COURSE: LCP 4801

ASSIGNMENT 2:  SEMESTER 1

DUE DATE: 11 April 2023
Albertine Mkhosi
Student number: 49685627

ACADEMIC HONESTY DECLARATION

Declaration: .............................................
 I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
 I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to this style.
 I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
 I did not make use of another student’s work and submit it as my own.

NAME: .............Albertine Mkhosi........................................................

SIGNATURE: ....................................................................................
STUDENT NUMBER: ...49685627...................................................
MODULE CODE: ..LCP 4801...............................................................
DATE: .......11 April 2023................................................................
Question 1
The forms of jurisdiction that a court could rely on under international law 
(10)

1. Territoriality
All crimes committed (or alleged to have been committed) within the territorial,
geographical jurisdiction of a state may come before the municipal courts and the
accused if convicted may be sentenced including foreign citizens. They are two
approaches that Strydom has identified; the subjective and objective approach also
known as the initiatory and terminatory theory. The former, the state exercises
jurisdiction over a crime that commences, regardless whether it is completed in the
said territory or not. The later relates to crimes completed on its territory regardless
of where the offence initiated. (Strydom, 2016, p. 241).

2. Nationality
The state jurisdiction over crimes committed abroad by nationals, this includes
natural born, naturalised or ordinary citizen. 1 This type of jurisdiction can be based
on the civil law model or the common legal tradition limiting its jurisdiction to serious
crimes such as treason, murder etc.. South Africa follows the later, this was evident
in the R v Holm and R v Neumann case. (Strydom, 2016, p. 244).

3. Passive personality
The link to the state jurisdiction is the nationality of the victim. This type of jurisdiction
relates to extraterritorial crimes committed or intended to be committed against their
nationals including ordinary residents as defined in point 2 above. 2 (Strydom, 2016,
p. 245).

4. Protective principle

1
Strydom, 2016: 244: “It is clear that a State has jurisdiction over all persons who owe it allegiance, that is, persons who
receive protection from the State, protecto trahit subjectionem et subjectio protectionem, and such persons belong to one of
three classes, namely, (a) natural born subjects (b) naturalised citizens and (c) domiciled persons, the respective nexus
subjectionis being (a) birth (b) Statute and (c) residence”.
2
Strydom, 2016: 245
The Defamatory case of US national arrested and prosecuted in Mexico and the Arrest Warrant case.
South Africa as adopted legislation which provides for passive personality jurisdiction over offences such as humanity,
genocide and war crimes, terrorism and related offences, corruption, certain sexual offences and human trafficking

2
The state is concerned with crimes that might affect or prejudice it. These crimes
relates to and not limited to security, espionage, currency of credit, passports. This
principle was endorsed in South Africa in the case R v Neumann. 3 (Strydom, 2016,
p. 245).

5. The effects principle

This is an extraterritorial jurisdiction which prescribes law in terms of conduct outside
its territory that has or is intended to have substantial effect within its territory. Unlike
the objective territorial jurisdiction in terms of completion of a crime; this relates to
where the effect of the crime is felt; including economic interests. In South Africa, the
Protection of Constitutional Democracy Against Terrorist and Related Activities Act
applies4. (Strydom, 2016, p. 246)

6. Universality Jurisdiction
This is a form of extraterritorial jurisdiction and it’s defined as a criminal jurisdiction
based solely on the nature of the crime, without regard to where the crime was
committed, the nationality of the alleged or convicted perpetrator, the nationality of
the victim, or any other connection to the state exercising such jurisdiction. (Strydom,
2016, p. 246). In the Arrest Warrant case judge Guilaume stated that international
law did not recognise universal jurisdiction and yet Judge ad hoc Van Wyngaert held
the opposite.5 Demonstrating the confusing in the interpretation of section 4.
The presence of the suspect is not required for investigation; however, at start of the
prosecution the suspect is required. Constitutional Court in the interpretation of
section 4 of the ICC Act.6
Question 2

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R v Neumann “The Union of South Africa being a Sovereign State ... [is] therefore automatically entitled to punish crime
directed against its independence and safety”. States have taken a broad approach to this protective principle; such as the
United Kingdom in the case Joyce v Director of public persecutions, who fraudulently misrepresented his birthplace to be
Ireland to obtain a British passport and the German in relations to threat to its nation racial purity.
4
The Protection of Constitutional Democracy Against Terrorist and Related Activities Act , criminalised any act committed in or
outside the Republic which causes any major economic loss or extensive destabilisation of an economic system or substantial
for the regulation of cybercrime.
5
Judge Ad hoc Wyngaert held “there was no proposition that universal jurisdiction for war crimes and crimes against humanity
can only be exercised if the defendant was present on the territory of the prosecting state”
6
Strydom, 2016: section 4 of the ICC Act. “…the person , after the commission of the crime, is present in the territory of the
Republic…”
“In the SALC case, the Constitutional Court set out three general principles that should be observed ‘in order for universal
jurisdiction to comply with the dictates of international law’.
According to international law scholars:
1. A substantial and bona fide connection between the subject matter and the source of the jurisdiction;
2. The principle of non-intervention in the domestic or territorial jurisdiction of other states; and
3. Elements of accommodation, mutuality and proportionality’.

3
The requirements for statehood under international law                                 (8)
In terms of the declarative theory, they are four (4) criteria as contained in the 1933
Montevidoe Convention on the Rights and Duties of States, which defines a state.
1. A defined territory
A defined territory includes land, territorial sea and air space above the state. They
come in different size and shape and not in continuous single landmass. Disputed
borders is not disqualify aspect of a state as Israel and Palestine. (Strydom, 2016, p.
68).
2. A permanent population;
A state needs to have permanent population. There is no set population size. What
is important the population must through identity, culture and customs from
foreigners and they live in an organised, recognisable social and political structure.
(University of South Africa, 2018, p. 12). Nomadic population doesn’t exclude one
from statehood.
3. Effective government;
This is the most important attribute of statehood. The state must have an effective
governments, own executive organs through which its conducts its foreign relations;
an independent legal system and its own courts. Financial dependence alone will not
preclude statehood. The form of government is not a pre-requisite.
4. Capacity to enter into relations with other states”
The ability for state to enter into treaties with other states, exchanging diplomats with
other states and by approaching international courts to settle disputes. The Palmas
arbitration confirmed the state sovereignty as the strongest certification. 7 (University
of South Africa, 2018, p. 70). Valuable additional criteria are independence,
recognition, legal principles of self-determination and prohibition of the use of force.
Question 3
What are the basic principles that should govern the reservation to treaties
under international law (7)
In the law of treaties, consent can be effected by signature, exchange of
instruments, ratification, acceptance, approval or accession, or any other means
agreed upon by the parties. (University of South Africa, 2018, p. 99). Reservations is

7
In the island of Palmas arbitration the following was held: “Sovereignty in the relations between States signifies
independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other
State, the functions of a State.”

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defined in terms of Vienna Convention of Law of Treaties. 8 It’s mainly associated
with multilateral treaties. (University of South Africa, 2018, p. 101)
A reservation may be formulate unless, a) it’s prohibited by the treaty; b) only
specific reservations are provided for, which do not include the reservation in
question, may be made; or In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of the treaty.

1. A reservation expressly authorized by a treaty does not require any subsequent

acceptance by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object
and purpose of a treaty that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each one to be bound by
the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and
unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty
otherwise provides:
(a) acceptance by another contracting State of a reservation constitutes the
reserving State a party to the treaty in relation to that other State if or
when the treaty is in force for those States;
(b) an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving States unless a contrary intention is definitely expressed by the
objecting State;
(c) an act expressing a State’s consent to be bound by the treaty and
containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise
provides, a reservation is considered to have been accepted by a State if it shall
have raised no objection to the reservation by the end of a period of twelve
months after it was notified of the reservation or by the date on which it
8
section 2(1)(d) of the Vienna Convention of Law of Treaties, VLCT, defines reservations as:
“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 to modify the legal effect of certain provisions of the treaty in their
application to that State”.

5
 expressed its consent to be bound by the treaty, whichever is later. (United
Nations, 1969)

Bibliography
Strydom, H. e. (2016). International Law. Cape Town: Oxford University Press Southern
Africa (Pty) Limited.
United Nations. (1969, May 23). Legal.un.org. Retrieved from Legal.un.org:
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
University of South Africa. (2018). International Law study guide. Pretoria : University of
South Africa.