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201 2019 1 b - tut letter

International law (University of South Africa)

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Tutorial Letter 201/1/2019

International Law
LCP4801

Semester 1
DEPARTMENT OF PUBLIC, CONSTITUTIONAL
AND INTERNATIONAL LAW

IMPORTANT INFORMATION:
This tutorial letter contains important information
about your module.

BARCODE

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CONTENTS
Page
1. INTRODUCTION…………….………………................................................................................... 3
2. FEEDBACK ON THE COMPULSORY ASSIGNMENT………………………………………………. 3
3. FEEDBACK ON THE OCTOBER/NOVEMBER EXAMINATION PAPER…………………………. 6
4. THE MAY/ JUNE 2019 EXAMINATION……………………………………………………………… 15
5. CONCLUSION……………………………………………………………………………….………….. 16

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Dear Student

1. INTRODUCTION

This is the last tutorial letter for this semester. It contains commentary on the compulsory
assignments for this semester and the October/November 2018 examination paper. You will also
find a brief indication of what you can expect in the examination in May/June 2019.

2. FEEDBACK ON THE COMPULSORY ASSIGNMENTS

ASSIGNMENT 1 (18 MARCH 2019)

Unique number: 657461
Total: 25 Marks

Write an essay, in which you discuss the contribution of Africa to the history and
development of public international law. [25]
In this assignment we were looking for the following:
 Your knowledge and understanding of the history and development of international law in
general.
 Your ability to differentiate between the all four periods of this development;
 Your ability to synthesise information coherently and logically.

We were also mindful of the fact that each student had an individual and unique approach to the
assignment question and that the length of your assignment was limited. The information below
is therefore not a model answer, nor a comprehensive or an exhaustive one: It is simply an
example of some of the issues, which you could have mentioned:

Suggested answer:
Your answer should have covered the following, as detailed in Strydom pages 5 to 31.
You were expected to cover the period that characterised the beginnings of the modern state
system; the period from the 1500s to 1648; the emergence of modern Europe and its
accompanying economic expansion and socio-political transformations. Your answer should have
included a discussion of the Westphalian model, sovereign equality of states and respect for their
independence as well as the contribution of eminent writers of the time, such as van Bynkershoek,
Grotius etc.
The next era in your discussion should have been the period from 1648 to 1815 which was
characterised by conflict between the three new powers in Europe, namely the Netherlands,
Britain and France.
This would be followed by the period from 1815 to 1914 which was characterised by occupation
of African territories by European forces and the legitimation of this by the Berlin Conference. This
discussion would be followed by the period after the First and Second World Wars, and how these
two major occurrences shaped international law.
Having done that, you were expected to use the articles on decolonisation of international law
(third world approaches to international law) to debunk, criticise and analyse whether Strydom

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and other scholars have provided an accurate picture of the history and politics of international
law development.
Assignments, being research-oriented in their nature, required that students read widely, analyse
content critically and not to just cut and paste what a few authors have written.

ASSIGNMENT 2 (1 APRIL 2019)

Unique number: 729777
Total: 15 Marks

State whether the following statement is true or false.

1. Two sources of international law include custom and jus cogens.

False: Article 38 of the ICJ statute lists custom, treaties, general principles and scholarly
writings as sources of international law.
2. For a state to meet the requirements of statehood contained in the Mondevideo
Convention, it must have a minimum of 10 000 inhabitants.
False: The Montevideo Convention requires a permanent population and does not
stipulate a minimum or maximum size. See Strydom 36 – 42.
3. In terms of the Statute of the International Court of Justice, individuals whose human rights
are violated by government agents can approach the court for redress.

False: The ICJ Statute stipulates that the court only has jurisdiction over states. See article
34(1) of the Statute which provides that: "Only states may be parties in cases before the
Court".
4. Depending on the circumstances of each case, a state is permitted to derogate from a
norm of jus cogens if doing so would be in the interests of justice.
False: States cannot ‘contract out’ of jus cogens – such a norm is absolutely binding on
all states. See Strydom 84; Study Guide 30.
5. In tracing the history and development of international law, regard must only be had to the
histories of the Greeks and the Romans, and to some extent, early European nation states.
False: Africa's contribution also needs to be taken into account as demonstrated by the
articles written by Umozurike, Elias and Smith. See pages 2, 3 of the Study Guide.
6. The right of state to act in self-defence is provided for in article 51 of the UN Charter.
True: The UN Charter provides in article 51 that, "Nothing in the present Charter shall
impair the inherent right of individual or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security…"
7. Territorial jurisdiction means that states are not permitted under international law to
prosecute offenders for conduct which occurred outside the state's territory.
True: Territoriality as a jurisdictional link means that states have a right to prosecute
offenders for conduct that occurred on their territory (waters, land and airspace). For a

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state to prosecute an offender for conduct which occurred outside their territory, some
other link must exist, such as passive personality (victim is a national of that state),
nationality (the perpetrator is a national), protective interest (the state is safeguarding some
important interest) or even universal jurisdiction. See Strydom 242 – 246; Study Guide 80).
8. In terms of article 35 of the Vienna Convention on the Law of Treaties, a state can only be
bound by obligations arising from a treaty if it is a party to that particular treaty.
True: The Convention provides in article 35 that, "An obligation arises for a third State from
a provision of a treaty if the parties to the treaty intend the provision to be the means of
establishing the obligation and the third State expressly accepts that obligation in writing".
9. In terms of international law, a state is under a legal obligation to exercise diplomatic
protection on behalf of a national who has been injured abroad.
False: States have a right, not a duty, to exercise diplomatic protection. See page 59 of
the Style Guide.
10. Individuals are considered as full subjects of international law.
False: States, and not individuals, are subjects of international law, since this legal
discipline serves to regulate their relations inter se. See page 2 Study Guide.
11. In terms of the UN Charter, the General Assembly of the United Nations has a primary
responsibility for the maintenance of international peace and security.
False: The primary organ charged with maintaining (17) LCP4801/1 peace and security is
the Security Council. See pages 16, 69 of the Study Guide; article 24 UN Charter.
12. The principle of universality entails that a state has jurisdiction over acts committed in its
territory only.
False: The principle of universality (otherwise known as universal jurisdiction) allows a
state which has no other connection with either the accused, the victim or the crime to
exercise jurisdiction over that crime as an agent of all humankind. See Strydom 250 – 252;
Study Guide page 80).
13. The jurisdiction exercised by the International Criminal Court is regarded as
complementary to that of domestic courts.
True: See article 17 of the ICC Statute, which stipulates that the ICC may only be seized
of a matter if the state which has jurisdiction over it is either unwilling or unable to proceed
with it.
14. The terms diplomatic immunity and diplomatic protection can be used interchangeably and
they refer to the safety and security of diplomats.
False: Diplomatic Immunity refers to protection enjoyed by diplomats by virtue of the
offices they hold. This privilege allows them to stay outside the jurisdiction of the courts of
domestic foreign courts. Diplomatic protection refers to ‘the invocation by a State, through
diplomatic action or other means of peaceful settlement, of the responsibility of another
State for an injury caused by an internationally wrongful act of that State to a natural or
legal person that is a national of the former State with a view to implementation of such
responsibility'. See page 59 Study Guide.

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15. The International Criminal Court can exercise jurisdiction over matters involving
perpetrators who are nationals of states that are not party to the Rome Statute.
True: Article 13(b) of the Rome Statute permits the UN Security Council to refer matters
to the ICC for investigation. Matters referred in this way dispense with the usual
requirement of territorial and nationality jurisdictional links. In that regard, the ICC exercises
jurisdiction even over perpetrators who are nationals of states that are not party to the
Rome Statute. The case of Omar Al Bashir of Sudan is instructive.

3. FEEDBACK ON THE OCTOBER/NOVEMBER EXAMINATION PAPER

Before we provide feedback on the individual questions, we would like to point out some common
mistakes students made when answering this examination paper, in the hope that you will not
repeat them.

Firstly, many students misread the questions. They consequently provided a lot of irrelevant
information for which we could not award any marks, and which must have caused them severe
time constraints, which were reflected in the rest of their answers. Please do not let this happen
to you. DON’T PANIC: READ THE QUESTION SLOWLY AND CAREFULLY, give yourself a few
moments to decide what information you should provide (although you will see that we have been
quite explicit in this regard) and let yourself be guided by the mark allocation for each question.

Secondly, it was obvious that many students had not read the prescribed material. As a result,
they could not answer those questions satisfactorily. Do not underestimate the time needed to
prepare for the questions we ask. It is imperative that you do the extra reading. DOWNLOAD THE
MATERIAL FROM THE LIBRARY WEBSITE and summarise it.

Lastly, despite anything you may have heard to the contrary, it is possible to pass this course if
you work steadily throughout the semester.

Let’s now look at the questions in the October/November 2018 examination.

SECTION A: ANSWER ALL THE QUESTIONS IN THIS SECTION

QUESTION 1

1.1. Indicate whether each of the following statements is true or false. You must
substantiate your choice in each instance.

1.1.1. Individuals (natural persons) are subjects of international law. (3)

 False
 States, and not individuals, are subjects of international law.
 Individuals only benefit from the protection of international law, but they do
not qualify as subjects. Only sovereign states do.

1.1.2. In international law, the primary sources of international law are judicial
decisions of national courts only and the teachings of the most highly
qualified publicists. (3)
 False.
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 Article 38(1)(d) of the ICJ Statute stipulates that judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means, [shall apply] for the determination of rules of law.
 Whilst national court decisions may be considered by the ICJ, Article 38(1)
envisages decisions from other international courts and tribunals and the ICJ
itself.

1.1.3. Where a foreigner from State X violates the rights of a nationals from State Y
inside a marine vessel sailing on the high seas, but registered in State Y, none
of these two states can claim jurisdiction over the perpetrator. (3)
 False
 State X can claim jurisdiction based on nationality since the alleged
perpetrator is a national of State X.
 State X can claim jurisdiction on the basis of passive personality, since its
nationals were violated.
 Any other state can claim jurisdiction on the basis of universal jurisdiction.

1.1.4. The reference to ‘territory’ in the requirements of statehood set out in the
Montevideo Convention on the Rights and Duties of States 1993 only relates
to land of a size to be determined by the United Nations. (3)
 False
 Territory also includes a state’s territorial sea and the airspace above the
territory of that state.
 There is no predetermined size for an aspirant state, for example the Vatican
City is less than half a kilometre in size.

1.1.5. Although similar in outlook, the ICC and the ICTR are both international
tribunals with different mandates and temporal jurisdiction. (3)
 True
 The International Criminal Tribunal for Rwanda (ICTR) was established by
Security Council Resolution 955/1994 and was an ad hoc tribunal
established for temporary specific purposes.
 The ICC was established by the Rome Statute of the International Criminal
Court and is a permanent tribunal.

1.2 Briefly explain the differences AND similarities between international law and national
law. (10)

A paragraph, which incorporates the following points:

Differences:

Public international law National law

1 There is no legislator in 1 Full legislative process

international law

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2 There is no court to enforce 2 Fully developed judiciary

international law (i) precedent system
(i) no precedent system applies
(ii) state judge in own case (ii) nemo iudex in sua causa

3 No executive to enforce 3 Full executive machinery for

judgments – poorly developed enforcement of judgments
sanctions

4 Subjects are generally states 4 Subjects are individuals or

legal persons

Similarities:

International law National law

1 Comprises accepted norms 1 Comprises accepted norms

prescribing state behaviour prescribing behaviour

2 Uses writings etc of jurists 2 Writings of jurists and

rather than morality precedent freely used

3 Can be consciously altered by 3 Can be consciously altered

treaty by statute

QUESTION 2
With reference to S v Banda & others 1989 (4) SA 519 (BG), discuss the declaratory and constitutive
theories regarding unilateral recognition of states in international law as discussed in the quotes
above. Include in your discussion the role of such recognition in determining whether a given
entity has the capacity to enter into relations with other states, which is an objective requirement
for statehood provided for by the Montevideo Convention (1933). That is to say, you have to
discuss both unilateral recognition of states and the objective criteria for statehood, and thus the
relationship between these issues. [25]

For an entity to qualify as a state, it must meet all the requirements for statehood. To this end, the
Montevideo Convention of 1933 provides the following: “The state as a person of international
law should possess the following qualifications (a) a permanent population; (b) a defined territory;
(c) government; (d) capacity to enter into relations with other states.”
Permanent population
The ‘permanent population’ requirement does not mean that there is a required minimum number
of people. Furthermore, the fact that a population is nomadic (for example the tribes on the Kenya-
Ethiopia border) does not affect statehood adversely, as was pointed out by the court in the
Western Sahara Case. What is important for the purpose of the ‘permanent population’

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requirement, is that the population lives in accordance with an organised, recognisable social and
political structure with a clear chain of command.
Defined territory
This is a requirement, which flows from the fact that states are territorial units, in other words,
they have borders. It is important for a state’s territory to be defined. There is no required minimum
size. It also does not mean that the territory must have undisputed borders (as in the present
case). An example is reflected in the Israel - Palestine conflict: despite continuing disagreement,
Israel still satisfies the requirements for statehood.
Furthermore, the territory need not necessarily form one single unit. What is important is that the
state must be sufficiently homogenous to be able to perform its government functions effectively.
Article 4 of the UN Charter requires that states be able and willing to meet their obligations in
terms of the Charter. In other words, there must be a stable community within an area over which
its government has control. If the territories are so dispersed that such control cannot be exercised
in all of them, statehood will not be granted.
The case of Van Deventer v Hancke & Mossop may also be cited as an example of a case where
a community of people, which was subject to a specific government, qualified as a state despite
the fact that it had no territory.
Effective government
In order to satisfy the requirements of statehood, the entity must have a government which is
independent of any other authority, and it must have legislative and administrative competencies.
Brownlie, suggests some guidelines which can be used to asses a government’s effectiveness.
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?

Capacity to enter into relations with others states (foreign affairs capacity)
This requirement means that a state must be independent of any other authority in the exercise
of its foreign relations. In other words, the entity must be regarded as sovereign. However, the
fact that a state has relinquished certain aspects of its sovereignty, will not necessarily deprive it
of statehood (R v Christian). What is important for the establishment of statehood and the
accompanying international legal personality, is the presence of external sovereignty.
Furthermore, it must be pointed out that this requirement is also closely linked to the issue of
recognition – if the other members of the international community refuse to recognise it and enter
into relations with it, the entity will for all practical purposes be deprived of its capacity to enter
into relations with other states.
There are two further controversial requirements, namely respect for human rights and self-determination,
but they have been cited on occasions as such. For example, when the USSR dissolved, Western states

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proclaimed that recognition of the emerging states will be subject to their willingness and ability to uphold
the human rights of their subjects.

The “requirement” of ‘recognition’ is not specifically mentioned in the Montevideo Convention.

However in practice it is a crucial factor which underlies the ability of a state to enter into relations
with other states. If insufficient number of states were to recognise a state, it will be doubtful it will
be considered to have the ability to enter into international relations, and it will therefore be unable
to satisfy the requirements of the Montevideo Convention.
The dilemma as to whether or not recognition is one of the requirements of statehood, has given
rise to two theories: the declaratory theory and the constitutive theory.
Proponents of the constitutive theory maintain that the act of recognition is one of the
requirements for the creation of international legal personality. This theory, however, is not without
its shortcomings. First, it is not clear what the position of a state as an unrecognised entity would
be – could it behave as it chooses, without observance of the international legal order? It is
furthermore not clear what its position would be if it is recognised by some states only.
The proponents of the declaratory theory therefore advocate that the act of recognition is not a
requirement for statehood, and that such an act merely acknowledges an existing state of affairs.
In other words, statehood and international legal personality arise the moment the requirements
of the Montevideo Convention have been fulfilled. This would also imply that there is a legal duty
on other states to recognise an entity which complies with the Montevideo requirements.
The reality, of course, is that although states do take into account whether the other four factual
requirements have been met, the decision to recognise may be motivated by political ideology.
This may prompt a state to recognise an entity prematurely, or to deny it recognition.
hese two theories have been evaluated by a South African court in the case of S v Banda: The
accused were charged with high treason based on an attempted coup in Bophuthatswana. The
accused claimed that under international law Bophuthatswana was not a state because its
creation had been universally condemned by the international community. If it was not a state,
they couldn’t possibly owe allegiance to it and therefore could not be guilty of treason against it.
The court examined both theories in order to determine whether Bophuthatswana was a state or
not.
Since the constitutive theory emphases the act of recognition itself, it adds recognition as a fifth
requirement for the creation of international legal personality. The court criticised this theory for
being positivistic, subjective and arbitrary.
In terms of the declaratory theory statehood exists objectively. An entity becomes a state under
international law the moment the four requirements of the Montevideo Convention have been
fulfilled. In terms of this theory the act of recognition does not bring into being a state which does
not already exist. In other words, recognition is no more than a formal acknowledgement of an
already existing circumstance.
The court therefore approved of the declaratory theory: The court observed that the declaratory
theory was objective, that it supported those requirements for statehood which were based on
well-established criteria of international law, and in addition it was politically and ideologically
neutral.
The court pointed out that the declaratory theory was supported by a larger number of experts
than the constitutive theory and that it was also supported by the Montevideo Convention.

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QUESTION 3:
Since its independence in 2011, Africa’s newest state, South Sudan has not enjoyed
sustained peace. Both government and opposition forces have been engaged in a civil war
that has ensured the death of tens of thousands of people and over 2 million people are
currently displaced. Reports by the United Nations, African Union and non-governmental
agencies have shown that both government and rebel forces have been involved in
atrocities that can be deemed as war crimes, and crimes against humanity. This situation
has resulted in some calling for intervention through the use of force to stop these crimes.
Based on the scenario above, answer the following questions:

a) In terms of Article 4(h) of the African Union Constitutive Act, list and briefly explain
the grounds for intervention in the affairs of its member states. [10]
b) If you agree that the AU can intervene through the use of force, discuss whether
such intervention requires Security Council authorisation. [10]
c) Provide an opinion on the importance of AU intervention in South Sudan. [5]

Memo:
a) The AU can intervene in respect of grave circumstances such as war crimes (1) war crimes
(1) genocide (1) and crimes against humanity (1). War crimes include killing of protected
persons; mistreatments committed against any persons such as torture, mutilation, sexual
violence, attacks on buildings dedicated to religion, education, art and science and
historical monuments (2). Crimes against humanity include widespread attack against
civilian population such as murder, enslavement, enforced disappearance of persons,
deportation and forcible transfer of population (2). Genocide includes killing members of a
particular group, causing bodily harm to members of a group, physical destruction of a
group (2).
b) The UN generally prohibits the use of force (1). There are exceptions under article 51 of
the UN Charter (individual or collective self-defence if an armed attack occurs against a
member state) (3) Such action must be authorised by the Security Council under Chapter
VII (1). Article 53 of the Charter notes that regional organisations or agencies must first
obtain authorisation of the Security Council before undertaking enforcement actions (1) If
the intervention takes place on the invitation of the member state, then authorisation is not
needed (1). Article 4(h) can be seen as advance consent given by member states (1) but
it can be argued that since the AU has committed itself to international law, it still has to
get authorisation before intervention (1). In conclusion, the AU has to get authorisation
from the UN before intervening in South Sudan (1)
c) Here students have to show how the commitment to its principles obligates the AU to
intervene on the grounds of Responsibility to Protect (R2P) in order to protect civilians. (5)

QUESTION 3

State X and state Y are neighbouring states. The border between them has become
stronghold of a militant organisation (W), openly opposed to the ideology of state Y.
Because the militants’ State X and state Y are neighbouring states. The border between
them has become the dislike is shared by state X, it turns a blind eye to W’s activities.
Members of W continue to acquire weapons and to stockpile them near the border. One
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day W’s members kidnap two soldiers from state Y. State Y considers this to be an act of
war, it invades state X and bombards the border area and surrounds. State Y justifies its
actions by claiming that it acted in anticipatory self-defence and that its actions amount to
a lawful reprisal in terms of international law. Discuss the validity of state Y’s claim and
analyse the requirements for self-defence contained in article 51 of the UN Charter as well
as those for lawful reprisal. [25]

Reprisal

In this instance the state who has suffered as a result of the breach of international law, performs
an action, which at first glance appears to be unlawful (such as freezing all of the violator-state’s
assets found in its territory). Because the injured state has retaliated against the other state’s
illegal action, the act of reprisal will be permissible. It will be considered ‘lawful reprisal’, provided
that:
 It is indeed in response to a prior illegal act
 It is carried out in light of restoring equilibrium in international relations
 It is proportionate to the injury sustained
 It has been used as a last resort, which means that the injured state must have first
attempted rectification.

Self-defence

One exception to the rule prohibiting the use of force is an act carried out in self-defence. Self-
defence is governed by Article 51 of the UN Charter, which states: “Nothing in the present Charter
shall impair the inherent right of individual or collective self-defence if an armed attack occurs
against a member of the United Nations, until the Security Council has taken measures necessary
to maintain international peace and security.” This article further provides that the self-defence
measures taken by the member state must be reported to the Security Council immediately and
that they shall not in any way affect the authority and responsibility the latter to take at any time
such action as it deems necessary in order to maintain or restore international peace and security.

The following characteristics are important:

 The act taken in exercising the right to self-defence is valid only until the Security Council
acts.
 The purpose of the use of force must be clear: to defend oneself.
 The force exercised in self-defence must be proportionate to the posed threat.

It is not clear whether the right to self-defence can be exercised only if an armed attack occurs
(whether Art 51 amounts to an exclusive and complete formulation of the right), or whether Art 51
allows anticipatory self-defence (whether inherent right indicates that Art 51 has preserved the
pre-Charter customary law definition of the right to self-defence, which would include the right to
launch a pre-emptive strike). Under customary international law the right to use force in self-
defence was justified if the need for it was instant, overwhelming and immediate, and there was
no viable alternative action.
The last 5-7 marks should be given to the students for applying the above principles to the set of
facts. The feasibility of their conclusion should be judged individually, on the basis of their
arguments and whether they have indeed interpreted the law correctly.

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QUESTION 4

Strydom – general discussion on treaties and treaty formation.

Treaties are binding on states in accordance with the principles of pacta sunt servanda.

RESERVATIONS TO TREATIES

Reservations are covered by Articles 19 to 23 of the VC and by the ICJ’ss advisory opinion
in Reservations to the Convention on the Pervention of the Crime of Genocide 1951 ICJ Rep.
This case established the approach later incorporated in the VC. Although this topic may
appear to be extremely involved, it can be reduced to comprehensible terms if you remember
a few basic principles.

First, reservations arise only in multilateral treaties. In a bilateral treaty, a reservation

is in fact an offer by the objecting state to conclude a different treaty If this offer is accepted,
a new treaty comes into operation.

Secondly, you must remember that treaties are consensual In other words, states
cannot be forced to accept that which they do not wish to accept.

Thirdly, the aim of a multilateral treaty is to get as many states as possible to agree
on as many issues as possible. This is the basis of reservations. If they were not possible,
the treaty would be sabotaged and the object of concluding the treaty would be defeated.
Reservations allow a state which does not agree with all the provisions in a treaty to still become
a party to the treaty and be bound by those provisions which it can live with.

With these principles in mind, let’s start at the beginning with a definition.

A reservation is an offer by the reserving state to the other parties to a multilateral treaty that
the agreement between them will have a certain content.

The next logical question is whether a state can always accept a treaty subject to reservations
The answer lies in Article 19 of the VC This article provides that a state may accept a treaty
subject to reservations, unless:

• the treaty forbids reservations

• the treaty allows only certain reservations (and the one proposed isn"t one of
them)

• the reservation proposed is contrary to the object and purpose of the treaty

The general rule, therefore, is that all treaties may be accepted subject to reservations. If the
treaty is silent on the question of reservations, it may be assumed that reservations are
allowed because treaties are consensual and a proposed reservation is an offer.it stands to
reason, that the other parties to the multilateral treaty may do one of two things: accept the
reservation or reject the reservation.

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However, life being what it is and states being what they are, you will often find that a state
neither accepts nor rejects a reservation - it merely says nothing Failure to object to a
reservation is taken to mean tacit consent to the reservation

A state that objects to a reservation may also do one of two things:

1. it may simply object to the reservation, but not to the operation of

the treaty, or
2. it may object to the reservation and to the treaty coming into
operation between itself and the reserving state

In the first case, the treaty will operate between the two states minus the offending clause. In
the second case, no treaty will operate between the two states

What effect does a reservation have on the multilateral treaty?

Here you must distinguish between states which accept the reservation and states which
reject it

Treaty obligations between states accepting the reservation and the reserving
state

Remember that acceptance may be either express or tacit (through silence or

conduct)

The entire treaty applies between the parties

BUT, the provision in the original treaty to which the reservation has been entered will be
replaced by the provisions in the reservation

NB: If states A, 8 and C accept a reservation entered by state D, the treaty will apply normally
between states A, 8 and C It is only treaty relationships between state D and other states that
are affected by the reservation. Treaty obligations between states rejecting the
reservation and the reserving state

Rejection of a reservation must be express.

If a state rejects a reservation, the reservation doesn’t come into operation between the
reserving and the rejecting state (there is no consensus)

BUT, the clause to which the reservation is entered also cannot apply (again there is no
consensus) and it is removed from the treaty for those parties

If a lacuna (vacuum) arises from the cancellation of the clause, customary

international law will apply to that aspect.

The rest of the treaty (all the provisions minus those to which reservations have been entered)
applies between the parties.

If the state rejects the reservation and the treaty coming into operation, the treaty will not
operate between the two states.

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Remember: treaty obligations between all non-reserving parties remain unaffected by the
reservation!

Because the aim of multilateral treaties is to get as many states as possible to agree on as
much as possible, and because states cannot be forced to consent to something they don"t
agree with, the public international law relationship in the case of a treaty accepted subject
to reservations comprises the highest common denominator existing between the
parties

4. THE MAY/ JUNE 2019 EXAMINATION

As is so often the case, this semester has flown past and, within a month or so, the final
examination in this course, as well as in your other courses, awaits you. We truly hope that you
have enjoyed the course and found it useful, and that you will be successful in the examination.

The examination is a two-hour paper with a total of 100 marks. You will have to answer all the
questions from posed, there are no electives, or sections.

NB: We are not permitted to provide any further information on scoping or demarcation for this
examination.

All the work has to be studied and we can ask questions from any part of the guide and
are not obliged to ask questions from any specific part of the guide.

Generally:

You may accept that the paper contains both problem- and essay-type questions. There will be
no traditional multiple-choice questions in the examination. You may, however, be given questions
asking you to indicate whether a statement is true or false and explain why. Therefore, these
questions cannot be answered on a mark-reading sheet, because you will be required to
substantiate your choice of ‘true’ or ‘false’ and you will have to write your answers in your answer
books.

You must read the questions very carefully in order to establish what the actual theoretical
problem is.

When you are dealing with problem-type questions, always remember to set out the relevant
theoretical aspects clearly and in detail before coming to any conclusion. Consider such questions
almost on the same footing as straightforward or essay-type questions.

The only way to solve a problem is to compare the relevant facts with the theory and then decide
on a solution. We can only award marks for what you have written. Therefore, do not only do all
the reasoning and weighing up of different options and opinions in your mind; put it down in writing!

When you are asked to “discuss” or “compare”, don’t just regurgitate the facts. Discuss the
relevant issues, give criticism and compare.

Remember to always read the paper very carefully before you begin answering the questions to
determine exactly what we are asking.

Plan your answers carefully, as this helps to organise your thoughts and logical argumentation.
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Stay calm!

In the study guide, we have given you practical exercises. We gave you these questions for a
reason: if you are able to answer them without the assistance of the guidelines, textbooks and
other tutorial matter, it shows that you have a good understanding of the work and should be able
to answer the examination questions without any difficulty.

5. CONCLUSION

Please do not leave your preparation for the examination to the last minute. You should have
realised by now that you cannot master this subject in a few days. Start your preparation early
on. Please e-mail us if you feel that you do not understand any section of the work.

We wish you success in the examination!

Your lecturers
Prof. Angelo Dube (dubeba@unisa.ac.za)
Prof. Babatunde Fagbayibo (fagbabo@unisa.ac.za)

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