Browsing by Author "Lehmann, Karin"
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- ItemRestrictedAboriginal title, indigenous rights and the right to culture(2004) Lehmann, KarinThe doctrine of aboriginal title has been the subject of considerable academic commentary in South Africa in the past few years. The generaltenor of this commentary has been approving of the doctrine. Proponents of the doctrine are of the view that it provides a means for communities to obtain ownership of land when they are not able to do so through the Restitution of Land Rights Act 22 of 1994. This article questions whether the doctrine really is of value for South African communities. On the one hand, it is suggested that few communities, if any, would meet the doctrine’s rigorous requirements. More significantly, it is suggested that the doctrine, in its parent jurisdictions, does not operate to restore land to dispossessed communities. It recognises only that aboriginal communities currently in occupation of land have rights in and to the land. It is in this regard that the doctrine’s application in South Africa is most problematic. The terms ‘aboriginal’ and ‘indigenous’ are used interchangeably under comparative and international law. Although there is standard definition of ‘indigenous’, under the suggested definition that has been most widely accepted, it is not clear that the black African majority in South Africa would constitute ‘indigenous’ peoples, in the sense of constituting distinct rights bearers. A broad definition of ‘indigenous’ that would include black African communities is not consistent with the purpose that the recognition of indigenous rights seeks to achieve. A narrow definition of ‘indigenous’ that includes only the descendants of Khoesan peoples is likely to prove highly contentious, and may undermine the spirit of national unity and reconciliation that the Constitution seeks to achieve. An approach that avoids the need to identify communities as indigenous for the purpose of claiming rights in and to land is therefore to be preferred. It is suggested that the constitutional right to culture provides an alternative, since the link between aboriginal title and the protection of culture is clearly drawn in Canadian and Australian cases.
- ItemOpen AccessAn argument for more plurilateral agreements and their value for developing countries: stemming the tide of preferential trade agreements, post-Doha(2017) Houston-McMillan, Jason; Lehmann, KarinThe latest round of multilateral trade negotiations at the WTO, the Doha Round, is deadlocked, and it is unlikely that any further significant rule-making progress will be made there. The system's faltering has resulted in an unprecedented move towards preferential trade agreements between WTO Members as alternative negotiating platforms. The result is an ever-expanding divergence of the global trading system, which gives rise to added complexity and wider discrimination than would follow from alternatives - specifically the increased use of plurilateral agreements. Preferential agreements, particularly worryingly, may also have serious consequences for developing and least-developed countries in particular. This paper argues that, in light of the stalling of the Doha Round, greater effort should be made by WTO Members to pursue plurilateral agreements in specific policy areas and to move towards a system incorporating more 'variable geometry' which will result in progress in existing areas which have seen little movement since the Doha Round began. Given the recent proliferation of Preferential Trade Agreements and their potential negative effects on rule-making and the WTO, and on developing countries, it is vital that alternatives are explored in order to promote adaptability which would result in a more effective and relevant WTO.
- ItemOpen AccessCan port state measures taken against RMFO partners be reconciled with international trade law? a critical analysis of the EU shared stocks regulation in light of the herring dispute(2016) Auld, Kathleen; Lehmann, KarinThe European Union (EU) and Faroe Islands, a small self-governing archipelago under the sovereignty of Denmark, both belong to the North-East Atlantic Fisheries Commission (NEAFC). NEAFC is a regional fisheries management organisation (RFMO) which is responsible for the management of, inter alia, Atlanto-Scandian herring. NEAFC parties have a long-term management plan in place for Atlanto-Scandian herring. Based on recommendations from the International Council for the Exploration of Seas (ICES) the parties set a total allowable catch (TAC) for the herring and divide this among the contracting parties each year. At the 2012 consultations between the NEAFC parties the Faroe Islands requested a larger share of the TAC. The Faroe Islands left the consultations after the other parties repeatedly refused this request. It was granted a share of the TAC by the other four states in its absence. It then set its own catch quota far above this allocated share. In response the EU put in place port state measures to prevent Atlanto-Scandian herring from entering the EU. This included an import ban and a ban on the use of EU ports by Faroese vessels. The EU took this action under Council Regulation (EC) No. 1026/2012 (Shared Stocks Regulation) which allows measures to be imposed against third countries that allow non-sustainable fishing of common or straddling stocks. This includes measures taken against RFMO partners for non-compliance with RMFO laws, as RFMOs are generally set up to conserve straddling fish stocks. This Regulation was promulgated in line with a number of multilateral environmental agreements (MEAs) such as UNCLOS and the United Nations Fish Stocks Agreement (UNFSA). The Faroe Islands challenged the Shared Stocks Regulation and the specific Implementing Regulation imposing the port state measures in both the World Trade Organisation (WTO) and a Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS). However the matter was settled before either of these tribunals could hear the case. The dissertation interrogates whether the EU Regulations are consistent with WTO law, specifically the General Agreement on Tariffs and Trade (GATT), using the facts of the Atlanto-Scandian herring dispute. Chapter I sets out the background to the dispute, and explains the concepts of illegal, unreported and unregulated (IUU) fishing, and port state measures. Chapters II and III of the dissertation consider the consistency of the EU Regulations with the GATT. Chapter II finds that the EU Regulations contravene one or more of Articles I, V and XI of the GATT (the substantive provisions). Chapter III considers whether these measures, having contravened one of the GATT substantive provisions, may be justified under Article XX of the GATT (the exceptions provision). Chapter III concludes that, although well-crafted, the EU Regulations may still not be justifiable under the Article XX Chapeau in the particular circumstances of the herring dispute, based on principles in previous WTO cases. Chapter IV considers the relationship between multilateral environmental agreements (MEAs) relevant to IUU fishing and WTO agreements, to determine whether the EU Regulations could be considered GATT-consistent by reference to these MEAs or whether the MEAs could override WTO law. Chapter V concludes.
- ItemOpen AccessDeath and dependency: The meaning of 'Dependent' under Section 37C of the Pension Funds Act 24 of 1956(2009) Lehmann, KarinIn a recent decision on the disposition of pension benefits in terms of s 37C of the Pensions Funds Act 24 of 1956 ('the Act'), the present Pension Funds Adjudicator, Mamodupi Mohlala, determined that cohabiting life partners who are financially inter-dependent on each other at the time of one partner's (the deceased's) death, automatically qualify to be treated as factual dependents of the deceased, and as such are entitled to be considered amongst the potential pool of beneficiaries when the trustees decide on an equitable distribution of the deceased's death benefits. The decision in point was that of Hlathi v University of Fort Hare Retirement Fund (PFA/EC/9015/2006), handed down on 18 March 2009. In reaching this decision the Adjudicator broke with the test for factual dependence of cohabitees established by her predecessor, Vuyani Ngalwana, in 2005 in Van der Merwe v Central Retirement Annuity Fund (PFA/EC/1566/02/KM). The approach adopted in Hlathi (supra) appears to have found favour with commentators in the industry (see for example Alexander Forbes Legal Department 'The legal status of cohabitees' in On the Scales, Alexander Forbes legal update (May 2009) in which it is stated that 'trustees will take comfort from this case, which recognises that interdependency is sufficient for the purposes of proving financial dependency between couples'), and accords with the previously expressed view of scholars, who would appear to be of the view that the present approach is to be preferred on both the law and on the equities (see for example Mtendekwa Owen Mhango 'An examination of the accurate application of the dependency test under the Pension Funds Act 24 of 1956' (2008) 20 SA Mercantile LJ 126). I would respectfully disagree, both with the adjudicator's decision and with the support it appears to have garnered in the industry.
- ItemOpen AccessFeta and chablis - what's in a name? : systems of GI protection under the aspect of genericness(2012) Süess, Adrian; Lehmann, KarinThis paper will first analyse the relevant Trade Related Aspects of Intellectual Property Rights (TRIPS) provisions regarding the protection of GIs and a concept of generic terms under TRIPS. Second, different regional and national systems on the protection of GIs and the respective concepts of genericness will be analysed. The intention is to determine the criteria of when a term is considered generic. Once these criteria are established they could prove useful if considered in a dispute before a WTO Panel. Finally, this paper shall briefly look into alternatives how future disputes on genericness could be avoided under the auspices of the WTO.
- ItemOpen AccessSouth Africa awaits a possible new law banning foreign ownership and restricting domestic ownership of agricultural land: Is this in line with this country's obligations and commitments under the GATS and its BITS?(2017) Ewers, Jade Güdron; Lehmann, KarinThe South African Government publicly announced its intention to table the Regulation of Land Holdings Bill in Parliament soon, as part of their land reform priority. This potential new law aims to prohibit foreign ownership of agricultural land and to place ceilings on the size of agricultural land that citizens and foreigners may own. Foreigners will be allowed to conclude long term leases. Some parties most likely to be affected by this proposed new Bill are South Africa's fellow WTO Members in services trade and investors from its BIT partner countries. As a WTO Member and BIT partner, SA undertook various contractual obligations and commitments. The primary objective of this study is therefore to determine whether, by promulgating the proposed Bill, South Africa might be violating any of these obligations or commitments. This is done by considering firstly the policy and constitutional background of the Bill in light of the General and Specific GATS commitments such as the MFN, Transparency, National Treatment and Market Access Commitments. The outcome of this analysis shows that South Africa may violate its National Treatment and Market Access Specific Commitments by imposing the ban on foreign ownership of agricultural land. This is because those foreign services providers intending to own (as opposed to leasing) agricultural land to establish commercial presence in South Africa, will be prohibited from doing so - despite South Africa's GATS Schedule of Specific Commitments not indicating any such land ownership restrictions either horizontally or sector-specifically. Examples of affected service sectors are the Tourism, Manufacturing and Construction sectors. It is then concluded that (i) South Africa could potentially raise the public order General Exception against any possible violation claims; but (ii) that South Africa should in the alternative, rather consider modifying or withdrawing some of its GATS Commitments. The protections which South Africa's BITs provide are then analysed in light of what is publicly known about the proposed Bill. It is concluded, for example, that the restriction of the property rights of existing foreign owners of agricultural land in South Africa by restricting their rights to dispose of their land to South Africans only – may constitute indirect expropriation for which they should be compensated in terms of relevant BITs. Although the country's investment policy vis a vis BIT has changed leading to the termination of, for example, some European-South African BITs, these agreements all contain sunset clauses opening up the country for potential investor-state arbitration claims for up to 20 years. The thesis concludes with the recommendation that South Africa carefully considers the implications of potential claims from its WTO and BIT partners and in also, other alternative land reform options.
- ItemOpen AccessThe Harmonisation and Regionalisation Obligations of The SPS Agreement and The Issues Facing These Obligations(2019) Macfarlane, Abbey-Jean; Lehmann, KarinThis dissertation examines the obligations created by Article 3 and Article 6 of the SPS Agreement. It uses Reports accepted by down by the Dispute Settlement Body to find and unpack the interpretation of both Article 3 and 6. These interpretations will be unpacked and examined in detail It further identifies issues and challenges facing these Articles and the obligations which they create. This discussion is held primarily within the context of Developing Country Members. In relation to this discussion policy suggestions will be given forward as possible solutions to certain of the issues and challenges identified. In the course of this discussion the current dispute, which is still in the consultations phase, between Indonesia and Brazil regarding the Importation of Bovine Meat is examined. This paper attempts to provide a probable outcome should this dispute appear before a panel. This outcome relates exclusively to the Article 3 and Article 6 sections of this dispute.
- ItemOpen AccessThe threat of expropriation in commercial contracts entered into with states : lessons from the case of Lap Green Networks of Libya and the Zambian government(2014) Matambo, Nswana Faith; Lehmann, KarinForeign direct investment (FDI) continues to be made into Africa, as an important means of strengthening the national economies of the various countries in which it is undertaken. However, while FDI inflows continue into these economies, there has been a relative decline in FDI attractiveness into Africa as shown by Africa’s share of global FDI inflows which stood at only 4.4 per cent in 2010. One of the factors that deter FDI is political instability caused by government actions. It is noted that in some instances following a regime change, there is a repudiation of former contracts with foreign firms, increasing the risk of expropriation and thereby reducing the volume of FDI. An example of a regime change that resulted in the cancellation of contracts with foreign firms and the expropriation of property rights that had been acquired as a result of those contracts, is that which occurred in Zambia in 2012 with the [repossession] by the government of Zamtel Limited, a telecommunications company, and the termination of a concession agreement entered into by the government with Zambia Railways Limited. While the right to expropriate property of citizens is the sovereign preserve of every state (provided that such expropriation is in the public interest and is accompanied by adequate compensation for the person from whom the property is expropriated) there remain instances where states abuse this sovereign right and carry out unlawful expropriations. Although most states have legislation which regulates expropriations, there remain some gaps in domestic legislation that do not adequately safeguard the rights of persons whose property is expropriated. Unlawful and arbitrary expropriations carried out by states without impunity, are a major deterrent to FDI. It is therefore necessary to consider whether the current international law framework relating to expropriations, provides an effective means for safeguarding the interests of property owners whose property is expropriated, where domestic legislation falls short of the required standard. These considerations will in this paper be examined in the context of international commercial contracts entered into by foreign entities with governments. These considerations are further necessary in order to offer solutions to foreign investors who may find their property unlawfully expropriated as a result of political action, and who may be unable to seek proper or meaningful redress under the domestic laws of the expropriating states. Establishing the extent of the remedies that are provided by international law may seek to encourage FDI inflows into developing economies, even in the face of the real risk of political instability resulting in arbitrary or unlawful expropriations.
- ItemOpen AccessTrade and sustainable development : using the World Trade Organization to more effectively protect the environment(2012) Hagedorn, Rosa; Lehmann, KarinThe Brundtland Report also defines sustainable development as “a process of change in which the use of resources, the directions of investments, the orientation of technological developments, and institutional change all enhance the potential to meet human needs both today and tomorrow.” This vague and broad definition relies on the notion that the world’s environment is a system where actions in one country can affect life on other continents. Examples of this include the 2010 Icelandic volcano eruption that affected air quality and travel in Europe, and the recent radiation detected in the United States after the earthquake and subsequent radiation leaks in Japan. The definition also implies that practically every aspect of our lives can have some effect, or can be relevant to, achieving a sustainable development goal. Most forms of production and consumption, key aspects of international trade, affect and can harm the environment. Thus, the issue is less about stopping these actions and more about making them less harmful to the environment and humankind. There will always be tension between forms of economic activity and environmental protection. However, trade is only one of many economic activities, and the WTO cannot be solely responsible for all aspects of the promotion of sustainable development and environmental protection. At its most general definition, international trade is the “economic interaction among different nations involving the exchange of goods and services.” It can lead to both economic growth and development. At its core, international trade involves the basic concept of supply and demand. Human needs and desires drive what will be in demand. This demand drives the need for a supply of that resource. Thus, the real question is what aspects of the current trading system, including the WTO, can be enhanced or changed to promote sustainable development. This paper aims to examine the relationship between the WTO and sustainable development. It further seeks to evaluate the ways in which the relationship has been successful and the ways in which it has been hindered. Finally, this paper looks to the future and suggests ways to enhance and change this relationship and more effectively protect the environment through the WTO.
- ItemOpen AccessTrade and sustainable development: regulating PPMs in the WTO(2017) Jere, Maude; Lehmann, KarinThe popularisation of sustainable development and increasing alarm of the over-exploitation of natural resources and its impact on the environment has forced the international community to recognise that the current condition of the environment is a global concern. Developing alongside this recognition is an awareness of the relationship between economic growth/ trade liberalisation and the environment. The reconciliation of trade and environment necessarily involves international trade organisations and how their policies affect the environment. To this end a large part of the trade and environment debate has involved the World Trade Organisation (WTO) and its approach to trade measures that relate to environmental protection, more specifically, on whether its treatment of non-product related Process and Production Methods is in line with the goal of sustainable development. In a setting where the 'the major cause of the continued deterioration of the global environment is the unsustainable pattern of consumption and production', states have been charged with the responsibility of setting standards that regulate the processes and methods used to produce goods so that the damage to the environment is minimised. Has the WTO been able to balance the goal of trade liberalisation with environmental protection and does its policy in relation to non-product-related Process and Production Methods undermine sustainable development and the ability of states to set their own environmental protection agenda? The dissertation will try to show that while GATT rules are not designed to undermine the objective of environmental protection, their application has reduced the ability of states to set their own agendas in relation to environmental protection. This will be done through an examination of case law with reference to the 'like product' analysis under Article III of the GATT which governs domestic regulations and the treatment they afford to domestic and imported products. It will show that the WTO's reluctance to use non-product related Process and Production Methods as a way of differentiating products, has the potential of undermining the efficacy of ecological protections put in place in pursuit of sustainable development. After an examination of Article XX, the thesis shows that while Article XX provides exceptions to the obligations of member states, it does not provide enough stability and predictability to address the failing of Article III. In doing the WTO has hindered the promotion of sustainable development as PPMs which are largely a response to failed multilateral efforts to achieve consensus on environmental protection.
- ItemOpen AccessTrade and the environment : the legality of unilateral measures with extraterritorial effect to protect the environment under the WTO/GATT(2012) Schuster, Aline; Lehmann, KarinThe preamble of the Agreement establishing the WTO, the so called Marrakesh Agreement, points out the general significance of environmental protection and sustainable development. The WTO law contains several provisions concerning the environment. However, it is not yet finally clarified in how far WTO Members can adopt measures to protect the environment where those measures have trade restricting effects. This question is particularly problematic where a Member implements such a measure unilaterally and the measure affects other countries’ policies. The question at stake is to what extent Member States can unilaterally adopt measures to protect the environment where those measures have extraterritorial effect, i.e. where those measures require other states to change their policies in order to gain access to the importing country’s market. The GATT/WTO adjudicating body had to deal with two disputes addressing this issue, namely the Tuna-Dolphin dispute5 and the Shrimp-Turtle case. These two disputes are of outstanding importance for the issue of unilateral measures with extraterritorial effect to protect the environment. Both disputes dealt with the question whether import embargoes, that were inconsistent with Article XI of the GATT for they imposed quantitative import restrictions, could be justified under Article XX (g) of the GATT as measures to conserve exhaustible natural resources. The two decisions interpreted Article XX of the GATT, particularly paragraph g of that provision, differently. The question whether countries can unilaterally adopt measures to protect the environment where those measures have extraterritorial effect must be analysed against the backdrop of both WTO jurisprudence and general principles of international law.
- ItemOpen AccessTrade liberalisation vs public morality : can the European Union seal ban be justified under the GATT Article XX (a)?(2014) Nsanta-Kalimukwa, Natasha; Lehmann, KarinThe objective of the research is to assess the strength of a potential exception available to the EU under Article XX (a) of the GATT. This is not the first time that issues to do with animal welfare are being challenged at the WTO dispute settlement system. Animal welfare issues have been at the centre of conflicts from the times of the GATT through to the creation of the WTO. For example, in 1993 a dispute arose when the U.S. adopted a law known as the U.S. Marine Mammal Protection Act which established standards of harvesting tuna using purse seine nets to prevent the unnecessary killing of dolphins. This law entailed that if a country exporting to the U.S. did not meet the standards as specified in the law, the tuna would be embargoed. The Panel ruled against the U.S although the panel report was never adopted because under the old GATT regime, a decision could be blocked by a member state that was unhappy with the decision and the U.S. blocked its adoption. This scenario is no longer possible because under the WTO because of the negative consensus principle. Further, in 1997, under the United States Endangered Act of 1973, the U.S. imposed a ban on the importation of certain shrimp and shrimp products that were not caught using turtle excluding devices (TED)in their nets when fishing in areas where there a significant likelihood of encountering sea turtles. Although the two cases were brought under Article XX (b) exception, they are still important for the seals case because the main reason the products were banned was because the countries who adopted the bans did not subscribe to the methods used in the hunting which raised concerns in their countries. Seals have also come under contention before when in 1983 the EU banned products from ‘whitecoats’ and bluebacks’ a species of seals also known as harp and hooded seals respectively that have not yet been weaned as a result of concerns over their conservation status. The current seal dispute is therefore important for two reasons. Firstly the study is ofparticular importance because the moral exception under GATT is rarely invoked. It will be the third dispute under the GATT specifically to invoke the public morals exception and the second dispute under the WTO. So there has not been a lot of adjudication on the exception. Secondly, it is the first time that a dispute panel at the WTO is adjudicating upon a trade measure adopted for the protection of animal welfare by a Member State purely based on moral beliefs and indignation.