THE CASE OF GOVERNMENT OF THE REPUBLIC OF ZIMBABWE v LOUIS KAREL FICK: A FIRST STEP TOWARDS DEVELOPING A DOCTRINE ON THE STATUS OF INTERNATIONAL JUDGEMENTS WITHIN THE DOMESTIC LEGAL ORDER

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations

The implications of President Al-Bashir's visit to South Africa for international and domestic law

This article assesses whether the South African North-Gauteng High Court correctly decided in June 2015 that the government violated international and domestic law when failing to arrest President Al Bashir of Sudan, while attending an AU summit in the country, and surrendering him to the ICC. The international law assessment turns on one’s interpretation of the interrelationship between Articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). The national law assessment turns on the status in the domestic legal order of the Rome Statute of the International Criminal Court Act, 2002, as well as a hoststate agreement which the government entered into with the AU Commission for the purposes of the organization of the AU summit. The starting point for this assessment is section 231 of the Constitution of the Republic of South Africa, 1996 which regulates the status of treaties in the domestic legal order. In addition, section 233 determines that domestic law has to be interpreted in accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.http://jicj.oxfordjournals.org2017-06-30hb2016Institute for International and Comparative Law in AfricaPublic La

From Kadi to Nada : judicial techniques favouring human rights over United Nations security council sanctions

This contribution analyses the implications of the Kadi decision of the European Court of Justice of July 2013 and the Nada decision of the European Court of Human Rights of September 2013. Both decisions have given preference to human rights standards over United Nations Security Council (UNSC) sanctions stemming from the Resolution 1267 (1999) sanctions regime. However, they used very different techniques in coming to similar results, with implications for the effective enforcement ofUNSCbinding decisions and the unity of international law.http://chinesejil.oxfordjournals.orghb201

Reinterpreting exceptions to the use of force in the interest of security : forcible intervention by invitation and the demise of the negative equality principle

This essay describes tensions that arise between two types of public goods enshrined in the United Nations Charter—the right to self-determination of people(s) within a territorial state and peace and security—in situations in which recognized governments in conflict-torn countries request military assistance from third states against opposition groups. It illuminates legal challenges in reconciling these public goods in practice, at a time when collective peacekeeping mechanisms appear unable to prevent or terminate civil conflicts and their destabilizing regional impact.http://www.asil.org/resources/american-journal-international-lawam2018Public La

The modern practice of intervention by invitation in Africa and its implications for the prohibition of the use of force

This article examines how two prominent criteria for permissible military intervention by invitation as developed in doctrine are currently implemented by states as well as how this impacts the prohibition of the use of force. Controversies concern, in particular, the determination of the authority entitled to extend the invitation, as recently illustrated by the Russian claim that its military intervention in the Crimea was based on the invitation of (former) President Yanukovych. Does the inviting authority need to enjoy democratic legitimacy and/or be in de facto control of a state’s territory? Furthermore, it remains highly contentious whether an invitation for forcible intervention may be extended during a civil war. By analysing modern state practice in Africa – where most of the contemporary invitations for military assistance occur – and comparing it with recent developments in other regions, the author concludes that effective control rather than democratic legitimacy is (still) the point of departure for determining the legitimate government of a state. Once recognized, incumbent governments enjoy a large discretion when inviting military assistance from foreign governments. They seem to retain the right to military assistance even in situations of civil war and while exercising limited control over the territory.http://ejil.oxfordjournals.org2016-11-30hb2016Public La

The evolving role of ECOWAS and the SADC in peace operations : a challenge to the primacy of the United Nations Security Council in matters of peace and security?

The article examines the evolution of military operations by the Economic Community of Western African States (ECOWAS) and the South African Development Community (SADC) over the last three decades. By examining constitutional (treaty) developments and organizational practice, it questions whether these sub-regional organizations have displaced the primacy of the United Nations Security Council (UNSC) in matters pertaining to international peace and security, as foreseen in articles 24(1) and 103 of the United Nations Charter (the UN Charter). The relevance of this question is underscored by the fact that ECOWAS and SADC have engaged in various peace operations since the 1990s. The article concludes that since all the interventions under discussion were underpinned by the consent of the recognized government, it would be premature to suggest that the practice of African sub-regional organizations amounts to the emergence of a new customary right to engage in ‘first-instance enforcement action’.http://journals.cambridge.orghb201

The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa.   At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law.   Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.  &nbsp

The rise and fall of the Tribunal of the Southern African Development Community : implications for dispute settlement in southern Africa

The article explores the impact of Zimbabwe’s land reform policies since the turn of the century on the Southern African Development Community (SADC), notably its central issue instrument for dispute settlement, namely the SADC Tribunal. In the landmark ruling of Campbell and Others v Zimbabwe the SADC Tribunal found the expropriation of agricultural land without compensation to be discriminatory and in violation of the SADC Treaty. While the Decision was rejected by Zimbabwe it was successfully implemented in South Africa, resulting inter alia in the attachment of Zimbabwean property situated in Cape Town. However, the Campbell Decision met with extensive political resistance throughout the SADC region which ultimately lead to the SADC Tribunal’s suspension in 2012. The article analyses in particular the jurisdiction of the SADC Tribunal to entertain human rights disputes; whether the Tribunal was legally constituted; as well as the manner of enforcement of the Tribunal’s decisions in the domestic legal orders of member States. In addition the article reflects on the consequences of the suspension of the SADC Tribunal for dispute settlement in Southern Africa.http://icsidreview.oxfordjournals.org/hb2013ai201

Invoking obligations erga omnes in the twenty-first century : progressive developments since Barcelona Traction

In April 2014 the Republic of the Marshall Islands instituted proceedings before the International Court of Justice against India, the United Kingdom and Pakistan respectively. The focus of the applications concerned the alleged failure of these countries to fulfill their obligations under customary international law, as enshrined in Article VI of the 1968 Treaty on the Non- Proliferation of Nuclear Weapons (NPT). In accordance with this article: Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=685am2016Public La