Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

Authors Gerrit Ferreira & Anél Ferreira-Snyman

ISSN: 2522-3062
Affiliations: B Iuris (PUCHO), LLB (PUCHO), LLM (RAU), LLD (UNISA), LLD (PUCHO), Professor of Law Extraordinary, NWU, Potchefstroom Campus; B Iuris (PUCHO), LLB (PUCHO), LLM (PUCHO), LLD (UJ), Professor of Law, UNISA.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 410 – 442

Abstract

As a result of the human rights atrocities committed during the Second World War, the human dignity of individuals has become the central concern in many international and regional instruments and domestic constitutions. The Constitution of the Republic of South Africa, 1996 is no exception and places a particular emphasis on the concept of human dignity. In view of the continuing popularisation of the concept, this contribution discusses the current application of human dignity and related concepts within international, regional and South African human rights law in an attempt to get a clearer grasp of its contents. Although human dignity is not explicitly protected in all international and regional instruments and domestic constitutions, its protection is either implicit in the protection of other specific human rights, or explicitly forms part of the protection of such rights. It therefore seems that every individual human right protects some aspect of human dignity. Furthermore, the application of the concept of human dignity seems to relate to other existing concepts in both international and South African law. First, the question as to whether the protection of human dignity in international law may be equated with concepts such as jus cogens and non-derogable rights is analysed. Second, the issues regarding the relation between human dignity and the concepts of ubuntu, boni mores and the public interest are discussed. It is concluded that human dignity is a fluid, vague and ever-changing concept and that as a result of cultural and religious differences it would be virtually impossible to formulate a generic (one-size-fits-all) definition of human dignity that would be acceptable to all cultural and religious groups. It is therefore suggested that the application of human dignity by the courts should be limited to that of a constitutional value that underpins all fundamental rights, rather than elevating it to an all-encompassing right that functions, in practice, independent from all other fundamental rights. The latter would result in an attenuation of the human rights regime in international, regional and domestic law.

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

Author Elsabe Schoeman

ISSN: 2522-3062
Affiliations: BLC (University of Pretoria); LLB LLD (University of South Africa). Dean: Faculty of Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 445 – 457

Abstract

None.

Rupturing International Law to Realise the Right to Development

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Rupturing International Law to Realise the Right to Development

Author Isaac Shai

ISSN: 2522-3062
Affiliations: BA (University of the Witwatersrand); LLB (University of the Witwatersrand); LLM (University of South Africa); LLD (University of Pretoria). Postdoctoral Fellow, Thabo Mbeki African Leadership Institute.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 151 – 168

Abstract

The realisation of the right to development is contingent on the appropriation of the excesses generated by the counter-imperial dimension of international law and on the strategic rupturing of international law. Embedded in this approach is the implicit acceptance that the right to development is a derivative of international law and that international law has an imperial dimension. There is in this sense a golden thread that uninterruptedly connects colonialism, international law and the notion of development. This is buttressed by the fact that international law was the mode within which calls for decolonisation were couched. In addition, post-colonial states advanced arguments for decolonisation using the medium of development under the auspices of international law. In this sense, decolonisation was effected using the language of development. In order to avert re-inscribing the very imperial dimension of international law that must be disrupted, the notion of the right to development ought to treat the excesses generated by international law as political opportunities rather than legal ones. In this sense, law becomes a political strategy as opposed to a legal strategy.

Linkages between Illicit Financial Flows and the Non-realisation of the Right to Development in Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Linkages between Illicit Financial Flows and the Non-realisation of the Right to Development in Africa

Author Gerard Emmanuel Kamdem Kamga

ISSN: 2522-3062
Affiliations: Associate degree, Bachelor degree (University of Dschang); Maitrise (Yaoundé II); LLM, LLD (University of Pretoria). Postdoctoral Research Fellow, Faculty of Law, Department of Public Law, University of the Free State.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 169 – 192

Abstract

In this article, I start on the premise that the gap between the excellent economic performance of Africa and its state of generalised underdevelopment coupled with rampant poverty, corruption, prolonged economic crisis and political instabilities is not the cause but rather the symptom of a deeper evil. In doing so, I review the extent to which the right to development in Africa has not been realised owing to the proliferation of illicit financial flows. The fact is that development is a broad concept, for not only does it include sound economic performance and fair distribution of benefits, but it requires the improvement of the living conditions of individual citizens through the provision of healthcare services, housing, education and infrastructures. This article will shed light on the scope, mechanisms and patterns as well as sophisticated criminal networks and obscure chains of command through which a persistent proliferation of illicit outflows of capital divert resources from their legitimate purpose and result in states losing control over staggering funds and assets that could otherwise be used for poverty alleviation and other basic needs. The article reviews from a comparative perspective some instruments and initiatives in a bid to curb illicit financial flows.

Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019, Uncategorized

Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

Author Serges Djoyou Kamga

ISSN: 2522-3062
Affiliations: Associate Professor at the Thabo Mbeki African Leadership Institute, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 193 – 214

Abstract

The right to development (RTD) is controversial. This controversy is built on the identification of the international community as one of the duty bearers of the RTD. This means that state members of the international community should fund development projects outside their territory or should contribute to resource mobilisation for the achievement of the RTD beyond their borders. Against this backdrop the article seeks an alternative solution for resource mobilisation for the achievement of the RTD. It shifts the RTD from depending on donors and developed countries to the recovery of assets stolen from developing countries through illicit financial flows. The article relies on the power game theory that posits that in the international arena, initiatives are informed by self-interest. However, it also recognises the challenges linked to asset recovery and articulates this position considering the new institutional theory, which believes in ‘the common good’. Another key issue associated with anticorruption and anti-money laundering initiatives which informs asset recovery is that different countries have different norms and values, which are likely to influence the interpretation of the laws and regulations in consideration of the context. Ultimately, successful asset recovery requires a joint adoption and harmonisation of common strategies by actors.

Realising the Right to Development in Africa: Responsible, Responsive and Ethical Political Leadership as a Conditio Sine Qua Non

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Realising the Right to Development in Africa: Responsible, Responsive and Ethical Political Leadership as a Conditio Sine Qua Non

Author Avitus Agbor

ISSN: 2522-3062
Affiliations: Research Professor at the School of Postgraduate Studies, Faculty of Law, North-West University, North West, South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 215 – 233

Abstract

At the dawn of the twenty-first century, the African continent showed very little progress in terms of surmounting its many challenges such as poverty, malnutrition, social injustices, underdevelopment and the plight of diseases and intractable internecine conflicts. The progress reports on the achievements of the African continent were abysmal. Despite the abundance of natural resources on which dynamic and energetic Africans tread their feet, the continent has not been able to move from one in which a good chunk of its people is mired in underdevelopment and injustices to prosperity and justice for everyone. International aid, just like bilateral and multilateral partnerships concluded and provided for the purpose of catapulting socio-economic, cultural and political development, have not yielded the desired results. The fundamental question is what lies between the wealth of the African people and their prosperity? In other words, what prevents Africa from moving from poverty to prosperity, despite its wealth of resources and the support provided by the international community? It is the view of this article that this is attributable to unethical, irresponsive and irresponsible political leadership that has come as a malediction to the continent. Drawing from scholarship on the notion of leadership as well as regional instruments on how political power should be guided in democratic settings, this article argues that ethical leadership becomes the panacea to the surmountable man-made crises plaguing the African continent. Leadership, as used in this context, is at all levels and not limited to the national executive. In short, the survival of Africa, the restoration of hope on the continent and the cultivation of a uniquely impressive African identity that portrays the continent as a benefactor rather than a beneficiary, a role player rather than having an allocated role, will be facilitated by responsive, responsible and ethical leadership.

The Scourge of Human Trafficking in the SADC Region as Hindrance to Development: A Legal Analysis

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

The Scourge of Human Trafficking in the SADC Region as Hindrance to Development: A Legal Analysis

Author Kedibone Juda-Chembe

ISSN: 2522-3062
Affiliations: LLB, LLM (University of South Africa). Senior Lecturer: Department of Jurisprudence, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 234 – 252

Abstract

Human trafficking is a serious crime and a grave violation of human rights. In recent years, there have been indications that this crime is reaching alarming proportions and is becoming more organised and profitable. To curb this crime, the adoption of the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) created a cornerstone upon which to build a global initiative to combat this crime. State parties to the Palermo Protocol—including fifteen of the sixteen Southern African Development Community (SADC) states—must comply with provisions of the Protocol. Due to the fact that SADC citizens face a myriad of vulnerabilities that make them susceptible to trafficking, such as endemic poverty, minimal access to health and education, gender inequality, unemployment and a general lack of opportunities, makes human trafficking not only an issue of human rights and security, but also a development case. The latter is supported by the unequivocal inclusion of this crime for the first time—internationally in the United Nations Sustainable Development Goals, regionally in the African Union’s Agenda 2063 and sub-regionally in the SADC Protocol on Gender and Development. This article attempts to place the issue of human trafficking in SADC within a developmental paradigm. In this regard, it considers the implementation measures of the targets set in the SDGs, Agenda 2063 and provisions of the SADC Gender Protocol. The article argues that the lack of political will in implementing human trafficking provisions, limited resources, corruption and variable performances between SADC countries pose significant obstacles to regional development in SADC.

Kigali Declaration and Plan of Action on the Framework for Development in Africa: What Role for National Human Rights Institutions?

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Kigali Declaration and Plan of Action on the Framework for Development in Africa: What Role for National Human Rights Institutions?

Author Carol Chi Ngang

ISSN: 2522-3062
Affiliations: Postdoctoral Researcher, Free State Centre for Human Rights, University of the Free State.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 253 – 278

Abstract

In this article I do a critical analysis of the Kigali Declaration and Plan of Action, which highlights the role of National Human Rights Institutions (NHRIs) in adopting a human rights-based approach for the realisation of the 2030 global agenda for sustainable development and the 2063 African agenda for development. In November 2017, the Network of African National Human Rights Institutions (NANHRI) convened in the Rwandan capital city of Kigali for its 11th Biennial Conference on Human Rights-Based Approaches in Implementing the Sustainable Development Goals (SDGs) and Agenda 2063. The conference had as overall objective to determine how NHRIs could contribute to the realisation of the human rights components contained in framework instruments for development. While the 2030 agenda consists of seventeen goals adopted by the UN General Assembly as the global framework for development intended to be achieved within a timeframe of fifteen years, the 2063 agenda was adopted by the African Union as a continental strategic framework consisting of seven aspirations designed to achieve structural transformation in Africa over a period of fifty years. Because both agendas are in many ways interconnected in their ultimate purpose to make living conditions better for the African peoples, the Kigali Conference anchored on the consideration that implementing the development agendas entails pursuing a human rights-based approach with NHRIs playing a central role. Acknowledging that a rights-based approach to development is needed to effectively redress Africa’s development setbacks; the question is whether NHRIs can effectively achieve this purpose through the human rights-based approach.

The African Justice Scoreboard: A Proposal to Address Rule of Law Challenges in the Resolution of Investor-state Disputes in the Southern African Development Community

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

The African Justice Scoreboard: A Proposal to Address Rule of Law Challenges in the Resolution of Investor-state Disputes in the Southern African Development Community

Author Lawrence Ngobeni

ISSN: 2522-3062
Affiliations: BProc (Witwatersrand) LLM (UP) LLM LLD (Unisa) PhD Candidate (Witwatersrand). Senior Lecturer, Department of Public Constitutional and International Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 21

Abstract

The forum to which investor-state disputes are referred for adjudication is of critical importance. This is because it brings into play factors such as who adjudicates the dispute, which law the forum should apply, the legal consequence of the outcome of the forum, and the remedies available to a losing party in order to challenge the outcome. There are two main forums to which investor-state disputes are referred, namely international arbitration, and litigation before the courts of a host state. International arbitration is the mainstream forum, as investment treaties support it. Both fora have advantages and disadvantages. International arbitration is expensive, it takes time to conclude, and it lacks an appeal mechanism. Litigation faces challenges such as: a poor state of rule of law; there may be no guarantee of an efficient and independent judicial system by a host state; local courts may lack independence; and litigation may take time to conclude, thus resulting in costly litigation. This article evaluates the pros and cons of international arbitration and litigation, and concludes that litigation is indispensable in investor-state dispute resolution, while international arbitration can be necessary in circumstances where the rule of law is poor, although it can be dispensed with where the rule of law is satisfactory. On the other hand, it notes that investors generally prefer international arbitration. In the African context, this article proposes the use of the African Justice Scoreboard as a gateway to the courts of host states. The scoreboard will ensure that investor-state disputes are only referred to the courts of host states that have adequate levels of the rule of law.