A Critical Review of the Incorporation of Solas Survey and Certification Standards in South African Law

by | Oct 25, 2019 | SAYIL, SAYIL 2017

A Critical Review of the Incorporation of Solas Survey and Certification Standards in South African Law

Authors Denning Ngomele Metuge

ISSN: 2521-2583
Affiliations: Founding member of the African Ocean Governance Institute
Source: South African Yearbook of International Law, 2017, p. 143 – 168

Abstract

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) requires sovereign states engaged in maritime navigation to adopt domestic regulations giving effect to navigational safety standards. These standards have been developed by the International Maritime Organisation (IMO) in several conventions, which require, amongst other things, that coastal states conduct surveys of all vessels that call at their ports. The survey requirements caused delays in vessel turnaround times, due to a difference in prescribed survey intervals. To address that issue, the 1988 International Conference on the Harmonized System of Survey and Certification adopted protocols that amended major international conventions and introduced the Harmonized System of Survey and Certification (HSSC). The HSSC makes the survey intervals across the relevant safety regulations uniform. However, the IMO does not have competence to impose uniform implementation of its conventions by member states, because implementation falls within the competence of state parties to each independent instrument. With a focus on the 1974 Safety of Life at Sea Convention (SOLAS), as amended, this article critically discusses the incorporation of SOLAS survey and certification standards into the Merchant Shipping Act (MSA) and its subordinate legislation. It identifies discrepancies and gaps in the vessel survey and certification requirements of the MSA in contrast to SOLAS provisions. It then makes a recommendation for the amendment of the MSA, aimed at protecting the competitiveness of South African ports and ensuring that domestic legislation is compliant with SOLAS provisions, thereby fostering the goal of the international maritime community for uniformity in the implementation of international standards regulating shipping, including navigation.

The United Nations System and the Realisation of the Right to Development: Challenges and Opportunities

by | Oct 25, 2019 | SAYIL, SAYIL 2017

The United Nations System and the Realisation of the Right to Development: Challenges and Opportunities

Authors Serges Djoyou Kamga

ISSN: 2521-2583
Affiliations: Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa
Source: South African Yearbook of International Law, 2017, p. 119 – 142

Abstract

Given the controversy on the right to development (RTD), this article examines the extent to which this right can be realised within the current United Nations (UN) and regional human rights mechanisms. To this end, it explores the opportunities provided by an interdependence-based interpretation of global and regional treaties. It also looks at avenues provided by the UN Universal Periodic Review and its Special Procedure. It finds that indeed an interconnectedness-based reading of human rights, though not a substitute for a treaty on the RTD, could be used to foster the RTD while waiting for the adoption of a potential treaty on it.

A New Era for International Criminal Law: Rethinking the Definitions of Crimes against Humanity and Genocide through the Scope of its Evolution as an Outgrowth of War Crimes

by | Oct 25, 2019 | SAYIL, SAYIL 2017

A New Era for International Criminal Law: Rethinking the Definitions of Crimes against Humanity and Genocide through the Scope of its Evolution as an Outgrowth of War Crimes

Authors Mispa Roux

ISSN: 2521-2583
Affiliations: Senior Lecturer, Faculty of Law, University of Johannesburg. Deputy Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law.
Source: South African Yearbook of International Law, 2017, p. 80 – 118

Abstract

Genocide and crimes against humanity were at first considered an outgrowth of war crimes, the latter being the only category of crime accepted as having an international character before the twentieth century. The international community has for centuries been concerned with the outlawing of certain acts during armed conflict, and exhibited the intention to hold the perpetrators of these acts accountable. The establishment of genocide and crimes against humanity as independent international crimes was a gradual process that spread over several centuries, and history shows that war crimes formed the basis for both these crimes. All three international crimes overlap in many ways: certain acts that amount to crimes against humanity constitute war crimes, and certain war crimes are also crimes against humanity. By the same token, genocide can amount to a war crime, and certain war crimes may constitute genocide. Genocide was initially conceptualised as a crime against humanity, and persecution as a crime against humanity specifically belongs to the same genus as genocide. All three crimes therefore inform the others, with war crimes being pivotal to the gradual process during which genocide and crimes against humanity became autonomous international crimes. The following article will firstly furnish an historical background to the development of international criminal law in order to illustrate the fundamental role played by war crimes in the development of the international crimes of genocide and crimes against humanity. Secondly, the article will identify certain overlapping characteristics that the three crimes have. Finally, the historical origins of the crimes, together with the significant overlaps, will be used to further the argument that a new era has dawned in international criminal law which necessitates the rethinking and reinterpretation of existing law to suit the needs of current realities.

The ‘Intensity’ Threshold in Article 8(2)(f) of the Rome Statute: The Conundrum Created by the Term ‘Protracted Armed Conflict’ and the Possibility of a New Category of Non-International Armed Conflict

by | Oct 25, 2019 | SAYIL, SAYIL 2017

The ‘Intensity’ Threshold in Article 8(2)(f) of the Rome Statute: The Conundrum Created by the Term ‘Protracted Armed Conflict’ and the Possibility of a New Category of Non-International Armed Conflict

Authors Martha M Bradley

ISSN: 2521-2583
Affiliations: None
Source: South African Yearbook of International Law, 2017, p. 42 – 79

Abstract

Article 8(2)(d) of the Rome Statute lists the war crimes over which the International Criminal Court may exercise jurisdiction, while article 8(2)(f) of the Rome Statute subsequently determines the type of armed conflict that must exist for jurisdiction to be triggered. Accordingly, article 8(2)(f) reads: ‘It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.’ This second part of article 8(2)(f) determines that the nature of an armed conflict must be ‘protracted’. The phrase ‘protracted armed conflict’ may or may not propose an additional (higher) threshold of violence requirement that must co-exist with the intensity of violence requirement inherent in the first part of the provision. This possibility fuels the debate that the notion of intensity inherent in article 8(2)(f) differs from that in article 8(2)(d) of the Rome Statute. If such an additional threshold of violence requirement under article 8(2)(f) of the Rome Statute exists, it may be argued that this provision creates a new category of non-international armed conflict unique to the Rome Statute. Available literature does not clarify this problem. Employing the rules of treaty interpretation, this article contemplates the meaning of the wording ‘protracted armed conflict’ in order to determine whether it is indeed possible that it introduces such a higher level of intensity.