The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

by | Sep 19, 2021 | SLR, SLR V32 I2

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA BA (Hon) MA PhD; Senior Research Associate at the Department of Politics and International Relations, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 330 – 361
https://doi.org/10.47348/SLR/2021/i2a8

Abstract

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

by | Sep 19, 2021 | FUND, FUND V27I1

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

by | Sep 19, 2021 | FUND, FUND V27I1

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

by | Sep 19, 2021 | FUND, FUND V27I1

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Author: Stephen Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

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Peté, S
Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2
Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, and to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, which ultimately manifested as a series of rebellions and revolts throughout the colonial period, and which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with, in particular, African offenders. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that made up the ideology of white supremacy in the colony at the time.

The Contribution of Papyrus Ashmolean Museum 1945.97 (“Naunakht’s Will & Related Documents”) to Our Understanding of The Ancient Egyptian Testamentary Disposition and Succession Law

by | Sep 19, 2021 | FUND, FUND V27I1

The Contribution of Papyrus Ashmolean Museum 1945.97 (“Naunakht’s Will & Related Documents”) to Our Understanding of The Ancient Egyptian Testamentary Disposition and Succession Law

Author Nicolaas J van Blerk

ISSN: 2411-7870
Affiliations: LLB MA D Litt et Phil (Ancient Near Eastern Studies)
Source: Fundamina, Volume 27 Issue 1, p. 101-142
https://doi.org/10.47348/FUND/v27/i1a4

Abstract

The New Kingdom Papyrus Ashmolean Museum 1945.97 (better known as “Naunakht’s will and related documents”) can assist us in gaining a better understanding of ancient Egyptian testamentary dispositions and its succession law. A problem that must be borne in mind when studying any ancient text, is that one should never impose modern legal concepts on these ancient texts. Nonetheless, these ancient texts may contain building blocks of later legal concepts. In particular, Naunakht’s will may provide valuable information on concepts and elements pertaining to succession law in general. In addition, it may provide further valuable information on testamentary dispositions in particular and may indicate that the building blocks of succession law are much older than Roman law.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

by | Sep 14, 2021 | AYIH, AYIH 2020

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

Author: Dire Tladi

ISSN: 2521-2621
Affiliations: Professor of International Law, University of Pretoria; Member of the UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens).
Source: African Yearbook on International Humanitarian Law, 2020, p. 1 – 14
https://doi.org/10.47348/AYIH/2020/a1

Abstract

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

by | Sep 14, 2021 | AYIH, AYIH 2020

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

Author: Lilian Chenwi

ISSN: 2521-2621
Affiliations: LLB, LLM, LLD, dip IPHU. Professor, School of Law, University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2020, p. 15 – 43
https://doi.org/10.47348/AYIH/2020/a2

Abstract

Africa is characterised by, inter alia, oppressive political systems, a culture of impunity of those who govern, and the use of state sovereignty mantra in the face of gross and systematic rights violations. Yet, African states have, through the establishment of the African Human Rights Court, created an avenue for judicial scrutiny of their laws and executive action that affect human rights. While the Court holds great promise in relation to fighting impunity and the provision of effective remedies for rights violations, ensuring respect for human rights, and fostering Africa’s quest for good governance, development and regional integration, it operates amidst state resistance and other complexities, which threaten its effectiveness and existence. This article considers whether, against this background, the Court has shown restrictiveness or progressivity in its enforcement of rights.

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

by | Sep 14, 2021 | AYIH, AYIH 2020

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

Author: Mispa Roux

ISSN: 2521-2621
Affiliations: LLB LLM (International Law) LLD (International Law) (UJ); Senior Lecturer in the Department of Public Law, Faculty of Law, University of Johannesburg; Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg.
Source: African Yearbook on International Humanitarian Law, 2020, p. 44 – 77
https://doi.org/10.47348/AYIH/2020/a3

Abstract

One of the core characteristics of international crimes is that they are committed on a great scale; therefore, the sheer volume and complexity of evidence required to justify investigation and ultimately prosecution inevitably leads to several challenges. Since the first time that persons were held individually criminally responsible at an international level at Nuremberg and in the Far East, to the way in which the permanent International Criminal Court fulfils its mandate, investigating and prosecuting international crimes have involved manifold challenges. This article identifies three challenges faced by international criminal courts and tribunals in investigating and prosecuting international crimes. The first challenge is the investigation phase of international criminal proceedings, specifically the difficulty of selecting cases and identifying persons with the greatest responsibility for the crimes. The second challenge flows from the first, specifically in light of the magnitude of evidence indicating the required gravity to pursue further investigation and eventually prosecution. This raises the difficult question whether investigators, prosecutors, and judges are able to consistently comply with their duty to respect and protect the various fair trial rights to which suspected and accused persons are entitled. The third and final challenge that will be engaged with in this article relates to the formidable impact of international and political relations at all stages of investigation and prosecution of international crimes, which may ultimately thwart compliance with the obligation to prosecute international crimes.

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

by | Sep 14, 2021 | AYIH, AYIH 2020

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

Author: Steve Tiwa Fomekong

ISSN: 2521-2621
Affiliations: Postdoctoral research fellow at the Centre d’études et de recherches de l’Université de Montréal in Canada; PhD in Law from Université Laval
Source: African Yearbook on International Humanitarian Law, 2020, p. 78 – 120
https://doi.org/10.47348/AYIH/2020/a4

Abstract

While significant attention has thus far been paid to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), the rules of humanitarian law that it sets out have not yet been the subject of a specific in-depth analysis. This contribution aims to fill this gap in the literature. It specifically examines the humanitarian law rules contained in the Kampala Convention to determine their meaning and scope, as well as their contribution to strengthening international humanitarian law (IHL). It begins by analysing the articulation of these regional humanitarian rules with the universal rules of IHL that preceded them to determine whether there is any divergence between them. Next, the paper attempts to determine the extent to which the humanitarian law provisions of the Kampala Convention enrich the legal protections provided by IHL for the improvement of the plight of internally displaced persons from armed conflict. Finally, with an approach centred around making suggestions for law reform, the paper demonstrates why and how these rules should inspire the future development of conventional and customary norms that would assist with the challenges of conflict-induced displacement.

Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

by | Sep 14, 2021 | AYIH, AYIH 2020

Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

Author: Kenneth Wyne Mutuma

ISSN: 2521-2621
Affiliations: Senior Lecturer at the School of Law, University of Nairobi, and an IHL practitioner
Source: African Yearbook on International Humanitarian Law, 2020, p. 121 – 158
https://doi.org/10.47348/AYIH/2020/a5

Abstract

With the exception of the shifta wars in the northern part of the country, Kenya has, for the greater part of its post-colonial history, enjoyed relative conditions of peace. This, in turn, has affected the volume of and quality of knowledge on Kenya’s state practice on international humanitarian law (IHL). The Customary IHL study of the International Committee of the Red Cross (ICRC) in 2005 reviewed state practice in the country at the time, based on materials such as military manuals, national laws and case law. However, since 2005, two significant events have had a direct bearing on the country’s IHL state practice. The first is the ushering in of a new constitutional order through the Constitution of Kenya, 2010, and the second is the Kenyan military troops’ incursion into Somalia against the Somali terrorist group, Al-Shabaab. This paper looks at the significant ways in which these two events have led to key additions to Kenya’s state practice, under four main headings: military manuals, national laws, court cases and other sources.