lOMoARcPSD|26802380
IURI323 Test 2 MEMO - IT IS A TEST WITH A MEMO
International Law / Internationale Reg (North-West University)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Kylan Kunzmann (
[email protected])
lOMoARcPSD|26802380
Requirements for this paper: Resources:
Answer Scripts: ✓ Multi-choice cards (A4):
Attendance Slips (Fill-in Paper): Graph Paper:
Scrap Paper: Calculators (non-programmable):
Multi-choice cards (A5): Laptop (Power not provided):
Assessment Number: Assessment 2 Duration: 1½ hours
Module Code: IURI 323 Maximum Marks: 50
Module Name: International law Date: 2022/09/05
Time: 07:30
Prof. HJ Lubbe BA, B.COM, LLB;
Examiner(s):
Dr. N Kilian Qualification: LLB after BA and
LLB after B.COM
Submission of answer scripts: Ordinary
Instructions
• Please take note that for the purposes of anonymity you need not put your name on your answer sheet.
It will be sufficient to use only your student number. However, you are welcome to use your name as
well as your student number on the answer sheet and you will not be prejudiced should you do so. Your
student number should appear on the answer sheet at all times.
• Bear in mind that correct language usage, full sentences and neat, accurate, but concise formulation
play an important role in the assessment of your answers.
• It is in your own interest for your paper to be fully legible.
• Refer to applicable case law and legislation.
Question 1 [4]
In addition to the traditional criteria for statehood as stipulated in the Montevideo Convention, the respect for
human rights is advanced by some states and authors as an additional criterion for statehood. Critically reflect
on this advancement and provide your motivated opinion.
• The Montevideo Convention cannot be changed retrospectively, and even if it is done (hypothetically)
many states will cease to exist as states and will no longer qualify as subjects of public international
law and as a result they will not be bound by its rules and principles any longer. (1)
• If the Montevideo Convention is changed and new entities in future have to comply with the additional
criterion, it will be unfair to expect a higher standard from new states than from existing states. (1)
• There is no state practice to support this proposition. (1)
• Another view is that it is incorporated in the <effective government= criterion. Support for this:
"democratic entitlement" in international law. (1)
_______________________________________________________________________________________
IURI 323 Test 2 MEMO 1/7
lOMoARcPSD|26802380
Question 2 [6]
Explain the collective recognition of states with specific reference to the Declaration of Independence to
Colonial Countries and Peoples Resolution 1514 (XV). In your answer, briefly touch on the role recognition
plays in the formation of states, and the effect thereof on the traditional criteria for statehood.
• This declaration outlawed colonialism, ousted colonial powers and gave the approval of the UN for the
creation of 17 new independent states. (1)
• This was done with little regard for compliance with the traditional requirements for statehood under the
Montevideo Convention more specifically <effective government/independence=. (1)
• When it came to the right to self-determination, the above-mentioned criteria (effective
government/independence) were relaxed because the colonised entities were under the rule of its
colonisers and therefore had no effective government of their own neither were they independent. (1) This
was a result of them not enjoying the right to self-determination by virtue of which they freely determine
their political status and freely pursue their economic, social and cultural development. (1)
• The new states were formed because the UN recognised them as states. (1) This form of recognition is
called collective recognition as it concerns the recognition of multiple states through one mouth, namely
that of the UN. If the UN recognises an entity as a state its statehood is guaranteed. (1)
• Use discretion: The conclusion seems unavoidable that the self-determination of peoples, which
has become a primary value in the contemporary international order, has led to a relaxation of some
requirements of statehood for the purposes of admission to the UN. While the requirements of
permanent population and defined territory remain intact, it seems that others, such as effective
government/independence are no longer strictly insisted on where they run counter to
developments in international law regarding the right to self-determination. One a state is admitted
to the UN, its acceptance as a state for all purposes is assured.
_______________________________________________________________________________________
IURI 323 Test 2 MEMO 2/7
lOMoARcPSD|26802380
Question 3 [15]
Does the right to self-determination give a political disaffected ethnic minority within a fully independent state
the right to determine its destiny by seceding from that state and creating a new state? Comprehensively
motivate your answer in an essay.
The following criteria will be used to assess your essay:
a) Logic structure and systematic flow 2
b) Language and formulation 2
c) Theory (Authority) 5
d) Application, integration & analysis, answer & motivation 6
1 The rules
The rules can be found in the following instruments: One example will suffice:
• UN Charter
• Res 1514 (XV) of 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,
• Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations of 1970
• Namibia Opinion
• Western Sahara Case
• International Covenant on Civil and Political Rights (ICCPR)
• East Timor Case
• Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory...
A definition of self-determination MUST be provided: Article 1(1) International Covenant on Civil and
Political Rights (ICCPR) <All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.=
In the colonial context: Res 1514 (XV) of 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples <All peoples have the right of self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.=
Students must illustrate that this right is not absolute and that the exercise of the right to self-
determination is qualified by the following:
Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is
incompatible with the Purposes and Principles of the Charter of the United Nations.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations of 1970 (This instrument aims to limit the
right to self-determination to decolonization). Specific reference to decolonization, alien subjugation,
domination and exploitation. Nothing in the foregoing paragraphs [asserting the right to self-determination]
shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of peoples... and thus possessed of a
IURI 323 Test 2 MEMO 3/7
lOMoARcPSD|26802380
government representing the whole people belonging to the territory without distinction as to race, creed or
colour.
2 The meaning of the rules
• Self-determination is a product of decolonisation but goes wider and is applicable outside the colonial
context.
• Principle of territorial integrity ensures respect for existing boundaries.
• Uti possidetis: Respect for colonial boundaries although they were drawn arbitrarily by colonial powers.
• Right to self-determination must therefore be exercised within existing boundaries.
3 Distinction between external and internal self-determination
• External: Right to secede from your own state (cession).
• Internal: Right to choose your own political status and to pursue your own economic, social and cultural
development within the state and to choose the government and to choose to participate therein.
• Internal self-determination is not in conflict with territorial integrity and is therefore the preferred <species=
of self-determination.
4 <People= or <Peoples= (students must explain the term to indicate WHO has the right)
• Mostly interpreted as ALL the people within the state's territory and NOT the different ethnic groups or
people that make up the population – Rosalyn Higgins
• Reference re Secession of Quebec <people may include only a portion of the population of an existing
state= – Preferred approach!
5 State practice and judicial decisions
• Cession causes no problems if the state gives permission – Recent example: South Sudan cedes from
Sudan.
• Problem is when a state refuses or resists, sometimes violently. Then when self-determination and
territorial integrity comes into conflict.
• Recognition of this states play a big role in practice…
According to certain viewpoints cession is absolutely prohibited. Examples are where it is in violation
of peremptory norms.
There are, however, cases where cession was successful and approved:
(1) Separate entity (geographical, historical or constitutional) – Pakistan / Bangladesh (no or minimum violation
of the principle of uti possidetis.)
(2) Disregard for the right to internal self-determination coupled with the violation of human rights and the
exhaustion of attempts to fulfil internal self-determination – State loses the right to respect for territorial integrity
and people get right to remedial secession.
IURI 323 Test 2 MEMO 4/7
lOMoARcPSD|26802380
Reference re Secession of Quebec
• Secession of Quebec from Canada and court supports remedial secession.
• Extreme cases of oppression of peoples.
• Refers to Res 2625 (XXV) that determines that a state only enjoys protection on condition that:
<conducting themselves in compliance with the principle of equal rights and self-determination of
peoples... and thus possessed of a government representing the whole people belonging to the territory
without distinction as to race, creed or colour.=
Must exhaust attempts, if not no claim can be made on secession.
• Katangese People's Congress v Zaire
• Court was not convinced that all attempts were exhausted and therefore did not recognise secession.
Kosovo Advisory Opinion
• In the Kosovo case, two judges of the International Court of Justice found that a state loses its right to
territorial integrity when such a state fails to afford the right to internal self-determination to a specific
group of people, the group’s human rights are violated, and the group has exhausted all possible remedies
to acquire internal self-determination. Kosovo declared its independence from Serbia in 2008 and is
recognised by a large number of states as an independent state. The ICJ found that Kosovo did not violate
any international norm by its conduct. Membership to the UN for Kosovo is, however, not possible
because its application is time and again vetoed by Russia and China.
Two further cases that illustrate the difficulty of secession are the attempts by the former autonomous areas
of South Ossetia and Abkhazia in 2008 to secede from the Republic of Georgia. Although these states are
recognised by a few states as independent states, the majority of states have to date withheld recognition.
6 Conclusion
Although it seems as if it is more readily accepted that secession is the only solution to prevent internal conflict
in most cases, it remains an issue that must be approached with caution. Currently there are serious
differences in opinion about the admissibility under international law of secession. Some want to limit the
process of secession to decolonization and others argue that there are certain circumstances outside the
scope of decolonization that justify secession. The least mentioned viewpoint is also strongly supported by
state practice and it can be accepted that international law will steadily develop in this direction.
_______________________________________________________________________________________
IURI 323 Test 2 MEMO 5/7
lOMoARcPSD|26802380
Question 4 [5]
The 24 January 2022 military coup that overthrew Burkina Faso’s president Roch Marc Christian Kaboré
comes amid a deepening security crisis in the country. Both civilians and defence and security forces have
long voiced their discontent, including with Kaboré’s political stewardship. This is also West Africa’s fourth
coup in less than two years. Kaboré’s deposition follows those of former Malian presidents Ibrahim Boubacar
Keïta and Bah N’Daw in August 2020 and May 2021 respectively, and that of former Guinean president Alpha
Condé in September 2021. Much more than a trend, increasing coups reflect a major crisis in West Africa’s
political systems, which aren’t meeting the people’s expectations and are plagued by corruption.
In cases where a change in government is unconstitutional, other states will have to decide whether the new
government really represents the state or whether it is the type of government with which they wish to enter
into relations. Briefly explain this process under South African municipal law.
• Recognition is a matter that falls within the powers of the executive. (1)
• The court can request the relevant department (Department of International Relations and Cooperation)
for an executive certificate setting out its views. (1)
• A court is, however, not excluded from pronouncing on the recognition but should do so sparingly
– in cases where the recognition is ambiguous or non-committal. (1)
• The court will look at the following factors: (any 2 of the following)
• Is it the constitutional government of the state?
• Degree, nature, and stability of the control it exercises over the territory of the state.
• Does the recognising government have any dealings with the recognised government?
• The extent of international recognition.
IURI 323 Test 2 MEMO 6/7
lOMoARcPSD|26802380
Question 5 [20]
Answer the following questions related to the United Nations Security Council (UNSC) in its quest to maintain
international peace and security:
5.1 Briefly explain the composition of the UNSC. (2)
• 5 permanent members. (1)
• 10 rotating members every two years. (1)
5.2 When does the UNSC act under Chapter 6 of the UN Charter? (2)
• The UNSC acts under Chapter 6 if a situation if continued, is likely to endanger the maintenance of
international peace and security. (1) It has therefore not YET reached the threshold in article 39. (1)
5.3 When does the UNSC act under Chapter 7 of the UN Chapter? (3)
• The UNSC acts under Chapter 7 if a situation reached the threshold article 39 (1) sets in that the
situation in question is a <threat to the peace, breach of the peace, or act of aggression...= (1)
5.4 What actions can the UNSC take under Chapter 7 of the UN Charter? (3)
• Conflicting parties are requested to agree on a cease-fire: Provisional measures: Article 40 (1)
• Implementation of sanctions or severance of diplomatic relations: non-forcible measures: Article 41 (1)
• In extreme cases of force can be used: Forcible measures: Article 42 (1)
5.5 Explain VETO power with reference to article 27(3) of the UN Charter. (5)
• Decisions of the UNSC on all other matters (not procedural matter) (1) shall be made by an affirmative
vote of nine members (1) including the concurring votes of the permanent members; (1)
provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute
shall abstain from voting. (1) If a party abstains, the concurring votes of the four remaining
permanent members can push the decision through. (1)
5.6 Express yourself critically on the calls for the reform of the UNSC. (5)
• Use discretion: The current composition and functioning of the UNSC is presently severely criticised.
The body is inherently undemocratic regarding its composition and functioning. It is ironic that the
General Meeting, on which all the member states of the United Nations enjoy representation, is the
very body that can only make non-binding decisions, while the Security Council on which 15 states
enjoy representation, can make decisions that are binding on all member states of the United Nations
and only 5 states eventually determine whether a decision will be made and what the contents of that
decision must be. This is why states such as India, Germany, Nigeria, Egypt and South Africa are
increasingly demanding that they be made permanent members should also be admitted to the
Security Council and that they should receive the right of veto or, alternatively, that the right of veto
should be altogether abolished. The fact that the international circumstances of the present time differ
completely from those when the United Nations was established in 1945, necessitate a rethinking of
the composition and functioning of the United Nations, but especially of the Security Council.
TOTAL: 50
IURI 323 Test 2 MEMO 7/7
