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- Volume 48, Issue 1, 2015
Comparative and International Law Journal of Southern Africa - Volume 48, Issue 1, 2015
Volumes & issues
Volume 48, Issue 1, 2015
Author Nina MollemaSource: Comparative and International Law Journal of Southern Africa 48, pp 1 –41 (2015)More Less
Human trafficking is a high-profile issue in the United States (US). The country is regarded as a leader in combating trafficking in persons and its efforts are viewed as revolutionary. The crime of trafficking is tackled on a federal as well as state level in a multi-disciplinary manner and with a coordinated, integrated and sustained approach. Legislation such as the Victims of Trafficking, and Violence Protection Act of 2000 (TVPA) and its reauthorisations has contributed tremendously to fight sex- and labour trafficking. South Africa (SA) has enacted the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (TIP Act) on 29 July 2013. However, the legislation is as yet not fully implemented. Because of its slow response to introduce legislation to criminalise the conduct, South Africa has had the unique opportunity to learn from the errors of other countries that may have responded too hastily to the United Nations' Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol). Although the Act draws from international-best practices and is also modelled on the TVPA, it is still lacking in certain aspects when compared to the US's efforts in abolishing human trafficking. This article will elucidate the anti-trafficking legal framework of the US as exemplar for the newly-enacted SA TIP Act. In a brief comparison, the merits as well as the shortcomings in the TIP Act will also be highlighted.
Climate change negotiations and transitional justice : the advent of a Carbon Truth and Reconciliation Commission?Source: Comparative and International Law Journal of Southern Africa 48, pp 42 –58 (2015)More Less
Developing states, such as India and China, are reluctant to depart from their hard-lined stance on the common but differentiated responsibilities and respective capabilities principle. They want to ensure that the historical responsibility of the developed world is addressed. The developed world is, however, reluctant to acknowledge its historical responsibility. At the core of this deadlock seems to be a lack of trust between parties. The current atmosphere of distrust amongst parties in the climate change negotiations may provide fertile ground for the application of transitional justice (TJ) mechanisms. TJ is well suited for a divisive environment, which is burdened with historical events that hamper further progress. This article investigates whether TJ models may be conducive to further progress in the climate change negotiations. Hence, the discussion focuses on a brief introduction of the notion of TJ; whereafter Truth Commissions are discussed in greater detail. The feasibility of an International Truth Commission concerning historical greenhouse gas emissions then receives attention. The authors conclude that the transposition of the Truth Commission model to the current casus will be problematic and that it is probable that the establishment of an 'International Carbon Truth Commission' will merely undermine climate change negotiations. However, the authors suggest that TJ offers lessons for climate change negotiators and that it is necessary to pursue elements of TJ through current climate change negotiations.
Whaling in the Antarctic (Australia v Japan : New Zealand intervening) : progressive judgment or missed opportunity for the development of international environmental law?Author Michaela YoungSource: Comparative and International Law Journal of Southern Africa 48, pp 59 –88 (2015)More Less
This article explains and analyses the judgment of the International Court of Justice (ICJ) in the dispute between Australia and Japan regarding the latter country's whaling operations in the Southern Ocean under the International Convention for the Regulation of Whaling (ICRW). The primary objective is to investigate the broader implications of the judgment for the development of international law as this case presented the ICJ with an opportunity to provide guidance on several issues of importance for the future direction and development of international environmental law. In particular, this article focuses on the ICJ's approach towards arguments raised by the parties regarding the evolution of the ICRW and the role of precaution; as well as the novel standard of review adopted by the ICJ in interrogating state conduct.
Female adolescents' evolving capacities in relation to their right to access contraceptive information and services : a comparative study of South Africa and NigeriaSource: Comparative and International Law Journal of Southern Africa 48, pp 98 –123 (2015)More Less
Adolescents' early sexual debut contributes to their huge burden of sexual and reproductive ill-health, especially in sub-Saharan African countries. Reports continually reveal that adolescents in general, and female adolescents in particular, constitute a large portion of the 34 million people living with HIV worldwide. Other consequences associated with early adolescent sexuality include unplanned pregnancies, unsafe abortions, and sexually-transmitted infections. Whilst international human rights instruments and national legislation recognise the importance of considering the adolescent child's evolving capacities, this becomes contentious when adolescents' access to contraceptive information and services and other sexual and reproductive health issues are involved. The article examines Nigeria's and South Africa's national legislation regarding adolescent girls' right to independently access and consent to confidential contraceptive information and services in accordance with the recognition of their evolving capacities provided for under international human rights law. We argue that a major impediment to adolescent girls' contraceptive use relates to the assumption that they are incapable of making rational decisions or of consenting to sexual and reproductive health care services without parental Involvement. The article concludes that allowing adolescent girls to consent independently, especially when accessing contraceptive information and services, is a necessary step in achieving increased adolescent contraceptive use, so affirming their evolving capacity in decision-making.
Children born out of wedlock and their right to inherit from their fathers under customary law in Botswana - Baone Kealeboga & Anor v Tidimalo Mercy Kehumile & AnorSource: Comparative and International Law Journal of Southern Africa 48, pp 98 –97 (2015)More Less
For centuries, children born out of wedlock have been subjected to many forms of discrimination under customary law in Botswana. One such example is succession, whereby a child born out of wedlock is prohibited from inheriting from or through its father. This discrimination had adverse implications on such children's rights to equality, non-discrimination and dignity. The aim of this comment is to discuss and appraise the judgment of the Court of Appeal of Botswana in Baone Kealeboga & Anor v Tidimalo Mercy Kehumile & Anor which abrogated the customary law rule that a child born out of wedlock cannot succeed its father ab intestate. The gist of this comment is that the court's decision in this case is ground-breaking in that it recognises and affirms (for the first time in Botswana) that children born out of wedlock are equal to, and worthy of the same respect and consideration as those born in wedlock.
Author John C. MubangiziSource: Comparative and International Law Journal of Southern Africa 48, pp 124 –143 (2015)More Less
At its 52nd Ordinary Session in October 2012, the African Commission on Human and Peoples' Rights presented an award to the Uganda Human Rights Commission for being the best National Human Rights Institution (NHRI) in Africa. This was in recognition of its contribution towards the protection and promotion of human rights. The South African Human Rights Commission came in a close second in this category. The recognition of these two NHRIs as the 'best' in Africa does not necessarily take into account the various differences between them. The purpose of this paper is to assess and reflect on the mandates and functioning of the two NHRIs. The assessment helps to determine the attributes, achievements, strengths, opportunities and challenges of the two institutions - which other NHRIs might learn from. The South African and Ugandan NHRIs are compared against the backdrop of the social, economic, political and historical contexts of the two countries in which they exist. The different challenges and dynamics that these two NHRIs face are discussed, as is how they have affected the realisation of their constitutional and legislative mandates in different ways. It is concluded that despite the challenges, the two NHRIs have achieved and realised some of their mandates in varying degrees and can nevertheless learn from each other's successes and failures - although their relative effectiveness is difficult to determine.
Author Michelle BarnardSource: Comparative and International Law Journal of Southern Africa 48, pp 144 –161 (2015)More Less
The relationship between international and domestic law is traditionally viewed through the lens of the monist/dualist dichotomy. While monists view international and domestic law as two sides of the same coin and therefore see no need for the reception of international law into national law, dualists hold the opposite viewpoint. The monist and dualist schools rely on their construction of the relationship between international and domestic law to prescribe how/how not reception should take place. Interestingly, neither of the two schools pays much attention to the role the nature of the international law to be received should play in how the reception of such law takes place. It is the main aim of this article to investigate whether the nature of international law should influence how it is received into domestic legal systems at the African Union level.