In the last few decades international law has been faced with the process of proliferation and specialisation of its primary norms (directed to the regulation of more and more complex international relations), as well as with the proliferation of secondary norms and international bodies directed to the interpretation and application of these primary norms.
Being aware of such a process, the International Law Commission (ILC) at its fifty-second session in 2000 decided to include this 'syndrome', already called the 'fragmentation of international law', in its long-term programme of work. Two years later, at its fifty-fourth session (2002) the commission included the topic in its programme of work and determined that it should be carried out during the quinquennium 2003-2006.
Starting from the recent works of the International Law Commission from 2004 to 2005, this article deals with the problem of 'substantive' fragmentation of international law in the sense of the proliferation of, not only international primary and secondary norms, but also international legal subsystems including self-contained regimes of international law (eg diplomatic law, EC / EU law, human rights law) analysing at the same time their relation to the international legal system as a whole.
Finally, the paper analyses the phenomenon of fragmentation in the light of principles of legal logic trying to give an answer to the question of the place of such a phenomenon in the development of international law.
The conflict of Western and indigenous values again came to the fore in a series of cases dealing with death and burial in indigenous society. A similar conflict has been experienced in cases dealing with the rights of American Indians, as non-owners, to sacred sites situated on land belonging to the Federal Government or on private land. In these cases the American courts have invariably found in favour of the property rights of the owners. Prior to the amendment of the Extension of Security of Tenure Act, our courts have, like their American counterparts, followed an almost absolutist view of the property rights of the landowners when balanced against the religious rights of indigenous peoples. The Act was amended to include a right to bury family members on land belonging to another. The amended legislation improved the rights of non-owners, but still did not provide sufficient protection of indigenous values. It still gives preference to the rights of land owners. The sections affording the right to bury have internal limitations, which means that in some instances the right to bury may be negated. The recent decisions in Nhlabathi and Others v Fick and Dlamini and Another v Joosten and Others evidence a move towards greater sensitivity for indigenous cultural values.
Following the peaceful Rose Revolution in November 2003, the Republic of Georgia has become an emerging and developing democracy, seeking to strengthen its political and economic ties to Western Europe and the United States. With these new objectives have come new pressures and requirements to improve human rights and political freedom in Georgia, particularly in the effort to eliminate torture as a means of extracting confessions from pre-trial detainees. In the context of the international laws and agreements against torture, this Article discusses the Georgian model of anti-torture reform, illustrating the deep distrust Georgians have of their law enforcement officials and outlining the international community's criticism of the new government's commitment to combat torture and abuse in detention facilities. Drawing on his experience in assisting the Georgian government in drafting legislation and implementing reform of the criminal justice system in Georgia, Jason D. Reichelt sets forth a series of practical recommendations for further reform to not only advance the cause of eliminating torture in Georgia, but assist in the creation of a more fair, just, and transparent criminal justice system, ultimately concluding that the Republic of Georgia may soon become a model for emerging democracies everywhere in the fight against torture.
Globalisation commands shifts in the theoretical, doctrinal and methodological bases of choice of law. The challenges of globalisation also prompt active searches for a new conceptual structure and paradigm. New and emerging choice of law problems require a unified foundation based on true neutrality. This implies a re-alignment of theory, doctrine, premises, direction, goals and method. The choice of law reforms and revolutions of previous eras brought valuable insights, but the clues left in their wake are yet to be unravelled in the interest of steady progress.
In the last decade important developments to extend the protection of qualified privilege to false defamatory mass-media publications, based mainly on constitutional guarantees of freedom of expression or speech and of the press, have taken place in Australian, New Zealand and English law. In Australia and New Zealand the protection has been expanded to information about political matters only, though not to the same extent, while English law preferred a broader approach encompassing all (also political) matters of public interest to the community. These developments also had a marked influence on South African law. In this country two significant judgments of the Supreme Court of Appeal recognised both the reasonable publication of defamatory untruth generally, and the reasonable publication of defamatory untrue political speech as separate, new defences. The purpose of this discussion is to evaluate the merits of these two decisions against the background of the developments in Australia, New Zealand and England.
The 1972 World Heritage Convention describes listed sites as the 'world heritage of mankind as a whole', a component of the more generally referred to international law concept of the 'common heritage of humankind'. This article considers the contemporary status of this concept and argues that its constituent principles continue to provide a basis upon which a more comprehensive international law regime might be constructed to protect the world's cultural heritage.
There is general consensus that judicial management, South Africa's statutory corporate rescue procedure, must either be reformed or replaced because it is not functioning properly. However, there is no consensus on the specific statute in which a revamped rescue procedure should be contained - within an Insolvency Act, a Companies Act, or an entirely separate Act. This article examines the various possibilities and the consequences that the choice of legislation in which to house a rescue procedure, may have. A number of other legal systems are compared to establish where their business rescue procedures are located and whether one of these jurisdictions offers a solution to the dilemma facing South Africa.