Magister Legum - LLM / Sitting head of state immunity for crimes under international law has been a very controversial issue in recent times. On the one hand, the debate bears that personal immunity has been renounced for crimes under international law. On the other hand, the advocates of personal immunity claim that the principle of immunity is still persisting under customary International law. Although the International Criminal Court (ICC) is a treaty based court, it is able to extend its jurisdiction to non-state parties to the Rome Statute through a referral by the United Nations Security Council. Lacking its own enforcement body the ICC relies on the cooperation of other states for arrest and surrender of those it indicts. The extension of the court's jurisdiction to non-state parties, such as the case of Sudanese President Omar Al Bashir, has led to the reluctance of state parties to the Rome Statue to effect arrest and surrender citing a 'dilemma between two conflicting obligations'. This paper analyses the legal status of personal immunity before different fora such as International tribunals, foreign domestic courts and under customary international law. It also critically examines the legal basis for the alleged conflicting obligations of state parties. The paper at the end concludes that there is no conflicting obligation for states parties to fully co-operate with the ICC and the lack of co-operation in the arrest and surrender of a sitting head of state is inconsistent with international law particularly with United Nation Charter and the Rome Statute. / German Academic Exchange Service (DAAD)

The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.

This study analyses the relationship between the chieftainship institution and the elected councils in Lesotho. Based on a qualitative case study method the study seeks to understand this relationship in four selected councils in the Maseru district and how this can be nurtured to achieve a consolidated democracy. Contrary to modernists‟ arguments (that indigenous African political institutions, of which the chieftainship is part, are incompatible with liberal democracy since they are, inter alia, hereditary, they compete with their elective counterparts for political power, they threaten the democratic consolidation process, and they are irrelevant to democratising African systems), this study finds that these arguments are misplaced. Instead, chieftainship is not incompatible with liberal democracy per se. It supports the democratisation process (if the governing parties pursue friendly and accommodative policies to it) but uses its political agency in reaction to the policies of ruling parties to protect its survival interests, whether or not this undermines democratic consolidation process. The chieftainship has also acted to defend democracy when the governing party abuses its political power to undermine democratic rule. It performs important functions in the country. Thus, it is still viewed by the country‟s political leadership, academics, civil society, and councillors as legitimate and highly relevant to the Lesotho‟s contemporary political system. Because of the inadequacies of the government policies and the ambiguous chieftainship-councils integration model, which tend to marginalise the chieftainship and threaten its survival, its relationship with the councils was initially characterised by conflict. However, this relationship has improved, due to the innovative actions taken not by the central government, but by the individual Councils and chiefs themselves, thus increasing the prospects for democratic consolidation. I argue for and recommend the adoption in Lesotho of appropriate variants of the mixed government model to integrate the chieftainship with the elected councils, based on the re-contextualised and re-territorialised conception and practice of democracy, which eschews its universalistic EuroAmerican version adopted by the LCD government, but recognises and preserves the chieftainship as an integral part of the Basotho society, the embodiment of its culture, history, national identity and nationhood.

The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.

More than fifty investor-state arbitration claims have been filed by foreign investors against the Republic of Argentina due to the country's adoption of measures to mitigate the consequences of a severe financial crisis that struck the country in the early 2000s. Argentina invoked the Non-Precluded Measures (NPM) clause in the U.S.-Argentina Bilateral Investment Treaty (BIT) and the necessity defence in customary international law as its defense in these arbitrations. As a result of taking divergent approaches to interpreting the NPM clause in the U.S.-Argentina BIT, the tribunals reached inconsistent decisions on Argentina’s liability for damages incurred by foreign investors, which intensified the legitimacy crisis in the investment arbitration regime. Consequently, the tribunals’ approaches to interpreting the nexus requirement of the treaty NPM clause (the "necessary for" term) caused a fierce academic debate among scholars. This thesis studies the issues related to the inconsistent interpretation of treaty NPM clauses and the customary necessity defense in the investment arbitration regime. It presents a detailed examination of the necessity defense in customary international law and treaty NPM clauses through the lens of regime theory. By applying relevant concepts of regime theory, such as regime formation, regime attributes, regime consequences and regime dynamics, this work explores the origins and evolution of the necessity doctrine, and provides a comparative analysis of the attributes, structural elements and the consequences of invoking the customary necessity defense and treaty NPM clauses. This thesis analyses the interpretative issues in the Argentine cases, and based on the dynamics of developments in the practice of states, it arrives at concrete proposals that will contribute to the coherent practice of investment arbitration tribunals in interpreting treaty NPM clauses. By applying the concept of interaction of regimes, this thesis provides a comparative analysis of tests suggested by scholars for interpreting Article XI of the U.S.-Argentina BIT. It examines whether the interpretative testsmargin of appreciation, proportionality and less restrictive meansused by dispute settlement bodies in other specialized treaty regimes have the potential to serve as an optimal standard for interpreting Article XI. This work explains the contents of these tests and inquires as to the advantages and criticisms related to their application in the investment arbitration regime. This thesis further advances the argument that the interpretation of treaty NPM clauses (Article XI of the U.S.-Argentina BIT) should be performed with strict adherence to the general rules of interpretation as established under Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Specifically, it argues that in cases when tribunals fail to define the meaning of a treaty provision under Article 31 (1) and (2) of VCLT, they should not look for guidance from other specialized treaty regimes, but rather, must have recourse to general international law, specifically, customary rules of international law. As a methodology for performing this interpretation, this thesis proposes to apply a systemic integration approach through operationalizing Article 31(3)(c) of VCLT. Furthermore, this thesis advances the argument that the interpretation of the only means requirement of the customary necessity defense (Article 25 of Articles on the Responsibility of States) does not accurately reflect the contemporary customary rules on necessity. Thus, by applying the concept of regime dynamics, it proposes to reconceptualise the interpretation of the only means requirement through incorporating the elements of a more progressive version, which is found in the international trade regime. Unlike the scholars who rejected the application of the customary necessity elements, and proposed the direct importation of the LRM test from the international trade regime to interpret Article XI, this thesis proposes a different approach to taking advantage of the WTO jurisprudence. Specifically, it argues that WTO jurisprudence can be incorporated into the investment regime indirectly by serving as a source from which we can identify the development of state practice in examining the "only means" nature of state measures adopted in emergency (necessity) circumstances. It is contended that such state practice represents a more progressive and practical approach to interpreting the only means requirement of customary necessity defense, and thus, should be incorporated into the interpretation practice of investment arbitral tribunals.

Magister Artium (Development Studies) - MA(DVS) / Endless debates on the land reform policy and the ‘radical’ proposed strategy of expropriating privately-owned land without compensation had South Africans questioning the effects of the strategy, and the unpopular decision to adjust Section 25 of the Bill of Rights in the Constitution. Traditional leaders like King Zwelithini Goodwill, leader of the Ingonyama Trust, were reassured that communal land would not be included in the redistribution of land for the public interest– mainly because distributing privately–owned land entrusted to traditional leaders would violate the statutory land laws. What is not addressed in the communal land entrusted to traditional leaders is the protection of women’s right to land in patriarchal communal areas operating under customary laws. This discussion of women accessing rural land has resulted in an increasing number of women gaining opportunities to access and control residential and agricultural land. However, in practice, access to land does not guarantee sustainable use and ownership of the acquired land - rather, temporary access is given. Women’s control and ownership of communal land are dependent on their social networks and affiliations to men in their family and community. This study investigated the ownership of land as a factor of empowerment amongst women living in the rural community of Nqadu, which will be referred to as Nqadu throughout the study, and the existing relationship between traditional authorities and municipal officials in hindering or enhancing the power within the Nqadu women. In addition, the thesis highlighted where the Land Reform Policy and its gender-equality mandate is not upheld in the rural area of Nqadu, it also discussed reasons why it is not upheld and explore how women see the land reform policy as a mechanism for their enhanced and improved livelihood. The aim of this study was not merely to create enlightenment about the imbalances in women’s land ownership and control but to also to investigate women empowerment in relation to land ownership in Nqadu, Eastern Cape. The researcher argues that communal rural practices disregard gender mainstreaming and work as an isolated system apart from the prevailing norms in the legal systems in administering the allocation of land to women. To investigate the effects of the customary laws on the fulfilment of livelihood assets and its impact on the mobilisation of women to own and control land within communal traditional areas, the Sustainable Livelihoods Approach (SLA) was employed. A mixed-methods approach was used, and semi-structured interviews and questionnaires and secondary statistical data were also utilised to support the qualitative data. To gain enlightenment on development of the tenure status in the Mbhashe local municipality, the municipal officials who are responsible for the land-related issues in Mbhashe were also interviewed. Due to data limitations within the primary statistical data, a greater focus was placed on the strategies used to handle land allocation in Nqadu, which is largely a male dominated traditional councils. In addition, semi-structured interviews and focus group discussions were conducted alongside the collection of secondary data in the form of statistical data and policy documents, i.e MLM IDP and the DRDLR. Although the policies and programmes tabled by the DRDLR in relation to land reform have initiated conversation and implementation as far as land tenure is concerned, the coordination of the statutory and customary laws and practices are mutually exclusive. The Nqadu women continue to depend on social affiliation and structural relations within their relationships with the Nqadu men. It is advised that local and municipal government’s focus the target population for gender mainstreaming projects and gender-equal policy frameworks on men as much as women. This strategy will reduce the copying mechanism used to remain silent in households or communities that hinder their empowerment. Land reform has aided in the transformation of land from black to white, however, the proportion of women who have complete ownership and control over residential and agricultural land in communal rural areas is has not improved. Women must be provided the same opportunity to control assets like land, if not land reform will continue to be a political mechanism to empower of black people, or create a wealthier class within the black community but not all genders.

No description available.

Critics of the liberal peace paradigm call for the consideration of local realities in order to come to a more sustainable, comprehensive form of peace – which is not imposed by external actors. The “local” is generally seen as the place where bottom-up or grassroots peace is developed in contrast to the liberal peace proposed by external international agents. Whereas critical peacebuilding literature stresses the difference between the “liberal” and the “local” and acknowledges the incoherence of liberal actors, much less attention has been paid to differences and variations within the “local” sphere. Drawing on empirical research in Burundi and the Democratic Republic of the Congo (DRC) we argue that the “local” is much more complex than presumed by many critics of the liberal peace. We argue that a) the local is fragmented and actors and issues are highly contested; b) neither actors nor discourses are purely local; and c) the very idea of a coherent collective local agency is contested locally.

No description available.

National security has emerged as a pivotal issue in the domains of international politics and law. Its scope has expanded significantly in contemporary contexts. Host States can leverage national security as a defence within International Investment Law (IIL). From the perspective of Customary International Law (CIL), host States may invoke Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), namely the plea of necessity, as a national security defence to preclude wrongfulness. Certain bilateral investment treaties incorporate an essential security exception clause, known as the 'non-precluded measures provision,' which further complicates the application of Article 25 of ARSIWA. Consequently, the investor-State-dispute-settlement tribunals have rendered divergent conclusions, revolving around the applicability of the CIL-based national security defence, its relationship with treaty-based defences, and the interpretation of Article 25 of ARSIWA. The employed methodologies are doctrinal research and critical legal studies (CLS). CLS examines the interaction between international politics and law, uncovering the structural biases inherent in international legal institutions that reflect the preferences and interests of dominant decision-makers. By structuralism, CLS posits that the indeterminacy of international law enables decision-makers to interpret laws according to their preferences. Thus, it is imperative to analyse the reasons behind the tribunals' conclusions. Additionally, legal positivism underpins CLS, making doctrinal research a prerequisite for CLS analysis. The materials used include CIL, treaties, precedent cases, and general principles of law. Neoliberalism plays a significant role in the CLS analysis of IIL. The CMS v Argentina Tribunal dismissed the plea of necessity, establishing a high threshold for invoking ARSIWA, indicative of a neoliberal bias aimed at preserving the neoliberal economic order. Conversely, the LG&E v Argentina Tribunal, while still imposing relatively stringent requirements for invoking ARSIWA, approved the national security defence based on the same facts. This Tribunal displayed hypocrisy by upholding a neoliberal bias while pursuing international capital's sustainable exploitation. The Unión v Egypt Tribunal dismissed the plea of necessity, adopting an ostrich policy by avoiding the issue of public safety, which resulted in a straw-man fallacy. This Tribunal appeared confused about neoliberalism after the 2008 Global Financial Crisis and opted to hedge its bets. Issues such as the differences between ordoliberalism and neoliberalism, the European Union's Strategic Autonomy, and the hegemonic rivalry between the United States and China, may potentially shape a new structural bias in the Huawei v Sweden Tribunal.