Recent hostilities have witnessed the unprecedented involvement of voluntary human shields (VHS). As international humanitarian law (IHL) stands at the moment, VHS find themselves in the theatre of war without authorisation to participate in hostilities and accordingly enjoy no special protected status as combatants, non-combatants or civilian contractors. Current IHL does little but presume that VHS retain their civilian status until a competent tribunal dictates otherwise. I argue here that the status afforded VHS's turns very much on the hotly contested notion of what exactly amounts to impermissible direct participation in hostilities. This notion of direct participation is informed to a large extent by the sites (military, civilian or dual use) which the VHS are found to be shielding. I conclude that whatever finding a competent tribunal might reach, IHL law demands that VHS who are captured be treated humanely in accordance with basic fundamental guarantees. Where VHS are found to have been participating directly in hostilities without authorisation, they might be held to account for their unauthorised actions.
Individuals do not have access to WTO law in the same way that they have access to socio-economic rights in South Africa. The US and EU both treat WTO law differently from other international law, and grant limited national application to WTO law. This article analyses the approaches of the courts in these two leading trading blocs, and arguments in favour and against direct effect or national application. It then asks whether WTO law could be used by individuals in South African courts through the interpretation of socio-economic rights.
The integration between the legal systems of different states has led to a shift towards the perspective that international law essentially constitutes cooperation and interdependence between states. In this contribution the changing nature of public international law is discussed against the background of globalisation, global governance, and international constitutionalism. As a result of the changing nature of public international law, state sovereignty is increasingly limited in the interests of the broader international community. The possible development of a world law is directly linked to the limitation of the sovereignty of states. This may simultaneously happen in two ways : on the one hand states may deliberately consent to rules that limit their sovereignty by concluding treaties on wide range of subjects. On the other hand, such rules develop irrespective of the consent of states, mainly through jus cogens norms and obligations erga omnes. Depending on the extent to which these rules place limitations on the sovereignty of states, they may or may not be viewed as part of an emerging world law.
The establishment of a three-tier international human rights system by nation states which entails the promotion and protection of human rights on the international, regional and municipal levels, has spawned the development of an elaborate hierarchy of legal instruments; institutions and norms. The nature and content of the relations between these three tiers is not as self-evident as may be implied by the hierarchy created as nation states are central to the functioning at all three levels. This article explores the structural relations between African and European human rights systems and their member states respectively via the principle of subsidiarity, which Carozza asserts is an implicit structural principle in international human rights systems. The article will show how this principle has manifested in the European system before analysing the African system to demonstrate that the very structure of the African system is also based on the principle. It shall also be shown that, in spite of this, the African Commission has failed to apply the tenets of the principle in its adjudication. This has led to undesirable and unforeseen consequences. Finally, the article calls for an explicit recognition of the importance and role of subsidiarity in the African system.
Motivated by the concern of creating an unwarranted monopoly, recent decisions in Europe and South Africa have imported certain restrictions into the current trade-mark infringement provisions. These restrictions are intended to limit the infringement rights of trade-mark proprietors. This is particularly evident from the definition of infringing use adopted by the courts. This article compares the approaches adopted in Europe and South Africa. Like the British House of Lords, the South African Supreme Court of Appeal has adopted a narrow traditional approach in defining infringing use which is at variance with European jurisprudence and the TRIPS Agreement. Also in line with developments in the United Kingdom, onerous requirements for establishing trade-mark dilution have been imposed.
Environmental governance is an essential facet of the entire environmental law effort in South Africa. Fragmentation of the environmental governance regime is however a concern in the country. Fragmentation is patent in the various structures and institutions, environmental Acts and authorisation processes. This leads to unsustainable and ineffective governance. Similarly, the Netherlands experienced fragmentation of its environmental governance regime with various challenges essentially resembling those of South Africa. Various integration reforms were initiated in the Netherlands by way of the National Environmental Management Act, 1993. This Act is based on the Integrated Pollution Prevention and Control Directive, 1996, of the European Union which provides a broad framework for a more integrated environmental governance effort by establishing integrated authorities and other institutions, integrated procedures, integrated legislation, and by utilising various other innovative mechanisms to achieve more streamlined and sustainable governance. This article distils a number of these integration mechanisms from the European approach and suggests that these integration reforms should be implemented as a matter of urgency to achieve a more sustainable environmental governance effort at domestic level.
Legal aid to indigent persons is increasingly being recognised as fundamental to the realisation of access to justice for the most vulnerable in society. The Constitution of Botswana, whilst guaranteeing fundamental human rights and making provision for their enforcement, does not put an obligation on the state to provide the necessary financial help, if need be, to enforce them. Consequently, these rights are rendered nugatory to most Batswana who lack the financial strength to access legal services in order to uphold and vindicate these rights. Despite a clear need for the establishment of a legal aid scheme in Botswana, no concerted attempt has so far been made towards its establishment. This article puts the case for the establishment and proposes a possible a legal framework.