Pub Date : 2023-04-20DOI: 10.25159/2522-3062/11345
Vishal Sharma
The United Nations (UN) can impose sanctions by means of regional and other arrangements. History has demonstrated that during the Cold War era in Europe, the UN has imposed fewer sanctions than in the post-Cold War era. Although the UN Charter originally did not provide for the use of sanctions to protect democracy, it did protect international peace and security. However, the UN Security Council (UNSC) and other regional arrangements and communities like the EU and the AU are currently imposing sanctions even on undemocratic regime change, which should be an internal matter of a state. This development shows increased international commitment in favour of democracy. Further, the UNSC and the EU use different approaches than the AU, when removing sanctions. The AU’s approach in removing sanctions is more realistic and pragmatic. A case study of the Central African Republic shows that the UNSC and the EU approaches on sanctions towards African states could be counter-productive. It is advisable that the UNSC should consider African perspectives, by taking AU opinion into account, when imposing, modifying, or removing sanctions on the African continent. It would further increase local acceptance of sanctions, rendering them more effective. It is necessary to understand that problems in African states could have had local origins, but external factors such as international business interests could have aggravated these problems. Therefore, the targeted and smart sanctions will be more effective if international business interests, that help rebels, are also included in sanctions.
{"title":"The Need to Engage with African Experiences in the United Nations Sanctioning Process: A Case Study of the Central African Republic","authors":"Vishal Sharma","doi":"10.25159/2522-3062/11345","DOIUrl":"https://doi.org/10.25159/2522-3062/11345","url":null,"abstract":"The United Nations (UN) can impose sanctions by means of regional and other arrangements. History has demonstrated that during the Cold War era in Europe, the UN has imposed fewer sanctions than in the post-Cold War era. Although the UN Charter originally did not provide for the use of sanctions to protect democracy, it did protect international peace and security. However, the UN Security Council (UNSC) and other regional arrangements and communities like the EU and the AU are currently imposing sanctions even on undemocratic regime change, which should be an internal matter of a state. This development shows increased international commitment in favour of democracy. Further, the UNSC and the EU use different approaches than the AU, when removing sanctions. The AU’s approach in removing sanctions is more realistic and pragmatic. A case study of the Central African Republic shows that the UNSC and the EU approaches on sanctions towards African states could be counter-productive. It is advisable that the UNSC should consider African perspectives, by taking AU opinion into account, when imposing, modifying, or removing sanctions on the African continent. It would further increase local acceptance of sanctions, rendering them more effective. It is necessary to understand that problems in African states could have had local origins, but external factors such as international business interests could have aggravated these problems. Therefore, the targeted and smart sanctions will be more effective if international business interests, that help rebels, are also included in sanctions.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43891261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-20DOI: 10.25159/2522-3062/10017
Annet Oguttu
This article concerns the tax policy and practical challenges that arise from applying the various transfer pricing adjustments. The lack of clear international guidelines on how to address some issues regarding transfer pricing adjustments and the diverging policy positions that some countries have taken, pose uncertainties for taxpayers and tax disputes which can impede international trade. These challenges are addressed in the article by focusing on the South African position and providing recommendations on how to resolve some of them. The explanation of the murky issues regarding transfer pricing adjustments will be found instrumental for developing countries where the legislation, administration and practice of transfer pricing are not yet well developed. The article’s focus is on South Africa, an emerging economy on the African continent, which is used as a base for many MNEs that invest in the rest of Africa. It will be useful for foreign investors to gain an understanding of South Africa’s position on transfer pricing adjustments.
{"title":"Transfer Pricing Adjustments: The Different Types, Practical Challenges and Recommended Approaches—A South African Perspective","authors":"Annet Oguttu","doi":"10.25159/2522-3062/10017","DOIUrl":"https://doi.org/10.25159/2522-3062/10017","url":null,"abstract":"This article concerns the tax policy and practical challenges that arise from applying the various transfer pricing adjustments. The lack of clear international guidelines on how to address some issues regarding transfer pricing adjustments and the diverging policy positions that some countries have taken, pose uncertainties for taxpayers and tax disputes which can impede international trade. These challenges are addressed in the article by focusing on the South African position and providing recommendations on how to resolve some of them. The explanation of the murky issues regarding transfer pricing adjustments will be found instrumental for developing countries where the legislation, administration and practice of transfer pricing are not yet well developed. The article’s focus is on South Africa, an emerging economy on the African continent, which is used as a base for many MNEs that invest in the rest of Africa. It will be useful for foreign investors to gain an understanding of South Africa’s position on transfer pricing adjustments.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47961089","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-15DOI: 10.25159/2522-3062/11107
Noah Maringe, Mpfari Budeli-Nemakonde
This article deals with the right of employees to freedom of association in Zimbabwe. It adopts a comparative analysis with the International Labour Organisation’s (ILO) standards on freedom of association. In order to achieve this, lessons are drawn from South African labour law and practice since Zimbabwe’s constitutional provisions on freedom of association are similar to those of South Africa. It begins by discussing important sources of the right to freedom of association under the ILO framework which includes relevant Conventions. Zimbabwe adopted a new constitution in 2013 which incorporates the right of employees to freedom of association and all its components under the Declaration of Rights. This is a significant point of departure in analysing the extent to which Zimbabwe complies with its ILO obligations on freedom of association. The constitution applies to both public and private sector employees. However, pieces of legislation which give effect to the constitutional right to freedom of association create a two-tier labour relations system where public sector employees have different laws which govern them. On the other hand, private sector employees fall under the Labour Act. This necessitates a separate consideration of the key provisions which have a direct impact on the enjoyment of the right of employees to freedom of association in Zimbabwe in order to test their constitutionality.
{"title":"The Right to Freedom of Association for Public and Private Sector Employees in Zimbabwe in the Context of International Labour Organisation Standards","authors":"Noah Maringe, Mpfari Budeli-Nemakonde","doi":"10.25159/2522-3062/11107","DOIUrl":"https://doi.org/10.25159/2522-3062/11107","url":null,"abstract":"This article deals with the right of employees to freedom of association in Zimbabwe. It adopts a comparative analysis with the International Labour Organisation’s (ILO) standards on freedom of association. In order to achieve this, lessons are drawn from South African labour law and practice since Zimbabwe’s constitutional provisions on freedom of association are similar to those of South Africa. It begins by discussing important sources of the right to freedom of association under the ILO framework which includes relevant Conventions. Zimbabwe adopted a new constitution in 2013 which incorporates the right of employees to freedom of association and all its components under the Declaration of Rights. This is a significant point of departure in analysing the extent to which Zimbabwe complies with its ILO obligations on freedom of association. The constitution applies to both public and private sector employees. However, pieces of legislation which give effect to the constitutional right to freedom of association create a two-tier labour relations system where public sector employees have different laws which govern them. On the other hand, private sector employees fall under the Labour Act. This necessitates a separate consideration of the key provisions which have a direct impact on the enjoyment of the right of employees to freedom of association in Zimbabwe in order to test their constitutionality.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44204207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-15DOI: 10.25159/2522-3062/10431
Johandri Wright
Oceans are central to the healthy functioning of the Earth’s biosystem, contributing to climate stability and harbouring valuable food resources. Marine corruption is one of the greatest threats to the healthy functioning and conservation of marine resources. Since local authorities offer many viable solutions to some of the problems associated with rapid urbanisation and globalisation, such as marine corruption, it is argued that states should work with their coastal cities to control corruption and improve the sustainable use of marine resources. This article explores how African coastal cities can contribute to the implementation of international law and policy to combat marine corruption. African regional law provides that cities should have sufficient autonomy to regulate and manage their local affairs. It is also argued that because of the nature of marine corruption, coastal cities are in the best position to contribute to addressing it. This means that national governments, at least from the perspective of African regional law, should grant coastal cities the necessary powers and capacities to do so. The article discusses the measures under international law that can be used to control marine corruption. These measures include those contained in anti-corruption laws and those primarily aimed at the sustainable use of marine resources. A case study of Walvis Bay, in Namibia, is used to show what coastal cities can do to control marine corruption.
{"title":"Implementing International Law and Policy to Combat Marine Corruption: How Can African Coastal Cities Help?","authors":"Johandri Wright","doi":"10.25159/2522-3062/10431","DOIUrl":"https://doi.org/10.25159/2522-3062/10431","url":null,"abstract":"Oceans are central to the healthy functioning of the Earth’s biosystem, contributing to climate stability and harbouring valuable food resources. Marine corruption is one of the greatest threats to the healthy functioning and conservation of marine resources. Since local authorities offer many viable solutions to some of the problems associated with rapid urbanisation and globalisation, such as marine corruption, it is argued that states should work with their coastal cities to control corruption and improve the sustainable use of marine resources. This article explores how African coastal cities can contribute to the implementation of international law and policy to combat marine corruption. African regional law provides that cities should have sufficient autonomy to regulate and manage their local affairs. It is also argued that because of the nature of marine corruption, coastal cities are in the best position to contribute to addressing it. This means that national governments, at least from the perspective of African regional law, should grant coastal cities the necessary powers and capacities to do so. The article discusses the measures under international law that can be used to control marine corruption. These measures include those contained in anti-corruption laws and those primarily aimed at the sustainable use of marine resources. A case study of Walvis Bay, in Namibia, is used to show what coastal cities can do to control marine corruption.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47790590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-29DOI: 10.25159/2522-3062/10476
Phenyo Sekati
Cyberspace operates on a geographically borderless platform, thus often rendering national laws ineffective in regulating the impact of cyber-related activities outside South African borders. Recognising this issue, South Africa adopted the Cybercrimes Act, which permits the exercise of extra-territorial jurisdiction over trans-national cyber-related offences. The enforcement and effectiveness of extra-territorial jurisdiction and extradition law have, however, proven to be challenging and controversial in the international sphere. Issues such as internet fragmentation, contrasting municipal laws, and uncoordinated regulatory actions across state boundaries have undermined existing provisions regulating trans-national cybercrimes. These issues are furthered by the increased recognition of human rights, such as the right to privacy, which has deterred international cooperation and collaboration as states are subsequently required to subject their own citizens and entities to increased interception and scrutiny. The main thesis of this investigation is aimed at reviewing the practical implications surrounding the enforcement of extra-territorial jurisdiction and extradition law over trans-national cybercrimes. To this end, states are implored to develop both domestic and multilateral cybercrime laws and to improve existing enforcement mechanisms outlined in extradition law and mutual assistance agreements.
{"title":"Assessing the Effectiveness of Extradition and the Enforcement of Extra-territorial Jurisdiction in Addressing Trans-national Cybercrimes","authors":"Phenyo Sekati","doi":"10.25159/2522-3062/10476","DOIUrl":"https://doi.org/10.25159/2522-3062/10476","url":null,"abstract":"Cyberspace operates on a geographically borderless platform, thus often rendering national laws ineffective in regulating the impact of cyber-related activities outside South African borders. Recognising this issue, South Africa adopted the Cybercrimes Act, which permits the exercise of extra-territorial jurisdiction over trans-national cyber-related offences. The enforcement and effectiveness of extra-territorial jurisdiction and extradition law have, however, proven to be challenging and controversial in the international sphere. Issues such as internet fragmentation, contrasting municipal laws, and uncoordinated regulatory actions across state boundaries have undermined existing provisions regulating trans-national cybercrimes. These issues are furthered by the increased recognition of human rights, such as the right to privacy, which has deterred international cooperation and collaboration as states are subsequently required to subject their own citizens and entities to increased interception and scrutiny. The main thesis of this investigation is aimed at reviewing the practical implications surrounding the enforcement of extra-territorial jurisdiction and extradition law over trans-national cybercrimes. To this end, states are implored to develop both domestic and multilateral cybercrime laws and to improve existing enforcement mechanisms outlined in extradition law and mutual assistance agreements. ","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49012324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-28DOI: 10.25159/2522-3062/10289
Marcia Van der Merwe
South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.
{"title":"The Promotion of Access to Justice through the Constitutional Development of the Doctrine of Forum Non Conveniens","authors":"Marcia Van der Merwe","doi":"10.25159/2522-3062/10289","DOIUrl":"https://doi.org/10.25159/2522-3062/10289","url":null,"abstract":"South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44764283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The protection of property rights is a sensitive issue in the SADC, leading to protracted legal battles and contestations. This article explores the factors engendering the present configurations of property relations in three selected states in the region. The intention of this article is to identify the factors necessary for the development of land markets and to analyse secondary sources on themes, arguments and factors shaping market development. Interrogating the major themes in the prevailing debates, this article identifies African customary rights as an important factor in the development of markets, by acknowledging the significance of the harmonisation of property laws in the region. Since there are cross-juridical gaps between the regulatory goals of states and those of regional communities, the article identifies limitations and opportunities associated with efforts to harmonise the law. Furthermore, proposing measures to narrow the juridical gaps between the municipal and SADC systems, and presenting the idea of a regional protocol as a prospective device to ensure legal convergence.
{"title":"Property Rights Protection and Land Markets in the Context of Juridical Gaps between Municipal and SADC Systems","authors":"Philani L Ndlovu, A. Saurombe","doi":"10.25159/2522-3062/7855","DOIUrl":"https://doi.org/10.25159/2522-3062/7855","url":null,"abstract":"The protection of property rights is a sensitive issue in the SADC, leading to protracted legal battles and contestations. This article explores the factors engendering the present configurations of property relations in three selected states in the region. The intention of this article is to identify the factors necessary for the development of land markets and to analyse secondary sources on themes, arguments and factors shaping market development. Interrogating the major themes in the prevailing debates, this article identifies African customary rights as an important factor in the development of markets, by acknowledging the significance of the harmonisation of property laws in the region. Since there are cross-juridical gaps between the regulatory goals of states and those of regional communities, the article identifies limitations and opportunities associated with efforts to harmonise the law. Furthermore, proposing measures to narrow the juridical gaps between the municipal and SADC systems, and presenting the idea of a regional protocol as a prospective device to ensure legal convergence.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49254466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The African human rights system was born after the adoption of the African Charter on Human and Peoples’ Rights in 1981. The document codifies a set of rights to which citizens are entitled, as well as responsibilities to which states must comply. The clarity with which the document calls for adequate protection for Africans was informed by acts of atrocities suffered by the continent’s population, and the possible recurrence of these acts. To this end, the Charter inspired the establishment of monitoring bodies to ensure states do not stray from the document text. Yet, despite the ground-breaking provisions of the instrument and its supporting institutional architecture, a section of the continent’s population continues to bear the brunt of atrocities because of their skin colour. These individuals are Africans with albinism. As the African Charter commemorates its fortieth anniversary, the paper seeks to survey the extent to which the instrument entrenches the rights of these persons and what steps have been taken or ought to be taken to ensure their rights to equality and adequate protection.
{"title":"Myth and Murder: The African Human Rights System and Persons with Albinism","authors":"Bright Benjamin Nkrumah","doi":"10.25159/2522-3062/9798","DOIUrl":"https://doi.org/10.25159/2522-3062/9798","url":null,"abstract":"The African human rights system was born after the adoption of the African Charter on Human and Peoples’ Rights in 1981. The document codifies a set of rights to which citizens are entitled, as well as responsibilities to which states must comply. The clarity with which the document calls for adequate protection for Africans was informed by acts of atrocities suffered by the continent’s population, and the possible recurrence of these acts. To this end, the Charter inspired the establishment of monitoring bodies to ensure states do not stray from the document text. Yet, despite the ground-breaking provisions of the instrument and its supporting institutional architecture, a section of the continent’s population continues to bear the brunt of atrocities because of their skin colour. These individuals are Africans with albinism. As the African Charter commemorates its fortieth anniversary, the paper seeks to survey the extent to which the instrument entrenches the rights of these persons and what steps have been taken or ought to be taken to ensure their rights to equality and adequate protection.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41636568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-07DOI: 10.25159/2522-3062/10808
S. Eiselen
The adoption of the Vienna Convention for the International Sale of Goods (CISG) 1908 in Africa has been slow in comparison to other regions of the world. The Convention is widely regarded as one of the most successful instruments of international commercial law harmonisation. It has been adopted by ninety-four countries from all regions of the world representing more than eighty per cent of international sales. Despite this, only fourteen African countries have adopted it so far. The research question in this article is why African countries have been reluctant to adopt the CISG, compared to countries from other regions around the world. The aim of the article is to establish and analyse the possible reasons why African countries have been so slow in adopting the CISG and to suggest solutions to improve the situation. The reasons include an ignorance about the Convention, apathy on the side of governments and business alike and the existence of other regional harmonisation instruments such as the Organisation for the Harmonisation of Business Law in Africa (OHADA). It is argued that the impetus for greater acceptance lies within the pressure that might emanate from regional trading blocs such as the Common Market for Eastern and Southern Africa (COMESA), the Southern African Development Community (SADC) and the newly formed African Continental Free Trade Area Agreement (AfCFT). It is also argued that greater awareness amongst practitioners may play a future role if the new generation of lawyers are educated on the Convention.
{"title":"The Adoption of the Vienna Convention for the International Sale of Goods (CISG) 1980 in Africa—A Critical Analysis","authors":"S. Eiselen","doi":"10.25159/2522-3062/10808","DOIUrl":"https://doi.org/10.25159/2522-3062/10808","url":null,"abstract":"The adoption of the Vienna Convention for the International Sale of Goods (CISG) 1908 in Africa has been slow in comparison to other regions of the world. The Convention is widely regarded as one of the most successful instruments of international commercial law harmonisation. It has been adopted by ninety-four countries from all regions of the world representing more than eighty per cent of international sales. Despite this, only fourteen African countries have adopted it so far. The research question in this article is why African countries have been reluctant to adopt the CISG, compared to countries from other regions around the world. The aim of the article is to establish and analyse the possible reasons why African countries have been so slow in adopting the CISG and to suggest solutions to improve the situation. The reasons include an ignorance about the Convention, apathy on the side of governments and business alike and the existence of other regional harmonisation instruments such as the Organisation for the Harmonisation of Business Law in Africa (OHADA). It is argued that the impetus for greater acceptance lies within the pressure that might emanate from regional trading blocs such as the Common Market for Eastern and Southern Africa (COMESA), the Southern African Development Community (SADC) and the newly formed African Continental Free Trade Area Agreement (AfCFT). It is also argued that greater awareness amongst practitioners may play a future role if the new generation of lawyers are educated on the Convention.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47104723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-07DOI: 10.25159/2522-3062/10247
Shelton Mota Makore, P. Osode, N. Lubisi
Although many academic commentators have long argued that the World Trade Organization (WTO)-driven liberal rules of international agricultural trade regulation have a negative effect on the enjoyment of the human right to food, especially in developing countries, there is still a dearth of scholarship offering proposals to ameliorate the situation. This article fills this gap by presenting a discussion of the possible avenues for accommodating the food security-related human rights obligations of states in the extant legal framework for international agricultural trade regulation. It argues that such a development, among other measures, is a plausible response to the problem of food insecurity endemic in developing countries and which manifests in international agricultural trade regulation. The article contends that for the WTO to effectively address the human right to food concerns of developing countries, the free trade regulations, as practised in international agricultural trade, must be complemented with the human right to food as a supreme norm sine qua non lege. It is concluded that this eminently desirable outcome can be achieved through the assimilation of the human right to food into the ‘public morals clause’ of Article XX of the GATT, reading the human right to food into the Agreement on Agriculture, adopting some WTO Ministerial Conference proposals, re-configuring some WTO dispute settlement practices, and lastly, by adopting the proposal of the UN Special Rapporteur on the human right to food.
{"title":"Prospects and Challenges of Embedding the Human Right to Food Obligations into the Legal Framework for International Agricultural Trade Regulation","authors":"Shelton Mota Makore, P. Osode, N. Lubisi","doi":"10.25159/2522-3062/10247","DOIUrl":"https://doi.org/10.25159/2522-3062/10247","url":null,"abstract":"Although many academic commentators have long argued that the World Trade Organization (WTO)-driven liberal rules of international agricultural trade regulation have a negative effect on the enjoyment of the human right to food, especially in developing countries, there is still a dearth of scholarship offering proposals to ameliorate the situation. This article fills this gap by presenting a discussion of the possible avenues for accommodating the food security-related human rights obligations of states in the extant legal framework for international agricultural trade regulation. It argues that such a development, among other measures, is a plausible response to the problem of food insecurity endemic in developing countries and which manifests in international agricultural trade regulation. The article contends that for the WTO to effectively address the human right to food concerns of developing countries, the free trade regulations, as practised in international agricultural trade, must be complemented with the human right to food as a supreme norm sine qua non lege. It is concluded that this eminently desirable outcome can be achieved through the assimilation of the human right to food into the ‘public morals clause’ of Article XX of the GATT, reading the human right to food into the Agreement on Agriculture, adopting some WTO Ministerial Conference proposals, re-configuring some WTO dispute settlement practices, and lastly, by adopting the proposal of the UN Special Rapporteur on the human right to food.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45909433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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