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.
In December 2017, the United Nations General Assembly decided to convene an intergovernmental conference to elaborate an international legally binding instrument on marine biodiversity in areas beyond national jurisdiction. This legally binding instrument would address four elements, namely marine protected areas, marine genetic resources, environmental impact assessments and capacity building and technology transfer. One of the indicators for the success of the legally binding instrument will be an institutional mechanism that is both effective and that can co-exist with existing mechanisms. There is already a proposal for an institutional mechanism under the implementing agreement. However, the proposed institutional mechanism was developed largely with marine protected areas in mind. The purpose of this article is to determine whether this proposed mechanism could work also for the marine genetic resources element of the proposed treaty. This is necessitated by the fact that the marine genetic resources element of the proposed treaty is far more complex and raises issues that are more intractable.
In June 2015, South Africa hosted the African Union Summit. The Sudanese President, Al Bashir, under an ICC arrest warrant for, inter alia, genocide, attended the Summit. As a State Party to the Rome Statute, South Africa was under a duty to arrest AlBashir. Yet, South Africa is also under a duty, both under customary international law and the treaty law (the Host Country Agreement under which the Summit was held) not to arrest him. The South Africa High Court, applying South Africa"s Implementation of the Rome Statute Act and the Rome Statute, concluded that there was a duty to arrest Al Bashir, and also that there was no countervailing duty not to arrest him. This article, against the background of the decision of the High Court decision as well as the decision of Pre-Trial Chamber in the DRC decision, considers the various legal rules, both international and domestic, applying to the situation of Al Bashir. The article concludes that the judgment of the Court ignores the fundamental rules of international law.
… if anything, the story of complementarity's catalysing effect has shown that this is not a world of endless 'complementaries' in which efforts for criminal, restorative, political and legal justice seamlessly 'complement' each other. This is a world of horrific constraint, in which the promotion of one value often compromises another. More precisely, the absolute war on impunity succeeds in achieving some justice, but also produces, shapes and legitimates injustices. This is not a moment for concluding. It is the moment for more questioning. 1
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