The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation is Necessary

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

The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation is Necessary

Author Sandra Ferreira

ISSN: 2522-3062
Affiliations: BLC LLB LLD. Associate Professor, Department of Private Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 22 – 41

Abstract

The Hague Convention on the Civil Aspects of International Child Abduction was developed to protect children internationally from the harmful effects of their wrongful removal or retention. Its primary objective is to secure the prompt return of children wrongfully removed to, or retained in, any contracting state. Where a parent does not voluntarily agree to the return of the child, litigation usually follows. In South Africa, with its overburdened court rolls, litigation is often drawn-out, and often takes a very long time to finalise. If the swift return of an abducted child is not achieved, it may lead to a situation where the protection envisaged by the Hague Convention is compromised. Mediation, which is already part of the legal framework for family disputes in South Africa, has become increasingly popular in Hague Convention disputes. The aim of this article is to consider mediation, not only as an alternative to litigation in Hague Convention matters in South Africa but as a mandatory requirement.

Exploring the Effectiveness of the Rights-Based Approach to Environmental Governance in Cameroon: What Could be Learned from South Africa?

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

Exploring the Effectiveness of the Rights-Based Approach to Environmental Governance in Cameroon: What Could be Learned from South Africa?

Author Jean-Claude N Ashukem

ISSN: 2522-3062
Affiliations: LLD (NWU), LLM (NWU) Maitrise en Droit (Yaoundé), Licence en Droit (Yaoundé).
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 42 – 74

Abstract

The responsibility of citizens to protect their environment goes beyond mere obligations, and extends to providing and enabling access to relevant environmental information through which they can be informed of the impact of activities on their environmental rights. It also involves the creation of mechanisms for inclusion, openness, and participation where citizens would be involved in processes leading to the protection of their environmental rights. The Constitution of the Republic of Cameroon, 1996, expressly recognises the right of everyone to a healthy environment. However, the Constitution and Law No 96/12 on Environmental Management impose the duty on citizens and not on the state to protect the environment. While provisions on the right to access to information and public participation exist in Cameroon’s legal framework, in practice people do not have access to relevant environmental information and are not given a chance to be involved and to participate fully in environmental decision-making processes. In this light, Cameroon’s legal framework appears inadequate and ineffective, and falls short of ensuring and enhancing environmental governance, when analysed through a rights-based lens. This inadequacy has precluded concerned citizens from exercising their right to a healthy environment. It is a hindrance to the advancement of the country’s environmental governance paradigm and could remain so if not properly and urgently addressed. The author compares the Cameroonian experience to the South African experience in order to draw lessons that Cameroon can benefit from. This is necessary because the legal framework in South Africa is more effective than that of Cameroon.

Unwholesome Prison Blues: A Call to Protect International Prisoners’ Rights and Standardise Conditions of Detention

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

Unwholesome Prison Blues: A Call to Protect International Prisoners’ Rights and Standardise Conditions of Detention

Authors Marc Gevers & Gustav Muller

ISSN: 2522-3062
Affiliations: LLB (University of Pretoria). LLM Student in the Department of Private Law, University of Pretoria; LLB LLD (Stellenbosch University), Diploma (Åbo Akademi). Senior Lecturer in the Department of Private Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 75 – 108

Abstract

With an ever-increasing focus on human rights to deal with violations and atrocities across the world, prisoners and their rights are left by the wayside too often. While deprivation of liberty is expected upon incarceration, prisoners are still entitled to certain basic and universal human rights. Despite this, and despite the international community having a set of standard rules, popular opinion and general vindictive behaviour sees prisoners being stripped of their basic human rights. Not only should these rights be afforded to them based on principles of justice, but if rehabilitation is to be rightly effected, then it is essential that standards for the treatment and conditions of detention of prisoners exist – and that these standards are enforced, and not just suggested. As such, a justice system which reacts to violations is inefficient, and the minimum standards in place, which are more like guidelines, need to be replaced by a proactive system and by mandatory international standards that can be effected in any State despite circumstance or resources. Such will result in a prison system that not only maintains and encourages the humanity in prisoners, allowing them to re-enter society, but also humanises society itself.

Tacit Choice of Law in International Commercial Contracts – The Position in Indonesian, Malaysian and Singaporean Private International Law

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

Tacit Choice of Law in International Commercial Contracts – The Position in Indonesian, Malaysian and Singaporean Private International Law

Author Garth Jody Bouwers

ISSN: 2522-3062
Affiliations: LLB, LLM (UJ). Lecturer, University of Johannesburg; Research Associate: Research Centre for Private International Law in Emerging Countries, University of Johannesburg.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 109 – 125

Abstract

The Association of Southeast Asian Nations (ASEAN) has achieved remarkable economic progress in recent times. Furthermore, intra-ASEAN trade is considerably larger than any other market for the ASEAN Member States. The growth of international trade and commerce within ASEAN is likely to increase. This will undoubtedly create numerous opportunities for private enterprises in the region to conclude business with one another. As such, the need for certainty regarding the rules and principles of private international law within the organisation’s Member States is imperative. This article analyses choice of law in international commercial contracts in three of ASEAN’s biggest economies, namely Indonesia, Malaysia and Singapore. More specifically, the article examines the determination of a tacit choice of law in Indonesian, Malaysian and Singaporean private international law. Attention is devoted to the level of strictness of the criterion for inferring a choice of law and the factors that have been relied upon, as well as the weight that has been attached to these factors.

Low-threshold Fitness Test in South Africa and the USA: Consequences for the Fit but Mentally ill Accused

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

Low-threshold Fitness Test in South Africa and the USA: Consequences for the Fit but Mentally ill Accused

Author Letitia Pienaar

ISSN: 2522-3062
Affiliations: LLB (UJ), LLM (UNISA), LLD (UNISA). Senior Lecturer: Medical Law and Legal Research Methodology, Department of Criminal and Procedural Law, University of South Africa. Admitted attorney of the High Court of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 126 – 142

Abstract

An accused, who is unable to follow the criminal proceedings against him/ her on account of mental illness or intellectual disability, could be found unfit to stand trial. Whether the individual is indeed unfit is determined by the fitness test employed in the particular jurisdiction. This article considers the fitness tests employed in South Africa and the United States of America and points out the similarities and differences between them. The threshold for fitness in both these jurisdictions is low, resulting in the majority of accused persons sent for fitness assessments being found fit to stand trial. Amongst these accused are persons with serious mental illness. The article considers the impact of such a low threshold test on the fit but mentally ill accused and considers a therapeutic response to this category of accused persons.

Book Review: Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

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

Book Review: Regional Developmentalism through Law: Establishing an African Economic Community, Jonathan Bashi Rudahindwa, Routledge, 2018

Author Babatunde Fagbayibo

ISSN: 2522-3062
Affiliations: LLB (Unisa) LLM, LLD (Pretoria), Associate Professor of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 143 – 145

Abstract

None.

An Evaluation of the Legal Framework for Redressing Sexual Violence in the Boko Haram Insurgency in Nigeria: Challenges and the Way Forward

by | May 30, 2021 | SLR, SLR V32 I1

An Evaluation of the Legal Framework for Redressing Sexual Violence in the Boko Haram Insurgency in Nigeria: Challenges and the Way Forward

Author: Anita Nwotite

ISSN: 1996-2193
Affiliations: BL LLB LLM, Lecturer, Faculty of Law, Nnamdi Azikiwe University, Nigeria
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 169 – 182
https://doi.org/10.47348/SLR/v32/i1a8

Abstract

Sexual violence is one of the human rights violations characterising the Boko Haram insurgency in Nigeria. These violations include rape, sexual slavery and the abduction of women and girls by members of the insurgent group. Unfortunately, the emphasis has always been on the provision of humanitarian aid rather than redressing these violations. This article argues that although there are laws in place regulating sexual violence in Nigeria, these laws are inadequate in providing redress for the victims. Besides, the laws are rarely implemented to ensure a system of justice for victims, given the patriarchal and cultural antecedents of Nigeria. It is against this background that the article evaluates the legal framework for redressing sexual violence in the Boko Haram insurgency in Nigeria with a view to revealing the gap that exists therein. To achieve this aim, the article defines sexual violence and instances of such in the Boko Haram context. It also examines the legal framework for redressing sexual violence in Nigeria and the limitations of these laws in that regard. The article further considers the concept of redress and what it entails. Although the article adopts a legal approach, it is concluded that this approach is inadequate in addressing the issue at stake and that, in addition, a resort to extra-legal or other radical measures is needed. To address this challenge, the article among other things, recommends the eradication of cultural practices and negative values encouraging sexual violence; stipulation of a timeframe within which cases of sexual violence must be redressed; the appointment of an independent monitoring body to ensure the implementation of constitutional provisions in that regard; judicial independence; and advocacy by both civil society organisations and the media as tools to compel the relevant authorities to fulfil their responsibility to protect victims of sexual violence. This, it is submitted, will go a long way to address the vulnerability of Nigerian women and girls faced with sexual violence by insurgent groups.

The Unreported War: Tackling Denialism and Social Stigma towards Victims of Armed Conflict-Related Sexual and Gender-Based Violence

by | May 30, 2021 | SLR, SLR V32 I1

The Unreported War: Tackling Denialism and Social Stigma towards Victims of Armed Conflict-Related Sexual and Gender-Based Violence

Author: Ropafadzo Maphosa

ISSN: 1996-2193
Affiliations: LLB LLM (cum laude), Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a centre of the University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 155 – 168
https://doi.org/10.47348/SLR/v32/i1a7

Abstract

In addressing the United Nations Security Council at its 7938th meeting, the Special Adviser on the Prevention of Genocide, Adama Dieng, said that the social stigma attached to sexual violence is integral to the logic of using sexual violence as a tactic, a method of war or even torture. The perpetrators of sexual crimes understand that sexual violence attacks one’s individual and collective identity and ostracises survivors, thus untying the strings of family and kinship that hold the very fabric of communities together. As a result, survivors of gender-based and sexual violence often find it difficult to cope with its social repercussions. This article will pursue a detailed discussion pertaining to the severe stigma suffered by survivors of conflict-related sexual violence and how this issue is not adequately addressed in international law. The risk faced by survivors is threefold: first by the action of the perpetrator, then by the reaction of society through stereotypical and patriarchal attitudes, and finally by the courts, which often are not only unresponsive but also perpetuate negative social norms and rape myths leading to double persecution. Due to a lack of evidence and other factors, such as patriarchy and social inequalities, the stigma associated with conflict-related sexual violence is manifested in court rooms through various rape myths about its survivors. Sexual violence is a gendered phenomenon, in that it is often linked to, and stems from, harmful social and traditional practices relating to perceptions of gender and power dynamics surrounding them. In times of conflict, prevalent power dynamics, and the practices linked to them, can be further exacerbated leading to a higher prevalence of sexual violence. Therefore, the core argument advanced in this article is the necessity of combatting stigma and rape myths, and to promote the reporting of sexual crimes by and access to justice for survivors.

The Collective Responsibility of Organised Armed Groups for Sexual and Gender-Based Violence during a Non-International Armed Conflict

by | May 30, 2021 | SLR, SLR V32 I1

The Collective Responsibility of Organised Armed Groups for Sexual and Gender-Based Violence during a Non-International Armed Conflict

Authors: Martha M Bradley & Aniel de Beer

ISSN: 1996-2193
Affiliations: LLB, LLM, LLD (UP), LLM (UCT), Lecturer, Department of Public Law, University of Pretoria. External Expert: Department of International and European Law, Centre for International Humanitarian and Operational Law, Palacký University, Olomouc, Czech Republic; BProc, MBA, LLM, LLD (UP), LLB (Stell), extraordinary lecturer, Department of Public Law, University of Pretoria. External Expert: Department of International and European Law, Centre for International Humanitarian and Operational Law, Palacký University, Olomouc, Czech Republic
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 129 – 154
https://doi.org/10.47348/SLR/v32/i1a6

Abstract

This contribution considers a possible legal framework for holding organised armed groups (“OAGs”) collectively responsible for acts of sexual and gender-based violence (“SGBV”) during non-international armed conflicts. It argues that a framework providing for collective as opposed to individual criminal responsibility of OAGs is essential. Certain sections of the Articles on the Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility” or “ASR”) are used as a blueprint for achieving such a framework. In this regard, the concepts of international legal responsibility of OAGs, internationally wrongful acts and attribution are analysed in the context of crimes committed by OAGs. In conclusion, the article proposes future research in order to advance the prospect of collective claims and collective compensation for victims of SGBV.

The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

by | May 30, 2021 | SLR, SLR V32 I1

The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

Authors: Ronald Kakungulu-Mayambala, Rukundo Solomon, Victor Phillip Makmot & Diana Rutabingwa

ISSN: 1996-2193
Affiliations: LLB (Hons) (Mak), Dip LP (LDC), LLM (Fordham), SJD (Arizona), Associate Professor, School of Law, Makerere University; LLB (Hons) (UDSM), Dip LP (LDC), Associate Researcher, Mawazo Policy Research Centre; LLB (Hons) (Mak), Dip LP (LDC) Associate, Kirunda & Wesige Advocates; LLB (TUoN), LLM (Lond), MSC (Ebor), Senior Governance and Human Rights Advisor, Deutsche Gesellschaft für Internationale Zusammenarbeit
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 93 – 128
https://doi.org/10.47348/SLR/v32/i1a5

Abstract

The distribution of sexually graphic or intimate images of individuals on the internet without their consent is on the rise in Uganda. Several female celebrities and lesser-known individuals have fallen victim to this phenomenon in recent years. This article examines the civil and criminal remedies currently available to the victims. The article argues that these remedies are insufficient to deal with the challenge posed by the non-consensual distribution of these intimate images in the online environment and argues for the creation of a new law that specifically addresses this issue.