The Work of the Sixth Committee of the United Nations General Assembly in 2016 and 2017

by | Oct 25, 2019 | SAYIL, SAYIL 2017

The Work of the Sixth Committee of the United Nations General Assembly in 2016 and 2017

Authors Arnold N Pronto

ISSN: 2521-2583
Affiliations: Principal Legal Officer, United Nations Office of Legal Affairs, and Principal Assistant Secretary of the Sixth Committee and the International Law Commission
Source: South African Yearbook of International Law, 2017, p. 289 – 319

Abstract

None

Immunities, Crimes against Humanity and Other Topics in the 69th Session of the International Law Commission

by | Oct 25, 2019 | SAYIL, SAYIL 2017

Immunities, Crimes against Humanity and Other Topics in the 69th Session of the International Law Commission

Authors Dire Tladi

ISSN: 2521-2583
Affiliations: Professor of International Law, University of Pretoria. Member of the UN International Law Commission.
Source: South African Yearbook of International Law, 2017, p. 269 – 288

Abstract

None

OECD Multilateral Instrument on Treaty-Related BEPS Measures: Benefits, Challenges and Recommended Options for South Africa and Other Developing Countries

by | Oct 25, 2019 | SAYIL, SAYIL 2017

OECD Multilateral Instrument on Treaty-Related BEPS Measures: Benefits, Challenges and Recommended Options for South Africa and Other Developing Countries

Authors Annet Wanyana Oguttu

ISSN: 2521-2583
Affiliations: Professor, Department of Mercantile Law, College of Law, University of South Africa
Source: South African Yearbook of International Law, 2017, p. 220 – 265

Abstract

In 2015, the OECD issued its 15 Action Measures to curtail Base Erosion and Profit Shifting (BEPS); which is intended to ensure that profits are taxed where the economic activities generating those profits are performed and where value is created. The 15 Action Measures contained BEPS measures pertaining to double taxation agreements (DTAs). Adopting these measures would require the renegotiation of thousands of DTAs that countries have entered into. The sheer number of the DTAs countries have entered into would make updating the current tax treaty network highly burdensome, time consuming and expensive. Under Action 15, the OECD developed a multilateral instrument (MLI)as a mechanism to swiftly implement the tax treaty BEPS Measures and would have the same effects as a simultaneous renegotiation of thousands of DTAs. This article seeks to explain the procedures, administration and interpretation of the MLI. It also considers the procedural, administrative, interpretational and political challenges that could impact on the effectiveness of the MLI from a developing country perspective. The article explains the pros and cons of some of the options to the MLI and it provides general recommendations regarding the choices that developing countries might consider when signing the MLI. Finally, it concludes by providing recommendations on the matters developing countries should be cautious about as they consider whether to sign the MLI.

Reflections on the UN Working Groups on Human Rights and Transnational Corporations

by | Oct 25, 2019 | SAYIL, SAYIL 2017

Reflections on the UN Working Groups on Human Rights and Transnational Corporations

Authors Yolandi Meyer

ISSN: 2521-2583
Affiliations: None
Source: South African Yearbook of International Law, 2017, p. 200 – 219

Abstract

This article explores the work of the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group) as well as the open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights OEIGWG). The main purpose of the Working Group is to promote the implementation of the UN Guiding Principles on Business and Human Rights. It does this by engaging with stakeholders such as governments, civil society, human rights institutions, UN agencies, TNCs and other business enterprises, to ensure that the relevant support and guidance is provided to effectively implement the Guiding Principles. The OEIGWG was established by the Human Rights Council and mandated to produce an international legally binding instrument to regulate the activities of TNCs and other business enterprises. The process of establishing such an instrument is still at an early stage and the article analyses the work of the first few sessions of this working group.

Africa and the Continental Shelf Beyond 200 Nautical Miles: Developments and Challenges

by | Oct 25, 2019 | SAYIL, SAYIL 2017

Africa and the Continental Shelf Beyond 200 Nautical Miles: Developments and Challenges

Authors Siqhamo Yamkela Ntola

ISSN: 2521-2583
Affiliations: Water and Environment Portfolio Manager for the Organisation Undoing Tax Abuse
Source: South African Yearbook of International Law, 2017, p. 169 – 199

Abstract

With South Africa being the latest African coastal state to receive recommendations from the Commission on the Limits of the Continental Shelf on its submission to extend its continental shelf beyond 200 nautical miles from its mainland territory, this article provides a comprehensive view of the claims to an extended shelf by African coastal states. As such, it highlights the additional access to non-living resources that African coastal states may enjoy in the region, and thus, among other things, the economic benefits that may ensue. The article also raises the challenge of delimiting maritime boundaries between states with adjacent or opposite coasts in light of claims to an extended continental shelf and provides a synopsis of the nature of maritime boundary disputes on the continent.

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.