omnes. How does that
relationship assist in understanding of how African states should interact
with modern international law and its systems?
Answer : article 53 gives rise to the concept of peremptory norms (jus cogens ) in
international law.
 There are general rules of international law that can be modified easily
through the agreement of states and these are referred to as Jus
dispositivum
 In contrast to jus dispositivum, there exists a category of norms of
international law which cannot be modified or derogated by the mere will of
states
 This category of norms of international law are known as peremptory norms
of general international law
 Jus cogens are norms that reflect and protect the fundamental valuesof the
international community, that are hierarchically superior to other norms
that reflect and protect the fundamental values of the international
community, also universally applicable.
 NO DEROGATION IS PERMITTED

 The essence of article 53 is that the rule of hieracrchy it encapsulates will

cause a treaty in conflict with a jus cogens norm not only to be non-
applicable, but wholly without legal consequences – that is null and void
 The higher status assigned to a jus cogens norm under article 53 does not
have a retrospective effect as regards the rights and obligations of states
parties to a treaty in conflict with the norm.
 This is clear from article 64, which deals with the development of a new
peremptory norm of general international law and determines that an
existing treaty, meaning one that came about prior in time to the emergence
of the new peremptory norm is in conflict with the norm, will become void
and terminate.
 If, for example, a jus cogens status is conferred on the prohibition of torture
as defined in, say, the 1975 Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,30 then it will apply to all subjects of international
law, whether they are states, international organisations, insurrectional or
national liberation movements, corporations or individuals.
 Examples of jus cogens- torture, racial discrimination, genocide, slavery,
and piracy.
 Notion of jus cogens originates from article 53 vclt : a treaty is void if it
conflicts with a peremptory norms of general international law.. a
peremptory norm is a norm accepted and recognised by the international
community of states as a whole.. from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character.
 Article 53 clearly prohibits States from entering into an international
agreement (“treaty”) if the provisions of the treaty are in conflict with a
peremptory norm of general international law. A peremptory norm is a
norm which is generally accepted and recognised by States.

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  They are rules of customary law that cannot be set aside by treaty or by
acquiescence but only through the formation of a subsequent customary rule
of the same character.
 These rules are accepted by all countries and can only be changed by a
similarly important new rule. If a peremptory norm is violated, no form of
state agreement, like consent or recognition, can make it okay. Time passing
also can't make an illegal act legal, although states involved can figure out a
way to handle the situation without just approving the breach.

 What is the obligation, Erga Omnes? (which all states owes to the
international community as a whole) towards all

 Refers to the obligation under general international law that the state owes
in any given case to the international community, in view of its common
values and its concern for compliance
 So that a breach of that obligation enables all states to take action, or an
obligation under multilateral treaty that a state party to the treaties owes in
any given case.
 NB : jus cogens norms are universally applicable, secondly jus cogens norms
are superior to other norms of international law and lastly jus cogens norms
serve to protect the fundamental values or interests of the international
community.
 The ILC in Draft conclusion describes norms of jus cogens as norms that
protect the fundamental values of the international community,
hierarchically superior to the other norms of international law and
universally applicable.
 Jus cogens are rules that prevent states from violating fundamental
interests of the international community
 For example the international court of justice in Bosnia Genocide and its
advisory opinion on reservations to genocide convention supported the idea
of jus cogens norms protect the fundamental values and interests of the
international community and no reservations may be made to them
 It is generally accepted that peremptory norms of general international law
enjoy a higher status in the normative hierarchy of sources of international .
 Some authors describe jus cogens as a form of supercustom that holds the
highest position amongst other norms in international law.
 The very fact that no State may derogate from jus cogens norms serves as
evidence of the universal nature of jus cogens norms.
 The above characteristic establishes the relationships between jus cogens
and obligation erga omnes as the universal application of jus cogens norms
means that these norms give rise to obligations which are owed by and to the
international community as a whole.

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 7. Article 38 of the Statute of the International Court of Justice (ICJ) states that
the court shall apply the ‘general principles of law’ and ‘judicial decisions’ in
deciding international disputes. What do these two sources of law mean and what are
the rules that guide their application?

Practice Questions: TOPIC 1

1. With reference to the UN Charter give three reasons why the United Nations was
created.

2. What is the aim of international? What does international law seek to achieve?

3. Summarise essence of views which suggest that international is not law.

4. With reference to article 1 of the United Nations Charter 1945 write a reasoned
opinion on whether international law has achieved its objectives in relation to the
advancement of peace and elimination of the scourge of war. Your opinion should
only deal with the legal and institutional frameworks established under the Charter.

5. Outline and discuss the way(s) in which the Charter of the United Nations (1945)
enables the United Nations, as an organization, to achieve its purposes set out in
article 1 of the Charter. In your analysis, indicate as well, using contemporary
examples, whether the United Nations and its organs have been successful in this
regard or not.

6. “International law merely perpetuates the power of the most powerful”. With
reference to the relationship between African states and international law, write an
opinion (legal) justifying why you agree or disagree with the above statement.

7. It has been suggested that modern international law has done little to further the
interests of African states because it developed from a background of colonialism
and imperialism. (See H Strydom eds, International Law (2016), 32). Essentially,
international law is basically a tool for advancing the interests of powerful Western
nations such as the US and European states. Write an opinion critiquing this
statement.

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PRACTICE QUESTIONS: TOPIC 2

1. Discuss the two requirements that a custom must meet for it to become a rule of
customary international law
2. ANSWER: What is customary international law?
 A source of international law
 There are two components/elements necessary to establish a rule of custom
on the international terrain:
 The difference between international law derived from a treaty and
international law derived from customary international law or state practice
is that customary international law is binding on all states, while
international treaty law binds only the parties to the treaty.
 It is a law that has evolved from the practice or customs of states (STATE
PRACTICE)
 Generally, it is followed by those concerned because they feel legally obliged
or obligated to do so (opinion Juris)
 Kelson termed CIL unconscious and unintentional lawmaking
 State practice (usus) can include:
 Actual activity (acts & omissions) – traditionally, experts focused more on
what countries do rather than what they believe. This is because, its easier to
observe a countrys actions than to know their inner beliefs.
 State practice includes various things like decisions made by courts, laws
passed by governments, governments declarations, advice from legal experts,
public statement, military guidelines, votes in international organisations,
comments on draft texts, national laws, decisions by domestic courts and
arguments in international tribunals.
 The statements made in concrete situations/ disputes are considered state
practice.
 Statements of legal principle made in the abstract ( e.g preceding the passing
of a UNGA Res).
 National legislation and the practice of international organisations.
 State practice must be in accordance with a constant and uniform usage
practiced by the states in question
 State practice must be in accordance with a constant and uniform usage
practiced by the states in question (ASYLUM CASE ICJ)
 While actions are crucial, what a state says about a rule is also significant. A
clear statement from a state about its stance on a rule is stronger evidence
than trying to piece together its position from various actions over time
 Statements made by countries, like diplomatic protests or their absence are
important in deciding if a customary rule exists or has changed. Both spoken
words and silences are taken into account
 Examples from international court cases show that verbal acts are treated as
evidence of practice. Diplomatic protest is particularly a significant in
determining if a customary rule has been established or changed.
 How a country votes on resolutions in the United Nations general assembly
can serve as both evidence of practice and a reflection of the states belief in a
particular rule.

55 | P a g e
  Thus in assessing the relevant behaviour of states, “we look to words as well
as deeds , and to silences as well as inactions”
 Inaction or silence matters: when a state stays quiet or doesn’t act when
action might be expected, it can still be considered a form of practice. For
instance, not protesting against a certain law might imply acceptance under
customary international law.
 Hence when a state does not on=bject or protest when it is expected to, it can
be seen as accepting a certain practice. This was seen in the SS. LOTUS case
where the absence of protest was considered when deciding if a certain
jurisdictional rule was allowed.
 Similarly in the NOTTEBOHM case, the international court of justice looked
at the fact that some countries didt provide protection to a naturalized
person who had essentially cut ties with their original country.
 It is also not enough for states to just talk about what they might do. Real
actions on the ground are what truly count as state practice for establishing
customary international law.
 An example in S V PETANE : in this case, judge CONRADIE emphasized
the importance of looking at what states actually do in practical situations,
rather than what their representatives say in heated debated at the UN
 Customary international law is built on the actual behaviour of states not
just their promises or speeched. Judge Conradie stressed the need to rely on
practice rather than political statements
 For a practice to become a customary rule, it must be consistently and
uniformly followed by states, the principle was highlighted in the ASYLUM
CASE, which dealt with the granting of asylum to political refugees.
 The practice in question must be general, which means that it must be
sufficiently widespread and representative as well as consistent
 The material that makes up EVIDENCE showing state conduct or behaviour
with regard to a specific issue may come from a wide range of sources such
as :

I. Diplomatic correspondence
II. Opinions of state law advisers
III. Historical records
IV. Voting patterns
V. Ratification patterns in respect of treaties
VI. Practice of international organisations

 Asylum case:
 the legal question was whether the granting asylum to political refugees
had become a general state practice for embassies in certain Latin American
countries.
 The court held that the state practice in question was not consistent and
uniform usage. ‘Uniform’ does Not ential universal state practice (whereby
100% of states act in a particular way), but must be widespread and
general.

 Arrest Warrant case: The legal question was whether ministers of foreign

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 affairs were entitled to immunity from criminal jurisdiction.

 Without enough evidence to that effect, the court affirmatively held that
there is such a state practice in existence. Evidence of state practice: treaties,
decisions of national courts, statements of governmental policymakers,
reports of the international law commission. Sometimes, consent can be
inferred from the inaction of one state.
OPINION JURIS
 All about obligation: a state must feel obliged to act in a particular way
 It aids in turning the actions of countries into binding legal rules
 North Sea continental shelf case, the two-element requirement for the formation
of customary international law was confirmed as follows:
-not only must the acts concerned amount to settled practice, but they must also be
such or be carried out in such a way as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e. the existence of a subjective element, is implicit in the very notion of the
opinion juris sive necessitas. The states must therefore feel that they are conforming to
what amounts to legal obligations. The frequency or even habitual character of the
acts is not in its self-enough.
 State actions can sometimes be unclear or open to interpretation. Opinion Juris
is important because it helps clarify whether a state's actions are meant to create
a new legal rule or not.
 Opinion Juris also helps distinguish between actions done out of politeness
( comity) and those that set precedents. For example, in the SS LOTUS CASE,
France argued that not prosecuting foreign officers for accidents on the high
seas showed that international law did not recognise effects jurisdiction.
 However, the court disagreed because there was no evidence of a conscious belief
that such prosecutions violated customary international law.
 Remember: Article 38 of the ICJ is said to reflect the formally recognised
sources of international law.
 Article 38(1) b defines customary international law as “international custom, as
evidence of a general practice accepted as law”
 While state practice crystallises the content of the relevant rules of conduct, it is
the opinio juris that transforms norms of behaviour into legally binding rules of
customary law
 From article 38(1) can be derived that the first requirement for the formation of
customary international law is “a general practice”. This criterion can be
objectively determined, as it is the actual practice of states. It is sometimes
proposed that this “practice” is limited to positive act, and not statements and
claims.60 Within the international society the prevailing view is that not only
verbal acts, but also omission, abstentions and even silence may constitute state
practice
 Evidence of state practice can be found in a variety of forms, such as published
material, statements from officials and the state’s laws and judicial decisions.
However, the primary source for evidence of state practice, correspondence with
other states and advice from the state’s legal advisers are seldom published
 The ICJ has tried to shed light on what is to be seen as actual state practice in
regards to Article 38(1) b.
 There is no requirement of complete uniformity, but in the Anglo-Norwegian

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 Fisheries case, the ICJ held that substantial uniformity in the practice is
required
 Provided that consistency and generality are established, there is no particular
duration of time needed.
 Rules regarding the continental shelf and airspace have both developed in a
relatively short time.
 In the North Sea Continental Shelf case, the ICJ stated that “the passage of only
a short period of time is not necessarily, or of itself, a bar to the formation of a
new customary international law” as long as the state practice “within the
period in question” has been “both extensive and virtually uniform”.
 Opinion juris- According to article 38(1) b of the ICJ Statue “general practice”
will not become customary international law until it is “accepted as law”,
meaning that the practice is carried out by a sense of legal obligation.

 The North Sea Continental Shelf Cases confirmed that both State practice (the
objective element) and opinio juris (the subjective element) are essential pre-
requisites for the formation of a customary law rule. This is consistent with
Article 38 (1) (b) of the Statute of the ICJ.

2. Article 38 of the Statute of the International Court of Justice list custom as one
of the sources of international law. With reference to the jurisprudence of the ICJ
discuss what constitutes a rule of customary international law.

3. Discuss the nature of relationship that exist between rules of customary

international law, jus cogens and obligations erga omnes.

4. Rules of customary international law bind all states regardless of whether they
have been codified in a treaty or not. Using case law and general principles of
international law discuss the conditions that must be fulfilled for a rule to acquire the
status of customary international law.

5. Article 38 of the Statute of the International Court of Justice (ICJ) states that the
court shall apply the ‘general principles of law’ and ‘judicial decisions’ in deciding
international disputes. What do these two sources of law mean and what are the rules
that guide their application?

Discuss the circumstances under which wrongfulness on the part of a state may be
precluded under international law. (15)
• These are the defences that may be raised. Contained in art 20-25 of ARSIWA
• Consent: (Art 20)
(a) State give consent to another to commit IWA in its territory
(b) Extension of the principle of volenti non fit injuria
(c) Types of acts (military action, arrest of suspects, foreign judicial enquiry
etc
(d) Validity: can it be implied from conduct of parties?

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 (e) Consents for acts violating peremptory norms not valid
Self- Defence: (art 51 of UN Charter; 21 of ARSIWA)
Must comply with UN Charter—should be understood as permissible exception to use
of force (Nuclear Weapons Advisory Opinion)
Accrues individually or collectively
Countermeasures: art 22
Countermeasures don’t amount to IWA (Gabcikovo-Nagymaros case)
Example: imposition of sanctions for breach of int’l obligations
Not available: to preclude peremptory obligations; to defeat prohibition against use of
force
Conditions: conform to art 2 of ARSIWA; proportionate; procedure including notice

Discuss the way(s) in which the Charter of the United Nations (1945) enables the United
Nations and its organs to achieve “international cooperation in solving international
problems of an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights”, as set out in article 1(3) of the Charter.

To what extent has the United Nations and its organs achieved the purpose you have
discussed in (a) above? Use contemporary examples to support your arguments.

Describe the essential elements of the doctrine of Rebus sic Stantibus as applied in the
law of treaties
There is an uprising in the Kingdom of Kudu. The youths have revolted against the
regime of their monarch, King Ezebi Babu, and they have vowed to overthrow the
monarch and replace him with a democratically elected government. The youths,
having mobilised professionals and other segments of society, are holding daily
demonstrations in the streets of Jola, Kudu’s capital. After days of demonstrations,
King Babu became tired of them. As a result, he sent his elite military to the streets to
whip the “cockroaches and rats” back to their homes. Following the military action
several demonstrators died and some sustained serious injuries. Five neighbouring
states, fearing that the situation might deteriorate further, formed themselves into a
“coalition of the willing” and sent a joint military force into Kudu to “protect the
civilian population”. However, the coalition forces went to the King’s palace and placed
him under confinement. The coalition forces have also announced that they will not
leave Kudu unless there is a peaceful democratic election and Babu is removed from
office democratically. You are a senior official of King Babu’s government tasked with
preparing a case to be filed against the “coalition of the willing” countries at the
International Court of Justice (ICJ). Write a concise memorandum discussing the
violations of international law, or international crimes, committed against the Kingdom
of Kudu over which the ICJ may exercise jurisdiction.

Unlawful Use of Force

The coalition's intervention in Kudu, while framed as a mission to "protect the civilian
population," involved a direct use of military force against the sovereign state of Kudu.
This action constitutes a violation of Article 2(4) of the United Nations Charter, which
prohibits the threat or use of force against the territorial integrity or political
independence of any state.
2. Violation of Sovereignty

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Placing King Ezebi Babu under confinement and dictating conditions for his removal
from office is a clear infringement on the sovereignty of the Kingdom of Kudu. It
interferes with Kudu's internal affairs and constitutes a breach of customary
international law principles.
3. Failure to Seek Authorization from the Security Council
The coalition's intervention bypassed the United Nations Security Council, which is the
primary organ responsible for the maintenance of international peace and security.
This contravenes Article 39 of the UN Charter, which vests the Security Council with
the authority to determine threats to peace and authorize necessary actions.
4. Possible Violations of the Responsibility to Protect (R2P)
While R2P may provide a framework for international intervention in cases of mass
atrocities, its application requires a mandate from the Security Council. The coalition's
unilateral action may raise questions regarding the legitimacy of their intervention
under R2P.
Conclusion
The "Coalition of the Willing" has engaged in actions that flagrantly violate established
principles of international law. These violations include the unlawful use of force,
infringement on sovereignty, and failure to seek authorization from the Security
Council. The Kingdom of Kudu has valid grounds to file a case at the International
Court of Justice seeking redress for these violations.
Please let me know if you require further information or if you would like to proceed
with the formal filing of the case. WHAT CONSTITUTES HUMANITARIAN AID?
ANALYSE NICARAGUA CASE AND APPLY IT TO THE ABOVE
The Nicaragua Case, officially known as the "Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America)," is a landmark decision
by the International Court of Justice (ICJ) that took place in the 1980s. This case
provides valuable insights into the use of force and self-defense under international law,
which can be applied to the situation in the Kingdom of Kudu.
Background on the Nicaragua Case:
In this case, Nicaragua accused the United States of America of arming and supporting
rebel groups (known as the Contras) in Nicaragua, as well as mining Nicaraguan ports.
The United States justified its actions on the grounds of collective self-defense of its ally,
Honduras, and argued that the ICJ lacked jurisdiction over the matter.
Application to the Kingdom of Kudu:
1. Unlawful Use of Force: In both the Nicaragua Case and the situation in Kudu,
there is a clear instance of the unlawful use of force. In Nicaragua, the U.S.
supported armed groups, and in Kudu, the "Coalition of the Willing" used
military force without Security Council authorization.
2. Self-Defense and Imminence: The U.S. invoked self-defense in the Nicaragua
Case, arguing that it was acting to protect its ally, Honduras. However, the ICJ
ruled that the use of force must be a response to an armed attack that is
imminent. Similarly, in Kudu, the coalition's military intervention goes beyond
the scope of self-defense, as there was no imminent armed attack against any of
the coalition states.
3. Sovereignty and Non-Intervention: The Nicaragua Case reinforced the
principles of state sovereignty and non-intervention. The U.S. intervention in
Nicaragua was seen as a violation of Nicaragua's sovereignty. Similarly, in Kudu,
the coalition's actions in confining King Babu and dictating conditions for his
removal infringe upon Kudu's sovereignty.

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 4. Role of the Security Council: The Nicaragua Case emphasized the importance of
seeking authorization from the United Nations Security Council for any use of
force that is not in direct self-defense. This principle applies to the situation in
Kudu, where the coalition acted unilaterally without Security Council approval.
5. Responsibility of the Coalition of the Willing: The coalition's actions in Kudu,
including the confinement of King Babu and dictating conditions for his
removal, could be viewed as an attempt to impose their own political will on the
internal affairs of Kudu, which runs counter to established principles of
international law.

Conclusion:
Drawing from the Nicaragua Case, it is evident that the "Coalition of the Willing" in
the Kingdom of Kudu has engaged in actions that violate key principles of international
law, including sovereignty, non-intervention, and the prohibition of the unlawful use of
force. These violations provide substantial grounds for the Kingdom of Kudu to seek
legal redress at the International Court of Justice.

Practice Questions: Topic 4

1. What does the doctrine of state responsibility entail?

2. Under what circumstances can an internationally wrongfully act be attributed to a

state?

3. To what extent are states liable for internationally wrongful acts that they commit?

4. Discuss the circumstances under which wrongfulness on the part of a state maybe
precluded under international law.

5. The Republic of Wind is supporting an internal rebel organisation fighting against the
state of Water. The rebel organisation’s aim is to overthrow the government in the
state of Water. Over a span of about five years, the Republic of Wind has provided
money, training and even asylum to members of the rebel organisation. During this
time, the rebel organisation has been responsible for abductions, displacements, and
bombing of schools and market places that have resulted in deaths and injury to
innocent people, mainly women and children. The State of Water now wishes to bring
a claim (at the International Court of Justice) for compensatory remedy against the

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 Republic of Wind on the grounds that all the acts committed by the rebels should be
attributed to the Republic of Wind.

Discuss the rules of attribution as set out in the Articles for Responsibility of States
for Internationally Wrongful Acts and advice on the merits of this claim.

Question 3

(a) Rules of customary international law bind all states regardless of whether they have
been codified in a treaty or not. Using case law and general principles of international
law discuss the conditions that must be fulfilled for a rule to acquire the status of
customary international law.
(15)

(b) Summarise the essence of views that suggest that international is not law.
(10)

(c) Explain the principle of fundamental change of circumstance in art 62 of the Vienna
Convention on the Law of Treaties (VCLT) and show why it has very limited
application in modern international law.
(10)
[35]

END OF THE EXAMINATION PAPER

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