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- Volume 26, Issue 2, 2010
South African Journal on Human Rights - Volume 26, Issue 2, 2010
Volume 26, Issue 2, 2010
Source: South African Journal on Human Rights 26, pp 179 –181 (2010)More Less
This edition of the South African Journal on Human Rights is dedicated to one of its founders, and South Africa's leading human rights and international law scholar, Professor John Dugard. Its dual themes of 'human rights and social justice in South Africa' and 'international law' reflect Dugard's character as both irretrievably South African and intensely international in his way of thinking and his work.
Keynote address : a tribute to John Dugard - teacher, academic colleague, outstanding jurist and friendAuthor Carole LewisSource: South African Journal on Human Rights 26, pp 182 –187 (2010)More Less
John Dugard needs no introduction. So why do I stand here? I have been thinking about that for some weeks, and have concluded that it is not to introduce John but to pay tribute to him, as a teacher, an academic colleague, an outstanding jurist and a friend. John, over some 50 years, has had an enormous impact in South Africa and internationally in the field of international law, and just as great an impact, in South Africa and elsewhere, in bringing human rights to the fore.
Source: South African Journal on Human Rights 26, pp 188 –216 (2010)More Less
John Dugard's courageous inaugural lecture drew on American realism, modern natural law and South Africa's liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law - especially under apartheid - this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another.
Law under stress : the struggle against apartheid in South Africa, 1980-94, and the defence of legality in the United States after 9/11Author Richard L. AbelSource: South African Journal on Human Rights 26, pp 217 –245 (2010)More Less
Law proved a surprisingly powerful instrument in the last years of the struggle against apartheid. It has been a disappointingly weak shield against abuses of power by the US government in its 'war on terror' since 11 September 2001. This article begins a comparison of these two contrasting experiences.
Author Vera Gowlland-DebbasSource: South African Journal on Human Rights 26, pp 246 –271 (2010)More Less
This article reviews Professor John Dugard's contribution as Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories, aiming to show how a sound international law analysis is essential for an understanding of the problem of Palestine and for countering efforts to shift perceptions from one of occupation in which the occupying power has legal and moral constraints to one of a state of belligerency in the context of a 'war on terror'. John Dugard's constantly reiterated position that Palestine is a matter of concern for the international community as a whole then leads to an examination of the international status of Palestine and to the responsibility of the United Nations, as well as that of all states, flowing from the erga omnes obligations and peremptory norms involved. This is done in light of the International Court of Justice's quasi-unanimous Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory handed down in 2004 in which the Court has demonstrated how the political aspects of the Palestinian problem are tightly intertwined with its legal dimension.
Author Mia SwartSource: South African Journal on Human Rights 26, pp 272 –291 (2010)More Less
This article explores the relationship between John Dugard and Gustav Radbruch. Drawing on the legal philosophy of Gustav Radbruch and John Dugard's work on international criminal law the article addresses the complex question of whether retroactive punishment is legally and morally justifiable. The article discusses Dugard's views on the question of retroactivity in three contexts: firstly, in his opinion on the legality of extraterritorial prosecution of torture in the Bouterse case; secondly, through his criticism of the Constitutional Court's decision in Azapo; and thirdly, by his support for ius cogens norms as expressed in his separate opinion in the Congo v Rwanda decision. The article concludes that Dugard's support for retroactive punishment in the specific context of serious international crimes is another example of his lifelong dedication to 'higher law' and his faith in the normative evolution of international law.
Author Max Du PlessisSource: South African Journal on Human Rights 26, pp 292 –309 (2010)More Less
This article focuses on John Dugard's important and continuing work done in the ongoing struggle for international human rights. It considers two apparently unrelated areas of Dugard's work. The first is his contribution to the field of diplomatic protection; the second is his work in the field of international criminal law. The author demonstrates that they are indeed related, at least insofar as they are both fields in which Professor Dugard's real concern - a concern for the rights of the individual - is on open display. They are also both fields in which Professor Dugard has excelled - indeed led - at an international level with work in Geneva, Cambridge and Leiden. The article demonstrates how, in both the fields of diplomatic protection and international criminal justice, Professor Dugard's work has most appropriately come to resonate at a professional and personal level back home in South Africa.
Author Edwin CameronSource: South African Journal on Human Rights 26, pp 310 –319 (2010)More Less
John Dugard became a professor of law at the University of the Witwatersrand (Wits) School of Law exactly four decades ago, in 1969. It was a brave appointment - an academic lawyer of unflinchingly liberal commitment at a time of acute illiberal oppression. It was a promotion that was to garner Wits no favour with the authorities, for Dugard soon showed that his concept of professorial research did not involve quietly burrowing away in the Wits law library.
Author Marinus WiechersSource: South African Journal on Human Rights 26, pp 320 –325 (2010)More Less
Namibia became independent on 21 March 1990. The story of the Namibian struggle for independence, which stretched over seven decades, belongs to the past and will, of course, always be of immense historical interest. For purposes of this note, historical data will only be brought in, as far as it relates to the South West Africa cases.
Source: South African Journal on Human Rights 26, pp 326 –353 (2010)More Less
The first day of the conference was dedicated to John Dugard's work and legacy in human rights law in South Africa. This day addressed John's extensive academic contributions, as well as his more practical and strategic interventions in relation to human rights advocacy and litigation. One of the highlights of the day was a panel of past and present human rights lawyers and advocates, all of whom had had been influenced and inspired by John both directly and indirectly. Gilbert Marcus and Halton Cheadle both worked at the Centre for Applied Legal Studies (CALS), founded by John Dugard at the Wits School of Law in 1978. Jody Kollapen, outgoing chairperson of the SA Human Rights Commission, met John as a young law student. Their contributions attest to John's enormous influence on anti-apartheid legal work in the 1980s and beyond. Fatima Hassan, Stuart Wilson and Jackie Dugard all worked at CALS after John's departure in 1979, and speak to its continuing tradition of human rights work, and John's legacy. The panel was chaired by Dennis Davis, who succeeded John Dugard as CALS director in 1979.
Word of tribute to Professor John Dugard by Professor Nico Schrijver, his successor at Leiden University : tributeAuthor Nico SchrijverSource: South African Journal on Human Rights 26, pp 354 –355 (2010)More Less
Author Doron IsaacsSource: South African Journal on Human Rights 26, pp 356 –385 (2010)More Less
Despite a crisis of inequality in education and the formidable socio-economic rights jurisprudence of our Constitutional Court, not a single case has yet come before the Court based squarely on the right to a basic education.
The long history of litigating for education and equality in the United States, where educational disadvantage has played itself out in ways remarkably akin to contemporary South Africa, is instructive. The retreat woven by the federal judiciary subsequent to the landmark case of Brown v Board of Education, in which strategies against de facto segregation have been severely circumscribed, has led to innovation in the state courts, under state constitutions that enshrine a right to education. Rose v Council for Better Education, in which the Kentucky Supreme Court declared the state's entire school system unconstitutional, shows that when a social movement builds moral consensus it can pave the way for systemic change to be brought about by courts. Fundamental to the outcome of that case was the active involvement of local teachers, learners and other ordinary citizens in devising and campaigning for particular standards of educational reform.
Similarly, the cases of Grootboom, Treatment Action Campaign, Mazibuko and Joe Slovo make clear, in their different ways, that firstly, a finding of constitutional breach is frail unless harnessed to a practicable and appropriate remedy, and secondly, that social justice litigation operates best as part of a broader strategy of mobilisation and organised mass-based activism, before, during and after the court process.
The formulation of creative remedies is increasingly important. This is referred to in the United States as the 'non-court-centric remedy' and in South Africa as 'meaningful engagement'. Particularly in cases where there is widespread activism and public participation, courts are able to formalise standards that have been devised by civil society, making the body politic itself central to the enforcement of judgments.
Judicial immunity, compensation for unlawful detention and the elusive self-executing treaty provision : Claassen v Minister of Justice and Constitutional Development 2010 (6) SA 399 (WCC) : notes and commentsAuthor Magnus KillanderSource: South African Journal on Human Rights 26, pp 386 –394 (2010)More Less
The issue in Claassen v Minister of Justice and Constitutional Development, was 'whether a remedy in damages should be extended in a case in which a person is detained unlawfully as a consequence of the negligently made order by a magistrate acting outside the authority of the law'. The Court noted that the Constitutional Court in Zealand had held the minister vicariously liable for the inaction of a court registrar causing the detention of Mr Zealand 'as a sentenced prisoner for some years'. According to the High Court the Claassen case should be distinguished from Zealand in that the magistrate had judicial immunity. The Court held that the common law doctrine of judicial immunity was not contrary to the Bill of Rights.
Women, Islam and International Law within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women, Ekaterina Yahyaoui Krivenko : book reviewAuthor Wesahl DomingoSource: South African Journal on Human Rights 26, pp 395 –397 (2010)More Less
In Algeria, three feminists were arrested and jailed without trial, then kept incommunicado for seven months. Their crime was having discussed with other women the government's proposal to introduce a new set of laws on the family (Code de la Familie) that severely reduced women's rights in this field. In India, a Muslim woman filed a petition to the Supreme Court arguing that the application of religious minority law denied her rights otherwise guaranteed to all citizens under the Constitution of India. In Abu Dhabi, for the alleged crime of adultery a pregnant woman was sentenced to be stoned to death two months after giving birth.
Due to incidences such as the above, there are a plethora of books and articles dealing with the tension that exists between Islam, women and international law. Ekaterina Yahyaoui Krivenko's Women, Islam and International Law within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women is a rigorous and relevant contribution to this debate. She focuses on Muslim women's human rights within the context of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Her aim is to engage all the CEDAW role players (women, lawyers, committees and states) to secure women's human rights in countries with reservations to the CEDAW based on Islam.
The Origins of African-American Interests in International Law, Henry J. Richardson III : book reviewAuthor Jeremy TelmanSource: South African Journal on Human Rights 26, pp 397 –401 (2010)More Less
Professor Richardson's work makes important contributions on two fronts. It is a sophisticated work of both historical scholarship and critical race theory.
As historical scholarship, The Origins of the African-American Interests in International Law is a synthetic work, drawing on diverse historical sources to recount a detailed narrative of African-American claims to, interests in, and appeals to international law over approximately two centuries spanning, with occasional peeks, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of Ghent, ending the war of 1812 between Britain and the United States. Regarded as such, the book is richly rewarding. Professor Richardson excavates historical source material for evidence of the claims made by people of African heritage for freedom, human dignity and self-determination. These claims were variously expressed throughout the period of the Atlantic slave trade and the enslavement of people of African heritage in the Americas, often through conduct and other means might escape a more traditional historian's gaze. Richardson gives voice to these claims as interests in international law, even if they were not always conceived of as such by their authors and even if international law - in the imperfect form in which it existed at the time - did not recognise the justiciability of the claims.