Representation, Inequality, Marginalization, and International Law-Making: The Case of the International Court of Justice and the International Law Commission

This Article assesses the extent of inequality and marginalization in the making of international law. It examines whether there is equal contribution, and equal opportunity for contribution, in the making of international law by and for all States. In particular, the Article ponders whether the Global South is marginalized in law-making processes, or, put another way, whether the Global North is privileged. The Article evaluates whether there is equitable representation in international law-making bodies, and it focuses on the two most prominent ones, namely the International Court of Justice and the International Law Commission. The assessment addresses both the formal requirements of representation and the actual practices within both bodies

Progressively developing and codifying international law : the work of the International Law Commission in its 68th Session

The 68th session of the International Law Commission (the Commission), held in 2016, was a significant one for the Commission. First, on a more substantive level, the Commission adopted a final text on a major topic, namely the protection of persons in the event of disasters on the second reading and also completed a first reading of yet two other topics, namely the identification of customary international law as well as subsequent agreements and practice in relation to treaty interpretation.1 Secondly, at an institutional level, 2016 marked the final year of the quinquennium — the term of the 34-member Commission expired at the end of 2016.2 On 3 November 2016, the General Assembly elected new members for the term beginning 1 January 2017.https://journals.co.za/content/journal/jlc_sayilam2019Public La

The proposed implementing agreement : options for coherence and consistency in the establishment of protected areas beyond national jurisdiction

The purpose of this article is to provide initial thoughts on potential conflicts between the mandates of Regional Fisheries Management Organizations (RFMOs) and any mechanisms for establishing Marine Protected Areas in the high seas and how these conflicts might be avoided. The article addresses first, whether the fears that may exist concerning the conflicts are, as a matter of international law, real and to the extent that they are real, how an Implementing Agreement (IA) might be shaped to avoid them. As the article is intended to provide only initial thoughts, the range of RFMOs and possible conflicts are only illustrative and are not intended to be comprehensive. With the potential conflicts in mind, the article then provides, in the third section, possible approaches that the drafters of the IA could adopt to avoid and/or mitigate against them. Finally, the article offers some concluding remarks.http://booksandjournals.brillonline.com/content/journals/157180852017-12-31hb2016Public La

Extraterritorial use of force against non-state actors : PS to Hague Academy lectures

In July 2021, the author presented a Special Course for the Hague Academy of International Law Summer Courses on the Extraterritorial Use of Force against Non-State Actors. The course focused on two bases for the extraterritorial use of force against non-state actors, namely self-defence and intervention by invitation. The lectures came to a conclusion that may, at first glance, appear contradictory. With respect to the use of force in self-defence, the lectures adopted a restrictive (non-permissive) approach in which the use of force is not permitted save in narrowly construed exceptions. With respect to intervention by invitation, the lectures adopted a more permissive approach in which the use of force is generally permitted and prohibited only in narrowly construed exceptions. This article serves as post-script (PS), to explain the apparent contradiction. It concludes that the main reason for this apparent contradiction is the application of the fundamental principles of international law—sovereignty, territorial integrity and independence—which are consistent with intervention by invitation but are undermined by self-defence against non-state actors.https://upjournals.co.za/index.php/CILSAam2022Public La

When elephants collide it is the grass that suffers : cooperation and the Security Council in the context of the AU/ICC dynamic

Much has been written about the tension between the African Union and the ICC. Equally, the relationship between the ICC and the Security Council has received a significant amount of attention. Very often, the discourse has presented the debate a stand-off between the protagonist fighting the good fight and antagonists intent on wanton destruction. This article is concerned with the relationships between the ICC, AU and the Security Council. It argues that the relationships can be characterised as triangular conflictual relationship in which all three sides of the triangle are straddled by cooperation. The paper argues that all three entities, the ICC, the AU and Security Council are culpable in the use and abuse of cooperation against each other in the pursuit of narrow interests.http://booksandjournals.brillonline.com/content/journals/170873842016-09-30am201

Interpretation and international law in South African courts : the supreme court of appeal and the Al Bashir saga

The South African Constitution is regarded as an international-law friendly constitution. Much has been written about the willingness of South African courts to refer to international law instruments when interpreting and applying South African law. Yet, the extent to which South African courts have applied recognised tools and methods for the identification and interpretation of international law has not similarly been considered. The recent case concerning South Africa’s decision not to arrest the President of Sudan, Al Bashir, highlights the importance of a proper approach to the interpretation and identification of international law by South African courts. In this case, the Supreme Court of Appeal had to consider the complex interrelationships between two treaties, namely, the AU South Africa host country agreement and the Rome Statute of the International Criminal Court, customary international law and a UN Security Council resolution. The objective of the article is not to determine the correctness or not of the decision. Rather, the article is aimed at assessing the Court’s approach to the methodological questions of interpretation and identification of international law. The article, therefore, evaluates whether the rules of interpretation as contained in the Vienna Convention on the Law of Treaties have been applied by the Court in searching for the meaning of the instruments under consideration. It also assesses whether the relationship between the various sources of international law at play in the Al Bashir matter is adequately considered.http://www.journals.co.za/content/journal/ju_ahrljam2017Centre for Human Right

Progressive development and codification of international law : the work of the International Law Commission during its sixty-sixth session

The International Law Commission (the Commission) finds itself at somewhat of a crossroad. It was established to promote and facilitate the progressive development and codification of international law. The Commission has, however, already codified the main areas of international law during what many have referred to as its golden years. Moreover, many organisations are now taking on the role of law-making in their own specialised fields, eg the International Maritime Organisation is adopting its own treaties and even the General Assembly often engages in its own treaty-making processes.http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=685am2016Public La

The work of the International Law Commission in its seventy-first and seventy-second sessions : COVID, cancellations and much more

This contribution describes the work of the UN International Law Commission (ILC) during its seventy-first and seventy-second sessions. Due to the ongoing COVID-19 pandemic, the work of the Commission over the last three years has been severely hampered, yet the Commission was still able to produce significant work. In the seventy-first session, the Commission adopted, on first reading, the Articles on the Prevention and Punishment of Crimes against Humanity. It also adopted two instruments on first reading, namely the Draft Conclusions on Peremptory Norms of General International Law and the Draft Principles on the Protection of the Environment in Relation to Armed Conflict. In the seventy-second session, the ILC adopted two first-reading texts, namely the guidelines on the protection of the atmosphere and the Guide to Provisional Application of Treaties. The Commission was also active in the relation to new topics. In the seventy-first session it placed on its current agenda, the topic sea-level rise in relation to international law. On its long-term programme of work, it placed two topics, namely piracy and robbery at sea under international law and reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law. In the seventy-second session it placed on its agenda the topic subsidiary means for the determination of rules of international law.https://upjournals.co.za/index.php/SAYILhj2022Public La

A horizontal treaty on cooperation in international criminal matters : the next step for the evolution of a comprehensive international criminal justice system?

This paper addresses the intersection between two key concepts in international criminal justice, namely cooperation and complementarity. While it is recognised that domestic courts carry main responsibility for ensuring accountability for the commission of international crimes, there appears to be gaps in two areas. First, international law does not make provision for a comprehensive obligation to investigate and prosecute such crimes. Second, there is no comprehensive and robust interstate cooperation obligation, necessary to ensure successful domestic investigations and prosecutions. The paper assess two initiatives designed to fill these gaps, and considers their strengths, weaknesses and the possible synergies between them.http://reference.sabinet.co.za/sa_epublication/sapr1http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=21413am201