LL.D. / This inquiry is about the derogation of human rights during states of emergency. International human rights law has blossomed since World War II. Over the years it has been understood that human rights can be limited or derogated (suspended) under certain circumstances. A set of standards has been developed through the different sources of international law to ensure that human rights abuses are avoided during states of emergency. Treaty law, as well as customary international law, provides definite standards that have to be adhered to during these circumstances. General principles of law recognised by “civilised” nations also contribute to the standard setting that must apply during states of emergency. The use of emergency powers during times of crisis is a world phenomenon. Human rights violations often occur in times of crisis when emergency powers are used. This has led to rich jurisprudence by the various international bodies that monitor, enforce and promote respect for human rights. All the sources of international law have contributed to ensuring that a prudent set of standards governs states of emergency. In this study these standards are set out and expounded upon. These standards are furthermore applied in three Southern African states. The history of states of emergency in these countries and the constitutional dispensations that govern states of emergency in each of these countries is placed under scrutiny and tested against the international standards that should apply. The picture that unfolds is not encouraging because there is not clear evidence that there is always respect for international law and the meticulous application of these standards. International and regional monitoring bodies have not always successfully discharged their obligations to promote human rights or to prevent human rights abuses during states of emergency. The main difficulty in the African Charter for Human and Peoples’ Rights is that it does not contain a derogation article, which forbids the abuse by the state of emergency instruments and curbs the abuse of power during states of emergency. The African Commission is plagued with difficulties, mainly pertaining to staff and resources. It often aspires to be “politically correct” in the face of state parties who are quick to rely on state sovereignty and thereby do not allow outsiders to monitor alleged human rights violations. The adoption of the Protocol to the African Charter on the establishment of an African Court is an important step in strengthening the African system for the protection of human rights. In Southern Africa, there is not a clear commitment to uphold and defend human rights through the relevant regional bodies – the correct statements are expressed in the treaty that formed the Southern African Development Community. There is however no authority to monitor or ensure compliance to ideals set out in the treaty. A route to overcome this difficulty is suggested, namely to negotiate a set of human rights standards in the region, without any legally binding effect initially but with strong persuasive and moral standing. This first step must provide a launching pad to ultimately have a Southern African Human Rights Treaty, with inter alia a tight derogation article as well as a treaty body with strong monitoring and enforcement powers. A regional commitment to uphold and respect human rights is a prerequisite to ensure that a human rights culture takes root in the service of stability and democracy in Southern Africa.

Thesis (doctoral)--Universität Bern, 1920. / Includes bibliographical references (p. [283]-284).

No abstract available. / Thesis (LL.M)-University of Natal, Durban, 1997.

Thesis (M.A.) - Carleton University, 2005. / Includes bibliographical references (p. 122-127). Also available in electronic format on the Internet.

Thesis (M.A.I.S.)--Oregon State University, 2008. / Printout. Includes bibliographical references (leaves 81-84). Also available on the World Wide Web.

This work examines the legal effects of a declaration of a state of emergency under the Public Safety Act 3 of 1953 and the exercise of legislative and administrative powers pursuant thereto. The general basis of judicial control over executive action and the various devices used to limit or oust the court's jurisdiction are set out and explained. Against this background, the courts' performance of their supervisory role under the special circumstances of emergency rule is critically surveyed and assessed. The legal issues raised by the exercise of emergency powers is examined at the various levels of their deployment: first, the declaration of a state of emergency; second, the making of emergency regulations; third, their execution by means of administrative action, including detention, banning, censorship and the use of force. The major cases concerning emergency issues, both reported and unreported, are analysed in their appropriate contexts, and an overview provided of the effects of emergency regulations and orders on such freedoms as South Africans enjoy under the 'ordinary' law. Finally, an attempt is made to assess how these decisions have affected the prospect of judicial review of executive action, both in the emergency context and in the field of administrative law generally. The conclusion is that, however far the Appellate Division may appear to have gone towards eliminating the role of the law in the emergency regime, grounds remain for the courts to exercise a more vigorous supervisory role should they choose to do so in future.

Pas de résumé / Doctorat en droit / info:eu-repo/semantics/nonPublished

En France, à la suite de précédentes constitutions, la Constitution de la Ve République consacre l’état de siège (art. 36) ; à l’étranger, de nombreux pays l’ont adopté. Ce constat laisse béant un paradoxe suivant : si la France adopte, la première, une législation d’exception, elle n’offre pas pour autant de réflexion approfondie sur ce qu’est l’état d’exception. L’étude des origines et de l’histoire de l’état de siège met au jour les raisons d’un tel paradoxe.L’état de siège est originellement une disposition technique du droit militaire (loi des 8-10 juillet 1791), qui prévoit que, dans certaines circonstances, l’ordre public et la police passent de l’autorité civile, compétence par principe, à l’autorité militaire. Ainsi, la loi prévoit le renversement du principe selon lequel l’autorité civile prime sur le militaire. Au cours de la Révolution, cette disposition est utilisée afin de réprimer les troubles violents qui se multiplient à l’intérieur du territoire. Durant le XIXe siècle, les régimes successifs y recourent également, jusqu’à ce que la Cour de cassation, en 1832, donne un coup d’arrêt à cette pratique. Le législateur est donc contraint d’adopter un texte – la loi du 9 août 1849 – qui encadre précisément son usage. Cette loi est, véritablement, une législation d’exception, au sens où elle contrevient à un principe consacré par l’ordre constitutionnel, en fonction de circonstances déterminées, pour un temps et un lieu circonscrits. Elle accorde également à l’autorité militaire des pouvoirs étendus qui restreignent les libertés publiques, et consacre la compétence des juridictions militaires pour juger les non-militaires. / In France, following previous Constitutions, the state of siege gained acceptance under the Constitution of the Fifth Republic (art. 36); many countries abroad adopted it. This fact leaves a gaping paradox: even if France adopts the first emergency legislation, it does not mean that it provides an in depth reflection on what is the state of emergency. The study of the genesis and history of the state of siege reveals the reasons for such a paradox. Originally, the state of siege was a technical measure of military law (law of July 8-10, 1791), which provided that in certain circumstances, public order and police would transfer from the civil authority, competent on principle, to the military authority. Thus, law foresaw the reversal of the principle according to which the civil authority takes precedence over the military. During the Revolution, this measure was used to suppress the violent unrest that became more frequent inside the territory. Throughout the nineteenth century, successive governments had also recourse to it until the Supreme Court put an end to this practice in 1832. Consequently ,the legislator was forced to pass a bill - the Law of August 9, 1849 - which would frame precisely its use. This law truly is an emergency law, which means that it contravenes a principle enshrined in the constitutional order, depending on specific circumstances, for a circumscribed time and place. It also gives to the military authority enlarged powers which restrict civil liberties, and establishes the jurisdiction of military courts to judge non-military courts.

In the first half of the 20th Century, the United Kingdom’s counter-terror laws were couched extremely broadly. Consequently, they bestowed upon the executive extraordinarily wide powers with which it could address perceived threats of terrorism. In that period of time, the internal affairs of any state were considered sacrosanct and beyond the reach of international law. Consequentially, international human rights law was not a feature of the first half of the 20th Century. Following the war, however, international human rights law grew steadily, largely through the propagation of international treaties. As the 20th Century progressed, the United Kingdom became increasingly involved in international human rights law, particularly by way of the ratification of a number of treaties. Prior to the year 2000, none of these treaties had been directly incorporated into the United Kingdom’s municipal law. The traditional Dualist understanding of the relationship between international treaty law and municipal law in the United Kingdom, would hold that these unincorporated human rights treaties would form no part of that state’s domestic law. This Dualist assumption is called into question, however, by a legislative trend which neatly coincides with the United Kingdom’s increased involvement with international human rights. This trend consists of two elements, firstly, the progressively plethoric and specific ways in which the United Kingdom began to define its anti-terror laws. The specificity in which this legislation was set out curtailed the executive’s powers. The second element is that, over time, the United Kingdom’s counter-terror laws increasingly began to include checks and balances on the executive. There is a clear correlation between these trends and the United Kingdom’s evolving relationship with international human rights law. That nation’s enmeshment with international human rights law from 1945 onwards is undeniably linked with the parallel evolution of its domestic counter-terror laws. v One of the grounds on which the status of international law is questioned is that it is ineffectual. This thesis calls such arguments into question, as it shows that international human rights treaties have meaningfully impacted on the United Kingdom’s evolving counter-terror laws and thereby successfully enforced the norms they advocate. / Public, Constitutional, & International / LL.D.

In the first half of the 20th Century, the United Kingdom’s counter-terror laws were couched extremely broadly. Consequently, they bestowed upon the executive extraordinarily wide powers with which it could address perceived threats of terrorism. In that period of time, the internal affairs of any state were considered sacrosanct and beyond the reach of international law. Consequentially, international human rights law was not a feature of the first half of the 20th Century. Following the war, however, international human rights law grew steadily, largely through the propagation of international treaties. As the 20th Century progressed, the United Kingdom became increasingly involved in international human rights law, particularly by way of the ratification of a number of treaties. Prior to the year 2000, none of these treaties had been directly incorporated into the United Kingdom’s municipal law. The traditional Dualist understanding of the relationship between international treaty law and municipal law in the United Kingdom, would hold that these unincorporated human rights treaties would form no part of that state’s domestic law. This Dualist assumption is called into question, however, by a legislative trend which neatly coincides with the United Kingdom’s increased involvement with international human rights. This trend consists of two elements, firstly, the progressively plethoric and specific ways in which the United Kingdom began to define its anti-terror laws. The specificity in which this legislation was set out curtailed the executive’s powers. The second element is that, over time, the United Kingdom’s counter-terror laws increasingly began to include checks and balances on the executive. There is a clear correlation between these trends and the United Kingdom’s evolving relationship with international human rights law. That nation’s enmeshment with international human rights law from 1945 onwards is undeniably linked with the parallel evolution of its domestic counter-terror laws. v One of the grounds on which the status of international law is questioned is that it is ineffectual. This thesis calls such arguments into question, as it shows that international human rights treaties have meaningfully impacted on the United Kingdom’s evolving counter-terror laws and thereby successfully enforced the norms they advocate. / Public, Constitutional, and International / LL.D.