A Sin Committed by the (Suspended) SADC Tribunal : the Erosion of State Sovereignty in the SADC Region

by | Sep 27, 2020 | SAYIL, SAYIL 2018

A Sin Committed by the (Suspended) SADC Tribunal: the Erosion of State Sovereignty in the SADC Region

Authors Moses Retselisitsoe Phooko

ISSN: 2521-2583
Affiliations: University of Johannesburg and High Court of South Africa
Source: South African Yearbook of International Law, 2018, p. 1 – 19

Abstract

State sovereignty was once the sacrosanct and unquestionable characteristic of statehood under international law. International law prohibited any form of intervention by one state in the domestic affairs of another state without the latter’s consent. However, this is no longer the position. It appears that state sovereignty is gradually losing its once inviolable character due to the emergence of human rights, subregional organisations and judicial organs such as the Southern African Development Community (SADC) and the SADC Tribunal. The aim of this article is to critically discuss the impact of the decisions of the SADC Tribunal on state sovereignty within the context of SADC. I argue that by ratifying the Treaty of the Southern African Development Community (SADC Treaty), SADC member states have given away a certain portion of their sovereignty.

The Principle of Non-Refoulement in South Africa and the Exclusion from Refugee Status of Asylum Seekers Who Have Committed Offences Abroad: a Comment on Gavric v Refugee Status Determination Officer, Cape Town and Others

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Principle of Non-Refoulement in South Africa and the Exclusion from Refugee Status of Asylum Seekers Who Have Committed Offences Abroad: a Comment on Gavric v Refugee Status Determination Officer, Cape Town and Others

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2583
Affiliations: University of the Western Cape
Source: South African Yearbook of International Law, 2018, p. 20 – 46

Abstract

South Africa is home to thousands of asylum seekers and refugees, especially from African countries. In order to protect the rights of refugees and asylum seekers, South Africa has ratified international and regional human rights treaties and enacted domestic legislation. The domestic legislation is the Refugees Act (the Act). Section 4(1) of the Act provides for three grounds on which a person may be excluded as a refugee. That a person ‘does not qualify for refugee status for the purposes of this Act if there is reason to believe that he or she – has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment’ is one of the grounds provided for in section 4(1)(b). Section 2 of the Act embodies the principle of non-refoulement. In 2018, the Supreme Court of Appeal and the Constitutional Court handed down judgments clarifying how section 4(1)(b) should be implemented in practice as well as the relationship between sections 2, 3 and 4(1)(b) of the Act. This was comprehensively dealt with by the Constitutional Court in Gavric v Refugee Status Determination Officer, Cape Town and Others. The purpose of this article is to use this judgment as a springboard to highlight the issues that South African courts, especially the Constitutional Court, have to address when determining whether or not a person should be excluded as a refugee under section 4(1)(b) of the Act. The highlighted issues are the criteria to determine whether or not the applicant has had a fair trial; the relevance of the Hollington rule to foreign convictions; and the admissibility of hearsay evidence.

The Historical Development of International Organisations with Separate Legal Personality Since the 19th Century

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Historical Development of International Organisations with Separate Legal Personality Since the 19th Century

Authors Michelle Frances Diers

ISSN: 2521-2583
Affiliations: University of Pretoria
Source: South African Yearbook of International Law, 2018, p. 47 – 70

Abstract

An examination of the development of the separate legal personality of international organisations since the 19th century demonstrates that international organisations do in fact exist as separate legal entities that operate independently from the states that establish them. Notably, when an international organisation is established, it is the founding members of these organisations who determine whether the organisation will possess separate legal personality or not. Such personality may be granted either expressly or by implication. Consequent to the existence of the separate legal personality of international organisations, these entities may possess rights and duties under international law. It is therefore clear that these organisations may be held responsible for the breach of a primary obligation that arises pursuant to the conduct of the organisation in question.

The Unsettled Question of Al-Bashir’s Immunity : a Case Note on the ICC Minority Opinion of Judge Perrin de Brichambaut

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Unsettled Question of Al-Bashir’s Immunity : a Case Note on the ICC Minority Opinion of Judge Perrin de Brichambaut

Authors Isabeau Steytler

ISSN: 2521-2583
Affiliations: University of Melbourne, Australia
Source: South African Yearbook of International Law, 2018, p. 71 – 99

Abstract

In July 2017, Pre-Trial Chamber II of the International Criminal Court (ICC) delivered two opinions on the alleged non-compliance of South Africa in failing to arrest the Sudanese president, Omar Al-Bashir, while he was within its territory in 2015. The judgments concern the vexed question in international criminal law of whether there is a duty on ICC states parties to arrest a head of state for whom the ICC has issued an arrest warrant, despite the immunity from arrest which heads of state enjoy under customary international law. Both the Majority and the Minority Opinion found that there was a duty on South Africa to arrest Al-Bashir but each relied on different reasoning, or ‘legal avenues’ as they are referred to in this article. The subject of this case note is the Minority Opinion as it uniquely considers each of the most prominent legal avenues relied on by previous courts and in the literature. This note provides an analysis of the Minority Opinion’s reasoning in respect of each avenue, namely the ‘analogy avenue’, ‘Genocide Convention avenue’, ‘waiver avenue’ and ‘customary international law avenue’. It concludes that none of these avenues can be firmly relied upon yet, and that the question is therefore yet to be definitively resolved.

The International Law Commission is 70… Staying with the Old and Playing with the New? Reflections on the Work of the Commission During its Commemorative Year

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The International Law Commission is 70… Staying with the Old and Playing with the New? Reflections on the Work of the Commission During its Commemorative Year

Authors Dire Tladi

ISSN: 2521-2583
Affiliations: University of Pretoria, UN International Law Commission and Institut de Droit International
Source: South African Yearbook of International Law, 2018, p. 100 – 118

Abstract

In 2018, the International Law Commission (ILC) celebrated its 70th anniversary. In this commemorative year, the Commission had a number of topics on its agenda. It completed, on second reading, draft conclusions on the identification of customary international law and draft conclusions on subsequent practice in relation to treaty interpretation. These two topics are of particular importance because of their systemic influence on international law. The Commission also completed, on first reading, the draft guidelines on the protection of the atmosphere and the draft guidelines on the provisional application of treaties. Other topics considered by the Commission include peremptory norms of general international law (jus cogens), immunity of state officials from foreign criminal jurisdiction and the protection of the environment in relation to armed conflict. The Commission also considered the topic on succession of states in respect of state responsibility. In other decisions, the Commission placed on its agenda the topic of general principles of law. The Commission also included two topics on its long-term programme of work, namely universal criminal jurisdiction and sea-level rise in international law. The topics on the agenda of the Commission reflect the broad spectrum of issues, ranging from classical international law topics such as customary international law, treaties and jus cogens to more contemporary topics such as sea-level rise and the protection of the atmosphere. This range suggests that the Commission is attempting to integrate the new and the old into its work.

The Requirement of ‘Awareness’ as a Precondition for the Existence of a ‘Legal Dispute’ Under Article 36(2) of the Statute of the ICJ

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Requirement of ‘Awareness’ as a Precondition for the Existence of a ‘Legal Dispute’ Under Article 36(2) of the Statute of the ICJ

Authors George Barrie

ISSN: 2521-2583
Affiliations: University of Johannesburg
Source: South African Yearbook of International Law, 2018, p. 121 – 130

Abstract

In October 2016 the International Court of Justice (ICJ) handed down judgments in the so-called Marshall Islands cases. The Marshall Islands were seeking an order from the ICJ, declaring that the United Kingdom (UK), India and Pakistan were in breach of its obligations under the NPT and customary international law. This article focuses on the claim against the UK. The ICJ on the narrowest of majorities dismissed the claim on the sole ground that a ‘legal dispute’ did not exist between the parties and that, by virtue of article 36(2) of the ICJ Statute, the court had no jurisdiction to proceed with the case. The court held that a ‘legal dispute’ under article 36(2) implied that a respondent state was ‘aware or could not have been unaware’ that its actions were opposed by the applicant state. This introduction of the requirement of ‘awareness’ to indicate that a legal dispute under 36(2) exists now places a higher burden on applicant states and has created a new hurdle to be overcome by applicate states. The case was decided by the casting vote of the president and the minority judgments were highly critical of the majority. The decision raises the question whether the ICJ’s make-up has not become ill-suited to handling multilateral global security disputes.