In classical terms, democracy is synonymous with direct participation. However, as states grew and direct public participation became more difficult, a more minimal concept of democracy associated with enfranchisement was adopted. Democracy, however, should not be limited to the enfranchisement of the masses. It ought to include some level of direct public participation in branches of the government such as the judicial system.

Perhaps one of the most mutually beneficial customary rules on international sea law for seagoing nations is the right of a ship to seek refuge in a foreign state's sheltered waters. It means effectively that ships can travel the world knowing that should the need occur, they will due to reasons of force majeure, be able, not only to seek refuge in sheltered waters, but will also have a general right to enter the port of a foreign state. The rule is independent of any interstate treaties or conflict. The distressed ship becomes in a sense a neutral ship and when she seeks refuge, the flag she is flying becomes practically irrelevant. The coastal state's obligation to al low a distressed ship to enter its sheltered waters is the corollary to the distressed ship's right to enter. The state has, however, a customary right to protect itself against pollution or anything which could prejudice its security. It is obvious therefore, that a conflict situation could develop between a coastal state's "refuge" obligations and her right of self-protection. It is the objective of this paper to discuss the above situation by first analysing any relevant definitions, examining in detail the laws and customary practices affecting coastal states and distressed ships, and then·, with the example of some past incidents, attempt to describe the conflicts and dangers which can arise when a ship finds herself in a position where she is in dire need of a place of refuge. The position of the salvor will also be discussed where appropriate. In salvage law the reaching of a place of refuge by the distressed ship is the ·salver's ultimate objective. For the coastal state, however, the problems are only then just beginning.

This work deals with aspects of constitutional development in South Africa from Union in 1910 until 1983. More specifically, it examines the important role played by constitutional conventions in this country, drawing extensively upon local, British and other Commonwealth materials for this purpose. Reference to British and other Commonwealth experience of conventions is justified, because South Africa enjoys a constitutional heritage richly endowed from the United Kingdom2 and from the other former Dominions of the British Crown. The common bond between South Africa and many of these countries is a system of government often referred to as the 'Westminster System. A brief description of this common constitutional heritage or 'Westminster System' is required before a proper analysis of constitutional conventions can be undertaken.

Unlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to it. In those instances, two core rights operate at odds with each other: the right of unlawful occupiers not to be arbitrarily evicted per section 26(3) of the Constitution, and the right of property owners not to be deprived of their property, except through the operation of a law of general application as per section 25 of the Constitution. When the unlawful occupation of private land is not contained, the number of unlawful occupiers grows rapidly, making immediate evictions impossible as they would be unjust and inequitable as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Constitutional Court has previously awarded constitutional damages in a similar case (President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5). Damages were to be paid until evictions have been completely carried out. Yet 15 years later, it is clear that the informal settlement on Modderklip's land has grown in size and acquired some level of permanence. This dissertation argues that such cases amount to an unjustifiable limitation of the land owner's right to not be deprived of property. Consequently, the dissertation makes a case for judicial expropriation as a just and equitable order under section 172(1)(b) of the Constitution. The effect of such an order on the principle of separation of powers is also considered and it is contended that, in such exceptional circumstances, the courts should not shirk away from the duty of holding the State accountable and dispensing justice to the parties by expropriating the land, even if it tests the flexibility of the principle of separation of powers.

In 1976, the legislature introduced a far-reaching amendment to the Pension Funds Act. The amendment was the insertion of s37C into the Act. Section 37C effected a fundamental change to the law of succession and the principle of freedom of testation. It did so by removing what, for many, is their most valuable property, from the reach of the law of succession or any other law and subjecting it to a sui generis statutory regime. Under this regime, the power to control the devolution of death benefits has been transferred from the individual who ‘owns' the benefit to the trustees of the pension fund. Trustees are, in turn, permitted to delegate their power. The result is that a stranger or a group of strangers have the power to select the beneficiaries of the deceased's principal asset from amongst the deceased's dependants, as defined, and any additional non-dependent nominated beneficiaries, with far-reaching and possibly life-changing consequences for those affected by the decision. The trustees are even permitted to make decisions that are contrary to, and arguably less equitable than, those of the individual, and yet their right to do so is recognised in law. Section 37C has been in existence for 40 years; its import, and impact, has increased significantly over the course of the past 20 years – yet most of those affected remain unaware of its existence. The study demonstrates that in its present form, s37C is both unconstitutional in its design and inequitable in its operation. As such, it is in urgent need of reform.

This dissertation considers the barriers facing victims of domestic violence who seek protection orders under the South African Domestic Violence Act 1998 (DVA). 1 It looks at the key players responsible for implementing the protection order process: clerks, court support workers, magistrates and police, and the challenges posed by the way that they interact as the 'courtroom workgroup.'2 This topic is examined through qualitative empirical research in the Western Cape with court support workers, independent victims' advocates who sit within the courts, advising and assisting applicants, and offering them psychosocial support. Domestic violence victims often present at court seeking a protection order during a time of crisis; some are at risk of their life. 3 Therefore, for many applicants, in order for the protection of the courts to be effective, it should be provided on the day of application. Interim protection orders and interim warrants of arrest are intended to give immediate protection to the applicant. However the way in which the courts and police have implemented their respective obligations under the DVA leads to inconsistency, arbitrariness, unfairness, delay and ultimately a failure to provide protection to vulnerable applicants within an appropriate time period, or at all. Participants suggested that systemic issues including complex forms, long waiting times, overstretched staff, poor communication by the courtroom workgroup with service users, and non-compliance with the DVA by police create significant barriers to applicants. Many applicants are left bewildered or disillusioned and do not complete the protection order process, leaving them without protection. Consequently, under the current system, the courts and police are failing to uphold their human rights obligations towards applicants for protection orders. These are long-standing issues, which have been noted by academics and civil society for 20 years, yet it appears that there has been little improvement. 4 Reform of the DVA should be accompanied by improved training, accountability and victim-centric policy guidance for the courtroom workgroup. As well as widening the scope of the DVA, these should address the deficits in implementation of the current law.

The dissertation deals with the relationship between climate change and international human rights law. A special focus lies on the question if states have a human rights obligation to mitigate climate change by reducing greenhouse gas-emissions. To this end, the dissertation develops and proposes a risk-based approach that helps overcome the complex issue of causation. After a short introduction (section I), the thesis establishes the framework (section II) by defining climate change on one hand and international human rights law on the other hand, describing roughly the scientific processes and the most pertinent legal instruments. It then puts both element in relation by briefly tracing the history of how scholars and activists have started to apply a human rights approach to the issue of climate change. This relation is further enlarged upon with an analysis of the factual impacts that climate change has on human rights guarantees (section III). Next to established human rights under especially the ICCPR and the ICESCR, the question is discussed if a self-standing right to a healthy environment exists de lege lata. The thesis also briefly describes the issue of climate justice. On this basis, the centrepiece of the dissertation then discusses the resulting human rights obligations (section IV). It notes that so far, there is significant scepticism towards a human rights duty to mitigate and its potential content is rather vague. To strengthen the case for a duty to mitigate, the text proposes a “risk-based” approach: Based mainly on jurisprudence by the European Court of Human Rights, it is argued that states not only have to prevent harm but also reduce mere risks of harm. This way, the issue of causation and attribution which is often seen as the Achilles-heel of a human rights approach to mitigation can be overcome. In the end, it is submitted that states are under a duty to reduce their greenhouse gas-emissions in accordance with the remaining “greenhouse gas-budget”. This argument is further corroborated with regard to climate justice and an extraterritorial perspective on the duty to mitigate (section V). It is argued that the international relevance of the right to self-determination as well as a duty not to interfere with human rights in other countries could require states to take into account not only climate change impacts in their own territory but also abroad. This way, the human rights duty to mitigate is not only reinforced, but can also help to realise a greater degree of climate justice. Lastly, the conclusion (section VI) recaps and summarizes the given argument and concludes that a human rights approach can be useful to compel governments to more decisive mitigation measures.

The global refugee population is at an all-time high and is expected to continue to rise in the near future. Recent crises in Europe as well as the refugee situation in Africa have once again highlighted the challenges in managing the world's refugees. While both regions are currently host to a significant number of refugees, their approaches to managing the situation appear to differ greatly. Therefore, this thesis sets out to investigate approaches to refugee management in Europe and Africa. In addition, it aims to find an answer to the question of how the chosen approach affects long-term refugee management and, in turn, the prospect of achieving durable solutions for refugees in the respective regions. Through an examination of the applicable laws, both internationally and regionally, as well as by consulting secondary sources, the ‘European approach' and the ‘African approach' to refugee management were identified. Furthermore, a closer look at two case studies, one from each region, provided more insight into how international and regional policies are translated in the domestic context, and what the ensuing prospects are for durable solutions. Deterrence appeared to be prevalent in both contexts, albeit arguably due to different circumstances. As significant shortcomings in achieving a dignified and rights-respecting approach to refugee management were identified, this thesis concludes with three recommendations.

There is increasing recognition that sexual violence victims have multiple and complex needs, requiring the joint intervention of multiple sectors to generate a more effective response. As such, multi-sector collaborations that integrate health, legal and psychosocial support services are acknowledged as a best practice intervention. Despite the dearth of evidence on how such integration approaches operate in resource-constrained settings, they continue to be established and scaled up in parts of Africa. Using a qualitative case-study approach, this thesis seeks to understand how integration approaches in Kenya and South Africa contribute to the fulfilment of the human rights obligations of states to prevent and effectively respond to sexual violence against women. I use interview data to compare Kenya’s Gender Based Violence Recovery Centres and South Africa’s Thuthuzela Care Centres across rural, peri-urban and urban contexts. The thesis moves away from current analysis approaches, which assess integration models based on separate, sector-specific outcome indicators, such as health or criminal justice system outcomes. I use a feminist human rights perspective, based on the state’s responsibility to exercise due diligence in prevention, protection, prosecution, punishment and provision of adequate redress. This perspective facilitates the centrality of victims’ needs and rights in assessing service integration models, while foregrounding the need for state accountability to establish sustainable and effective sexual violence interventions. I argue that multisector approaches that integrate sexual violence services are complex networks, which produce different service orientations, shaped by the interactions of collaborating partners, amidst fundamental systemic and structural flaws. In the governance of collaboration systems, different service orientations emerge as stakeholders within networks, wield their resources, mentalities, methods and institutions to produce certain outcomes as priority over others. Consequently, as competing sector-specific mandates and ideologies are prioritised, multi-sector approaches can eclipse and de-centre the needs and rights of sexual violence victims. To fulfil the state responsibility to exercise due diligence, there is a need to re-orientate integration models in a way that centres the needs and rights of victims rather than the competing institutional mandates of network players. This requires the implementation of a victim-centred integration approach that goes beyond creating safe havens or protected processes through specializations, to that of shifting deeply-rooted social and institutional norms, which are the root causes of violence against women.

The prevailing South African Constitutional order is defined in the Constitution of the Republic of South Africa as a sovereign constitutional democracy. Freedom of access to government held information by the public is a fundamental and indispensable tenet of a sovereign constitutional democracy. The essential link between the two is recognized by the South African Constitution which guarantees the right to freedom of information as a fundamental human right. The Constitution simultaneously recognizes that all rights, including the right to freedom of information, may be subject to limitation. However, any such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. The right to freedom of information is subject to often severe limitations in the arena of national security matters on the ground that the need for secrecy in this arena is self-evident. The limitation of the right may be necessary, but must, as in the case of all other limitations, be reasonable and justifiable in an open and democratic society. A comparative overview of most notably the United States of America, a stable and mature sovereign constitutional democracy, reveals that it, in the practical application of the limitation of the right to freedom of information in the arena of national security does not follow through on its commitment to democratic values. In the practical application of the limitation, the United States may be accused of failing to meet the standards required by a sovereign constitutional democracy in the extent of power it affords the unaccountable executive branch of government over the control and dissemination of information in the arena of national security. More specifically, in the power it affords this branch to define national security. And further, in its failure to hold this branch accountable for decisions made in this regard. This lack of accountability may be attributed to a conservative judiciary which as a matter of course defers to the executive and a failure on the part of the legislature to legislate alternative methods of accountability. The question for South Africa is whether it having Constitutionally entrenched the right to freedom of information, will be able, in contrast to the United States, to maintain democratic standards in the practical implementation of the limitation of the right to freedom of information in the arena of national security. Current practices in South Africa reveal that it has not been able to andwill not be able to maintain the necessary standards, without engaging in some fundamental changes. Primarily because of traditional arid entrenched judicial and public attitudes as well as because of the extensive power afforded the executive branch in respect of control of information in the arena of national security and over the definition of national security. The solution lies in a pro-active legislative programme designed to give effect to the right to freedom of information. Any such programme must actively limit the extent of discretionary power afforded the executive branch and where such power is necessary, make it subject to substantive review, in other words must enable one to hold the executive accountable for its decisions. One of the primary tools for achieving this is by way of freedom of information legislation. Such legislation must expressly, and in sufficient detail, regulate exemptions to the right in such a manner as to make the successful invocation of such an exemption dependant on whether it is reasonable and justifiable in an open and democratic society. Further, any allegation of reasonableness and justifiability must be open to public scrutiny in a manner which would not jeopardize legitimate secrets. The balancing of the competing interests poses a very real dilemma for any democratic society. This dilemma can however to a large extent be resolved by a change in judicial and public attitudes and legislative activism. Th,e process of change has commenced in South Africa. This is evidenced in the Constitutional terms and tone as well as in a number of legislative initiatives to change existing national security laws and to introduce new laws such as the current Open Democracy Bill.