NAME: ZANELE NOMVULA

SURNAME: NHLAPO
STUDENT NUMBER: 66719844
LCP4801- INTERNATIONAL LAW
OCT/NOV EXAMINATION 2023
Question 1
The Third World Approaches to International Law (TWAIL) scholarship and political
action emerged in the 1990s as a critical response to the dominant Eurocentric
perspectives in international law. TWAIL seeks to challenge the historical injustices
perpetuated by international law and aims to address the specific concerns and
interests of the Global South.1
The fundamental objectives of TWAIL can be summarized as follows:
Decolonization- Scholars and activists from TWAIL want to challenge the Eurocentric
biases and power inequalities that are inherent in the field in order to decolonize
international law. They contend that historically, international law has benefited the
global north at the expense of the global south.
Justice and equality- TWAIL addresses the past and present injustices that Third
World nations endure in an effort to advance justice and equality under international
law. It promotes a more just allocation of authority and funds within the framework of
international law.
Empowering the Global South- By providing voice to oppressed populations and
North's opposing the Global predominance in international law, TWAIL seeks to
empower the Global South.
Intersectionality- TWAIL acknowledges the interconnectedness of multiple
oppressions, including but not limited to race, gender, class, and colonialism. It
highlights how important it is to examine and deal with these interlocking kinds of
oppression in order to create an international legal system that is more equitable and
inclusive.
The characteristics of TWAIL scholarship and political action include:2
Critique of mainstream international law- TWAIL researchers expose the prejudices
and shortcomings of the prevalent international legal narratives and frameworks by
critically analysing them. They call into question the Eurocentric viewpoints and draw
attention to the historical injustices that international law has helped to maintain.
Emphasis on context and specificity- TWAIL acknowledges the significance of
particular and context in comprehending international law. It highlights the need to
interpret and apply legal standards and principles in a way that takes into
consideration the unique historical, Social, and economic circumstances of Third
World nations.
Engagement with local struggles- Scholars and activists from TWAIL actively
participate in regional movements in the Global South for justice and equality. They

1
What is TWAIL? / M. Mutua. American Society of International Law Proceedings. - Vol. 94
(2000).
2
See Mutua, Limitations on Religious Rights, supra note 34; see also Makau Mutua, Returning
to My Roots: African "Religions" and the State, in proselytization and communal self-
determination in africa 169 (Abdullahi A. An-Na'im ed., 1999.
assist underprivileged groups in their endeavours to overthrow repressive structures
and work to link-global legal issues with their daily experiences.
Dialogue and collaboration- TWAIL promotes communication and cooperation
among academics, activists, and communities throughout the Global South. The
objective is to establish forums for the sharing of concepts and first-hand knowledge,
promoting a shared comprehension and taking steps towards revolutionary
transformation.
In conclusion, TWAIL scholarship and political action aim to challenge the dominant
narratives and structures of international law by directing the concerns and interests
of the Global South. It seeks to decolonize international law, promote justice and
equality, empower the Global South, and address the intersecting forms of
oppression faced by marginalized communities.3

Question 2
According to case law and authoritative sources of international law, the question of
whether a head of state or representative of a foreign government has immunity from
international crimes is complex. While there is a general recognition of immunity for
such individuals, it is not absolute and can be limited or waived under certain
circumstances.
The personal immunity of incumbent heads of state had been widely recognized
prior to the ICJ ruling. In the Pinochet case, the UK House of Lords reaffirmed the
absolute inviolability and immunity from criminal jurisdiction of a foreign serving head
of state and recognized that an extensive personal immunity for such persons had
been reflected in earlier decisions of a significant number of national courts in both
civil and criminal proceedings.4
The position of heads of government and foreign ministers was less well developed
and this aspect of the ICJ ruling has attracted some criticism. Traditionally the two
offices have been linked in international law with that of head of state.5 There
appears to have been a general acceptance that a head of government enjoys
immunities similar to a head of state18 and the little state practice that exists
supports that conclusion.
Specifically speaking, South Africa has had a complex stance on the subject of
immunity for heads of state and diplomats from other countries. The Rome Statute of
the International Criminal Court (ICC) established the ICC's authority over
international crimes, and South Africa is a signatory to this agreement. Heads of

3
See Rights in Global Perspective: Legal Perspectives 417 (J. D. van der Vyver & J. Witte eds.
1996). 36 See Ian Martin, The New World Order: Opportunity or Threat for Human Rights,
Harvard Law School Human Rights Program (1993), for a good discussion.
4
See Sir Arthur Watts, ‘The Legal Position in International Law of Heads of State, Heads of
Governments and Foreign Ministers’, Recueil des Cours, Vol. 247 (1994-III).
5
See Section 20 UK State Immunity Act 1978.
state and representatives of foreign governments are not immune from prosecution
for international crimes under the purview of the ICC under the Rome Statute.
Later, the South African courts declared that the government's choice to permit al-
Bashir to depart the nation was illegal since it went against what South Africa was
required to do by the Rome Statute. The judges ruled that since the ICC had
jurisdiction over any claim of immunity, South Africa was required to arrest and turn
over al-Bashir to the organization. The idea that immunity does not extend to
transnational crimes under the purview of the ICC was upheld by this decision.
The idea of immunity has been acknowledged by the International Court of Justice
(Ic) in its rulings concerning heads of state or representatives of foreign
governments. The International Court of justice (|C) ruled in the Democratic Republic
of Congo v Belgium Arrest Warrant case6 that some international crimes, including
crimes against humanity, war crimes, and genocide, are too serious to be exempt
from punishment. Regardless of the accused's official capacity, the IC] was clear that
immunity does not extend to these crimes.
In conclusion, while heads of state and representatives of foreign governments
generally enjoy immunity for official acts committed during their tenure, this immunity
does not extend to international crimes of such gravity as war crimes, crimes against
humanity, and genocide. South Africa, as a party to the Rome Statute, recognizes
the ICC's jurisdiction over these crimes and does not provide immunity for heads of
state or representatives of foreign governments in such cases.7 The South African
courts have upheld this position, as demonstrated in the case involving Sudanese
President Omar al-Bashir.

Question 3
In South Africa, the obligation to offer diplomatic protection to its nationals abroad
who have been injured by the actions of a foreign state is a complex and evolving
issue. To critically discuss this matter, we can analyse relevant South African case
law and examine the country's legal framework and international obligation.
The ruling in the National Commissioner of the South African Police Service v.
Southern African Human Rights Litigation Center (SAHRLC) Case by the
Constitutional Court is one significant case to take into account. The court's job in
this case was to decide whether the South African government was required to look
into and prosecute crimes against humanity that were perpetrated in Zimbabwe. The
court decided that even if these crimes were committed abroad, South Africa
nonetheless had a duty to look into and prosecute them.8

6
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment,
ICJ Reports 2002, p. 3; 128 ILR 1.
7
Roman Kolodkin, Second Report on Immunity of State Officials from Foreign Criminal
Jurisdiction, UN Doc A/CN.4/631, 10 June 2010, para 94(i).
8
The ILC states that other peaceful means “embraces all forms of lawful dispute settlement,
from negotiation, mediation and conciliation to arbitral and judicial dispute settlement ” Draft
One important case to consider is the Constitutional Court's decision in the case of
National Commissioner of the South African Police Service v Southern African
Human Rights Litigation Centre (SAHRLC). In this case, the court was tasked with
determining whether the South African government had an obligation to investigate
and prosecute crimes against humanity committed in Zimbabwe. The court held that
South Africa had an obligation to investigate and prosecute such crimes, regardless
of the fact that they were committed in another country.9
The court's acceptance of the idea of universal jurisdiction-which permits a state to
prosecute certain foreign offenses regardless of the location of the acts-is
demonstrated by this ruling. It implies that, even if the crimes took place outside of its
boundaries, South Africa has an obligation to defend its citizens against grave
human rights abuses carried out by other countries.
However, it is important to note that the obligation to offer diplomatic protection is not
absolute and can be subject to limitations. The South African government may
consider various factors, including political, diplomatic, and economic considerations,
when deciding whether to intervene on behalf of its nationals.
In the case of Kaunda v President or The Republic or South Africa, a bunch of South
Africans had been arrested in Zimbabwe and Equatorial Guinea with charges
relating to mercenary activities and plotting a coup against the President of the
Equatorial Guinea.10 The applicants had claimed that they would not receive a fair
trial in Equatorial Guinea and they would be sentenced to death. They claimed that
the South African government had an obligation to offer them diplomatic immunity.
It is noteworthy, nevertheless, since the South African government later declared its
plan to leave the ICC, raising concerns about the nation's future strategy for
diplomatic protection and its legal obligations under international law.
Thus, it is necessary to interpret clauses 3(2)\a) and 7(2) as giving the Government a
constitutional obligation to guarantee that all South African people living overseas
benefit from public protection. It is necessary to reject the claim that the Government
is not required by the Constitution to act in this manner. The government's officially
announced policy and recognized constitutional obligation are incompatible with
such a proposal. South Africa is entitled to defend its citizens wherever their rights
are violated.
In conclusion, while South African case law recognizes the obligation to offer
diplomatic protection to its nationals abroad who have been injured by the actions of
a foreign state, the practical implementation of this obligation may be subject to
various considerations. The recognition of universal jurisdiction in certain cases and
the commitment to international criminal justice demonstrate South Africa's
willingness to protect its nationals from serious human rights violations. However, the

Articles 2006 27 While the First Report of the Special Rapporteur included such tougher
measures as reprisals, retorsions and economic measures, their non-inclusion in the final
commentary to the Draft Articles is probably a reflection of the lack of support, or at least
uncertainty, about such far-reaching measures in actions of diplomatic protection.
9
The facts are reproduced in greater detail in paras 2-17 of the judgement.
10
Finney P, International law Study Guide (University of South Africa, 2017) 60.
government's recent decision to withdraw from the ICC raises concerns about its
future approach to diplomatic protection and its adherence to international
obligations.

Question 4
4.1 The prohibition on the use of force: The first important point is that states must
settle their disputes peacefully.
Article 2(4): “All members shall 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 prohibition of aggression and the use of force has been widely accepted as
being a jus cogens norm. The article 2(4) of the UN Charter prohibits the threat or
use of force against the territorial integrity or political independence of any state.
Furthermore, article 2(7) prohibits intervention in a state’s essentially domestic
matters.11
4.2 The peaceful settlement of disputes: This principle highlights how crucial it is to
settle disputes between governments amicably rather than by using force. It is
predicated on the idea of nations' sovereign equality as well as the duty to respect
other states' political independence and geographical integrity. Several methods,
such as negotiation, mediation, arbitration, and adjudication, can be used to settle
disagreements amicably. Peaceful settlement of disputes is greatly aided and
encouraged by international organizations like the United Nations, regional
organizations, and specialized tribunals. Article 2(3) of the United Nations Charter,
which mandates that states settle international disputes amicably and abstain from
the threat or use of force, further codifies the idea of peaceful dispute resolution. 12

11
Finney P, International law Study Guide (University of South Africa, 2017) p 30.
12
Finney P, International law Study Guide (University of South Africa, 2017) p 48.