In this contribution the impact of treaty reservations on the establishment of an international human rights regime is analysed in view of factors such as the particular status of human rights treaties in public international law, the relevant provisions of the Vienna Convention on the Law of Treaties, the comments of the Human Rights Committee of the United Nations concerning reservations to human rights treaties, the findings of the European Court of Human Rights and the International Court of Justice on reservations to treaties, the responses of individual states to these comments and findings, and the viewpoints of authors dealing with the different aspects of the theme under discussion. As part of the analysis reference is also made to the impact of reservations on the foundations of treaty law, namely the principle of free consent in view of the discussion on the universality and relativity of human rights, the principle of good faith as it relates to the negotiation, interpretation and performance of treaties, and the pacta sunt servanda rule. In conclusion a number of suggestions are made concerning the problems that result from entering reservations to human rights treaties.
This article explores the international law obligations that prohibit torture so to investigate the variety of so-called 'torture-lite' techniques often used during interrogation. More particularly, it examines the specific obligations that states bound by these sources of law bear, and whether there is any merit in the distinction drawn in some treaties between torture, and cruel, inhumane or degrading treatment. What international tribunals and treaty-monitoring bodies have had to say about these specific 'torture-lite' methods of interrogation, whether they constitute a breach of international legal obligations, and whether these obligations are altered as a result of the location of the conduct is considered. In conclusion I offer some critique of the rationality of the interrogative purpose in light of the reality within the 'wild zone of power', and suggest some thoughts on the way forward for the human rights project of prohibiting torture, in light of what can and does occur in this 'wild zone of power'.
This contribution entails a comparative review or synopsis of the present state of the protection of personality rights. Realistically, this can only be a snapshot of the status quo in various legal systems and is not intended to give a detailed exposition. The aim is to summarise, systemise and to an extent critically reflect on the available literature, as well as to identify particular dogmatic and practical problems. The research results may also stimulate in-depth examination of particular aspects of personality protection. The topics dealt with are the recognition and basis of protection of personality rights, the scope of their protection, the relationship between the general right to personality and specific personality rights, the nature of personality rights and personality harm, the classification of specific personality rights, the distinction between personality rights and certain patrimonial rights, personality rights as human rights, post-mortem personality protection, and the personality rights of juristic persons.
The family group conference, which serves as an important instrument for the protection of children in New Zealand, came into existence as a result of the recognition of Maori values in the legislative process. The Children, Young Persons and Their Families Act 24 of 1989 emphasises family participation in decisions affecting children in need of care or protection. An important objective of the Act is to link the well-being of children to the well-being of their families and family groups. From the definition of 'family group' in the Act, it appears that the emphasis is on the connection with the child (biological, legal, psychological, or by whanau or any other culturally recognised family group). A family group conference, which is convened by a care and protection coordinator, has to be involved in decision-making regarding a child in need of care or protection. Little decision-making can be done without the conference first having been convened and having had the opportunity to find a solution. For various reasons, which are pointed out in the article, the family group conference lacks objectivity and professional expertise. If the family group conference is to play any role in future South African child protection law, it should be in the form of a multidisciplinary forum incorporating both the family (including the child) and professional staff. Mediation should be an integral part of the process.
The issues and problems flowing from common competencies are shared by many, if not all, decentralised and federal systems; they are a feature arising from the division of powers between two levels of government. The problem is particularly pronounced when a third level of government is added - local government. Common competencies are mainly a function of the way local government powers are defined in constitutions. Because of the position of local government in the hierarchy of governments, local government is seldom given clearly demarcated exclusive powers. Moreover, the supervisory role of the 'senior' levels of government over local government, inevitably means that concurrency of powers occurs. Common competencies create a number of problems for the effective and efficient functioning of government. They include the following: duplication of services; ineffective service delivery; unfunded mandates for the lowest level of government; the domination of local government by 'senior' levels of government; and the lack of transparency and accountability. There are basically two approaches in dealing with these problems: first, seek greater division and certainty in the division of powers; and second, develop constructive ways of managing the tension through cooperation between levels of government.
The article examines the question of how the accused's presence facilitates his meaningful participation in the criminal process. Foreign jurisdictions such as the United States of America, Canada, the United Kingdom and decisions of the European Court of Human Rights and the United Nations Human Rights Committee are examined for guidance. The above examination reveals that the accused's presence during criminal proceedings is not absolute. In exceptional circumstances, the accused's presence from the courtroom can be dispensed with. The article recommends the development of adequate legal measures to address competing interests and technological changes without compromising the constitutional rights of the accused. The accused's presence and personal participation in the trial, is fundamental to a 'just and fair' trial.
This article examines and comments on the first case in Botswana which challenged the death penalty on the grounds of the death row phenomenon. It further examines the decisions of the High Court and the Court of Appeal of Botswana in the Kobedi case. It concludes by observing that although the application could be regarded as an opportunity that went begging, both courts in principle accepted that the death row phenomenon may in a proper case violate the prohibition against torture and cruel, inhuman and degrading treatment.
In this contribution the current legal developments in Botswana, Lesotho, Namibia and South Africa with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.