Comparative and International Law Journal of Southern Africa - Volume 48, Issue 2, January 2015

The intervention in Libya in 2011 was claimed to have been a triumph in two respects: on the one hand the UN Security Council, by passing resolutions 1970 and 1973, had demonstrated its ability to react to humanitarian crises without any of the five permanent members of the council resorting to a veto. On the other hand the concept of humanitarian intervention in its more recent guise of the "responsibility to protect" was seen by some as having finally gained recognition within the international community as a legal concept.

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More than three years after the intervention it will be argued here that such optimistic claims were premature. It will be shown that the way a coalition of NATO and other states implemented resolution 1973 was not in accordance with that resolution and therefore violated international law. As a direct consequence of this, the Security Council has now reverted to its former paralysis, as Russia and China are, understandably, no longer willing to grant NATO states a mandate for action. This has been most evident in respect of the civil war in Syria. Moreover, developments in Libya since the intervention have done more to discredit the concept of the "responsibility to protect" than any criticism from an international law perspective possibly could.

In the exercise of its constitutional authority to review legislation for unconstitutionality, can a court review the internal affairs or processes of the legislature? In other words, can the court intervene in the legislative process, the internal affairs of the legislature, or in a dispute between members and officials of the National Assembly notwithstanding the principles of separation of powers, the rule of law, and supremacy of the Constitution? Assuming that the court can intervene, then, on what ground(s) can such intervention take place? The recent split decision by the Constitutional Court in Mazibuko v Sisulu, Speaker of the National Assembly 2013 6 SA249 (CC) affirms two approaches : the traditional common-law, non-interventionist approach epitomised by the minority judgment, and the modern South African constitutional-interpretation approach represented by the judgment of the majority. The question common to both approaches, however, is whether the conduct of the functionaries of the Assembly violated a member's right to free speech and debate in the Assembly. This question is investigated alongside those instances where parliamentary Bills have been challenged for constitutionality. The conclusion inevitably is that the common-law, non-interventionist approach to the privileges of the legislature does not apply unconditionally in the modern South African constitutional state where the Constitution provides otherwise; conduct of the Speaker or any other official of the legislature violates individual or minority members' rights; or where the rules of the Assembly are defective and, therefore, inconsistent with the Constitution.

The International Civil Aviation Organisation (ICAO) has been intensifying efforts to improve aviation safety in the past few years. One of the ways it sought to do this was to encourage states to move towards a more harmonised system of upper airspace management. This has also influenced the operations of regional blocs such as the Southern African Development Community (SADC), the East African Community (EAC), and the Common Market for Southern and Eastern Africa (COMESA). The efforts to gradually build towards a single African upper airspace management system is preceded at the domestic level by bilateral arrangements between member states of The ICAO in terms of which some states delegate the monitoring and management of their upper airspaces to a third, more capable state. This paper assesses the compliance of both Lesotho and Swaziland with the ICAO's recommendations under its Universal Safety Oversight Audit Programme (USOAP) programme. It thus focuses on the delegation of the upper airspace management of two southern African states, namely Lesotho and Swaziland to South Africa as a response to the recommendations contained in the USOAP Report. The paper will assess how these agreements were entered into between the three countries, and how they add to or frustrate the efforts at the SADC level of doing away with territorial or nationally regulated upper airspaces and introducing a single sky controlled from a central point rather than from different states. This article limits itself to civil aviation only.

One of the responsibilities of a customs administration is the collection of customs duties on imported goods. This necessitates the tariff classification of the goods in question. As a result of South Africa's membership of the World Customs Organization, specific obligations in relation to tariff classification are incurred. Tariff classification is a highly technical and intricate undertaking, subject to both national and international law. Especially the implementation and application of the international provisions result in varying interpretations by stakeholders. This, inevitably, results in disputes. This article discusses the position in South Africa regarding customs tariff classification dispute resolution and compares the South African provisions and practices with those in Australia and Canada. The differences in the approach to dispute resolution in the three countries are critically analysed. In conclusion it is recommended that South Africa should consider introducing an independent tribunal along the lines of the tribunals established in Australia and Canada, or, alternatively, extending the jurisdiction of the Tax Court to include customs duty disputes.

This article advances a conceptual view of the role of local government in global environmental governance ('GEG') and the system of transnational environmental law ('TEL'). The underlying hypothesis is that a deeper understanding of the role of local governments (global cities and smaller local authorities) is expedient as it has the potential to curb some recurring GEG failures and contribute towards improvements in the pursuit of the objectives of TEL. The Merton Rule in the United Kingdom is singled out to exemplify the potential of local government in the pursuit of shared trans-boundary and global environmental ideals. The Merton Rule refers to a progressive prescriptive local planning policy that requires new buildings to generate at least ten per cent of their energy needs from on-site renewable energy equipment. The broader effect that the Merton Rule has had and the understated emphasis on inter-actor support to be found in the literature on subsidiarity, are combined in three final observations: a) the notion of 'think global, act local' is challenged; b) the individual and joint potential and the capacity of cities and other forms of local government must be unlocked through consistent inter-actor support in the 'new' global context; and c) the role of local governments in GEG and TEL does not point in only one direction.

The article analyses the potential negative impact of the commercial mediation process, gleaned from experience in foreign jurisdictions, to assess the lessons that can be learned in order that such negative effects can be avoided as the process develops as a viable alternative to judicial adjudication and arbitration in South Africa. The limits of mediation and the need for court adjudication, both for those cases that require it and for providing the shadow of the law within which commercial mediation functions are assessed. The impact of the process on court backlogs, reducing trial rates, the potential costs to lawyers, clients and justice and the potential baleful impact of power imbalances in commercial mediation are analysed and discussed. The article proceeds to assess the approach of the South African legislature to defining mediation in various statutes and reveals that much of the criticism of the process is based on the fact that many varied processes are collectively described as mediation. The article concludes with a focus on the need to appropriately describe the process, as the issues discussed do not invalidate the rationale for encouraging the use of commercial mediation; they play an instrumental role in defining its appropriate limits.