UNIVERSITY OF CAPE TOWN

PBL2001H: INTERNATIONAL LAW

FINAL EXAMINATION (NOVEMBER 2008)
___________________________________________________________

TIME: THREE HOURS PLUS FIFTEEN MINUTES TO READ THE PAPER.

NOTE: THE FIFTEEN MINUTE READING PERIOD MAY BE USED ONLY FOR READING THE
PAPER AND MAKING PRELIMINARY NOTES.

EXAMINERS: SALIM A NAKHJAVANI (INTERNAL)

PROF HENNIE A STRYDOM (EXTERNAL)

THIS IS AN OPEN-BOOK EXAMINATION. STUDENTS ARE PERMITTED TO BRING INTO THE

EXAMINATION VENUE ANY NOTES WRITTEN OR COMPILED BY THE STUDENTS THEMSELVES.
THIS INCLUDES HANDWRITTEN OR COMPUTER–PRINTED NOTES, AND MAY INCLUDE EXCERPTS
OF PRESCRIBED COURSE MATERIALS, BUT NOT MATERIAL TAKEN FROM THE UNIVERSITY
LIBRARY SYSTEM.

PLEASE ANSWER BOTH TWO PROBLEM-BASED QUESTIONS FROM PART I, ONE OF TWO ESSAY
QUESTIONS FROM PART II AND TWO OF THREE SHORT-ANSWER QUESTIONS FROM PART III.
THERE ARE THREE (3) PAGES IN THIS EXAM PAPER. PLEASE ENSURE THAT YOU WRITE
NEATLY AND SUBSTANTIATE ALL ANSWERS WITH REFERENCE TO APPROPRIATE SOURCES.
FORMAL CITATION OF SOURCES IS NOT REQUIRED. PLEASE WRITE THE QUESTION NUMBERS
ATTEMPTED ON THE FRONT OF YOUR FIRST EXAM BOOKLET.

PLEASE ENSURE THAT YOUR ANONYMOUS EXAM NUMBER APPEARS ON ALL EXAM BOOKLETS.
NO IDENTIFYING INFORMATION, SUCH AS NAME OR STUDENT NUMBER, SHOULD BE
PROVIDED.

PART I: PROBLEM-BASED QUESTIONS

THE SITUATION IN SOUTH OSSETIA

In recent years, multiple conflicts have arisen

between the Republic of Georgia on one side, and
the separatist region of South Ossetia and the
Russian Federation, on the other.

A civil war fought after the breakup of the former

Soviet Union left parts of South Ossetia in control
● of an unrecognised separatist regime, while other
Tskhinvali parts were held by Georgia. Amidst rising ethnic
tensions, a further conflict broke out in January
1991 when Georgian forces entered Tskhinvali;
more than 2,000 people are believed to have been
killed. That war resulted in South Ossetia, which is
composed of a South Ossetian ethnic majority, and
a Georgian ethnic minority of 70 000 (around one fifth of the total population) breaking
away from Georgia and gaining de facto independence. After a cease-fire in 1992,
Tskhinvali was isolated from the Georgian territory around it, and accounts of atrocities
against South Ossetians — rapes and killings — circulated endlessly. Russian, Georgian and
South Ossetian peacekeepers were stationed in South Ossetia, with a mandate to
demilitarise the area.

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© University of Cape Town
In a 2006 independence referendum, full independence was supported by 99% of South
Ossetian voters, although ethnic Georgians living in the region did not participate. Georgia
accused Russia of the annexation of its internationally recognised territory and installing a
puppet government led by officials who had previously served in the Russian secret service
and army. According to the current Russian President, Dmitry Medvedev, 90% of South
Ossetians possess Russian passports and thereby qualify for protection under the Russian
constitution. Media reports describe the South Ossetian government as “dependent” on
Russia, which supplies two-thirds of its annual budget. The state-controlled Russian gas
company, Gazprom, is building new gas pipelines and infrastructure worth billions of rand
to supply South Ossetian cities with energy.

In mid-April 2008, the Russian Foreign Ministry announced that Prime Minister Vladimir
Putin had given instructions to the federal government whereby Moscow would pursue
economic, diplomatic, and administrative relations with South Ossetia as with other
constituent units (“subjects”) of the Russian Federation.

On 1 August 2008, two roadside bombs hit a Georgian police vehicle on a road connecting
Georgian villages near Tskhinvali. Intense but localised fighting broke out that evening
between Georgian troops and South Ossetian forces, after Georgia claimed that South
Ossetian “separatists” had shelled a Georgian village in violation of a ceasefire agreement.
Fighting continued on 2 August, with each side claiming that it had opened fire in response
to shelling from the other. This was followed by an inconclusive attempt at peace talks.

On 8 August 2008, on the same day as the Olympic Games opened in Beijing, Georgian
military forces moved into areas controlled by the South Ossetian government, and began
shelling Tskhinvali. According to Georgian sources, three Russian aircraft then intruded
into Georgian airspace to attack targets near Tskhinvali. 12 Russian peacekeepers were
killed and nearly 150 were injured.

The Russian Prime Minister, Vladimir Putin, ‘condemned the aggressive actions by Georgian
troops against South Ossetian separatists’. Georgia insisted it had earlier been provoked by
the attacks of 1 and 2 August 2008 (which South Ossetia has repeatedly denied). Russia
responded by moving troops into Georgia and South Ossetia, and launching more airstrikes
on targets in Georgia. Russian forces remain in South Ossetia while international diplomatic
efforts to resolve the conflict continue.

QUESTION 1
Georgia seeks to invoke the international (i.e. State) responsibility of Russia for
violations of the UN Charter and approaches you for legal advice. Identify how, if at all,
Russia may have violated the UN Charter and evaluate the prospects of success of
Georgia’s application.
[30 MARKS]

On 12 August 2008, Georgia files an application with the International Court of Justice
against Russia claiming that the latter had violated its obligations under the Convention on
the Elimination of all Forms of Racial Discrimination (CERD) (1969) during the interventions
in South Ossetia in the period from 1990 to August 2008, alleging “violent discriminatory
acts by Russian armed forces, acting in concert with separatist militia and foreign
mercenaries.”

Art 22 of the CERD which provides that:

‘Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by
negotiation or by the procedures expressly provided for in this Convention,
shall, at the request of any of the parties to the dispute, be referred to the
International Court of Justice for decision, unless the disputants agree to
another mode of settlement.’

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© University of Cape Town
Georgia accepted the compulsory jurisdiction of the ICJ in January 1995, excluding
“disputes arising from the disintegration of the former Soviet Union”. Russia also entered an
Art 36(2) declaration in March 1995, accepting the jurisdiction of the ICJ over “disputes
hereafter arising”.

QUESTION 2
The Russian State Legal Adviser asks you to advise on the range of preliminary
objections that Russia might raise to these proceedings and the likelihood of success of
each of these objections.
[30 MARKS]

PART II: ESSAY QUESTIONS

ANSWER EITHER QUESTION 4 OR QUESTION 5.

QUESTION 4
The General Counsel of the United Nations requests that you draft up to three
amendments to the text of the Charter of the United Nations (or its annexes) which
are, in your view, essential to ensure that the Organisation fulfils its objects and
purposes. You are also requested to provide a commentary justifying each of these
proposed amendments.
[20 MARKS]
QUESTION 5
Critically assess whether a publicised and credible threat of a bombing on the territory
of State A by a terrorist group harboured by State B would allow State A to use force in
self-defence without violating the Charter of the United Nations.
[20 MARKS]

PART III: SHORT ANSWER QUESTIONS

ANSWER ANY TWO OF THE FOLLOWING QUESTIONS PRECISELY AND CONCISELY. EACH
ANSWER SHOULD REQUIRE NO MORE THAN ABOUT TWO PARAGRAPHS OF TEXT.

QUESTION 6
Provide a concrete example of conduct by an armed group that would satisfy the
‘overall control’ test without meeting the threshold of ‘effective control’.
[10 MARKS]
QUESTION 7
How, if at all, has the ordinary meaning of Article 12 of the Charter of the United
Nations developed through subsequent practice?
[10 MARKS]
QUESTION 8
Given the limits of enforcement jurisdiction, how would you justify the exercise of
extraterritorial prescriptive jurisdiction in international law?
[10 MARKS]
QUESTION 9
How relevant are the traditional modes of acquisition of State territory given current
norms of ius cogens?
[10 MARKS]

[TOTAL: 100 MARKS]

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© University of Cape Town