Magister Legum - LLM / South Africa recently submitted reports to three treaty bodies regarding steps taken over the past two decades to implement the rights of children with disabilities. This study is focused on critically analysing the South African reports submitted to the United Nations Committee on the Rights of the Child (hereinafter referred to as the CRC Committee), the African Committee of Experts on the Rights and Welfare of the Child (hereinafter referred to as the ACERWC) and the Committee on the Rights of Persons with Disabilities (hereinafter referred to as the CRPD Committee) regarding the implementation of the CRC, ACRWC and the CRPD in South Africa. In doing so, the study focuses on all matters pertaining to children with disabilities as well as focusing on particular groups of children with disabilities. This will be done to determine whether or not the State meets the international law obligation of implementing the CRC, ACRWC and the CRPD in South Africa.

The prevalence of rape and its widespread impunity, whether committed during armed conflict or peacetime, has been firmly condemned by the UN and its prohibition has been consistently recognised in international law. This development, however, is a rather novel endeavour. The belated response is in part a consequence of rape being characterised by such myths as sexual violence representing an inevitable by-product of war or as being committed by sexual deviants. Its systematic nature has thus been ignored as has the gravity of the offence, often leading to a culture of impunity. This was evident, for example, through the failure to prosecute crimes of rape during the Nuremberg trials, in qualifying it as a harm against a woman’s honour in the 1949 Geneva Convention (IV), or in considering it a violation located in the “private sphere”, thereby beyond regulation by international law. However, substantial efforts have been made in international law to recognise obligations for states to prevent rape. A prohibition of the offence has developed both through treaty law and customary international law, requiring the prevention of rape whether committed by state agents or by a private actor. One measure to prevent such violence has been identified as the duty to enact domestic criminal laws on the matter. The flexibility for states in determining the substance of such criminal laws is increasingly circumscribed, leading to the question of whether a particular definition of rape or certain elements of the crime must be adopted in this process. Elaborations on the elements of the crime of rape have been a late concern of international law, the first efforts made by the ad hoc tribunals (the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia), followed by the regional human rights systems as well as the International Criminal Court. The principal purpose of the thesis is consequently the systematisation and analysis of provisions and emerging norms obliging states to adopt a particular definition of rape in domestic penal codes. The prohibition of rape and, subsequently, the process of defining the crime has been made in three areas of international law – international human rights law, international humanitarian law and international criminal law. Emerging norms in all three regimes are consequently examined in this thesis, bringing to the fore overarching questions on the possible harmonisation of defining rape in these distinct branches of international law. The study will thus provide a contextual approach, aiming to evince whether the definition can be harmonised or if prevailing circumstances, such as armed conflict or peace, should necessarily inform its definition. Ultimately, the advances in international law are evaluated in order to identify possible areas for further development.

Doctor Legum - LLD / This study sets out to establish what is required of the South African government to comply with international human rights treaties and Constitutional obligations with respect to early childhood development (ECD) for children with disabilities. This requires clarification of the nature, scope and content of ECD and conceptual frameworks for child development and childhood disability are therefore presented. Early childhood is defined as the period from birth to four years of age. It is a period (by comparison to any other phase in the life course) of accelerated growth, during which brain development can be optimally promoted. It is at the same time a highly sensitive period when permanent damage caused by toxic stress can be averted. Early childhood is an opportunity for early intervention for children with disabilities, and is ideally suited for promoting social inclusion between children with disabilities and those without disabilities, particularly in early learning settings. By virtue of its potential to promote optimal development of young disadvantaged children in particular, ECD is not only a means of working towards equity, it has been recognised as a national investment. The content of ECD, drawing from the most recent publication of the South African Child Gauge (2013), is seen as comprising an ‘essential package’ of services, including nutrition, health, social services, caregiver support and early learning opportunities. The focus of this study is on the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of Persons with Disabilities (CRPD) all of which have provisions relating to the general context of children with disabilities as well as to the components of the ‘essential package’. In addition to the sector-related rights contained in these treaties, they impose general obligations on the State with respect to legislative and other measures which it must undertake. These are discussed together with the State obligations under the South African Constitution which provide not only for non-discrimination, dignity and equality, but also for specific socio-economic rights for children which create justiciable obligations for the State. Having established the obligations of the State under international law and the Constitution, there is analysis of current legislation and policies and the extent to which they are compliant. A brief description is given of the history of disability and ECD-related services during the apartheid era, and how these have shaped current provision. Attention is given to provisions of the Children’s Act for ECD, partial care and prevention, and early intervention, where there is a lack of a clear mandate for funding services. Further, while limited Social Security is provided to children with disabilities in the form of Care Dependency Grants, these are likely to reinforce a welfarist perspective unless viewed as part of a broader initiative for equalisation of opportunities and development of children with disabilities. In respect of the right to health, progress made in reducing maternal and child mortality rates is applauded, but the primary focus on preventive and curative care has ‘crowded out’ a comprehensive view of primary health care as also encompassing rehabilitative care. Further, mechanisms to ensure early identification and intervention for children with disabilities, through developmental screening and referral, need to be strengthened. In respect of the right to education, there has been limited attention given to children under the age of five years, including within the Inclusive Education Policy (White Paper 6). The study therefore concludes that there are various areas in which there is a lack of alignment between the State obligations under international law, and current legislation and policies. However, drawing on the CRPD in particular, and the current heightened political attention being given to ECD, evidenced by its inclusion in the National Development Plan, this study further concludes that there exists at present a tremendous opportunity to ensure the inclusion of children with disabilities such that they are able to enjoy all the benefits of ECD and thereby reach their full potential.

Six out of every ten children in South Africa are living in poverty. This situation is aggravated by the AlDS pandemic. The pandemic is also the cause of a generation of AlDS orphans and as a consequence a lot of pressure is put on society's resources. Although the fundamental rights of children are entrenched in the Constitution of the Republic of South Africa, 1996, the current legal and administrative framework is not being implemented effectively in order to realise these rights. The Constitutional Court has adjudicated upon several matters regarding the realisation of socio-economic rights, thereby confirming that socio-economic rights are indeed justiciable. This research is specifically concerned with the realisation of children's right to have access to health care as entrenched in sections 27 and 28(l)(c) of the Constitution. Read with section 7(2) of the Constitution, this right places negative as well as positive obligations on the state to respect, protect, promote and fulfil children's right to have access to health care. Children's right to health care are however dependent on the internal limitations contained in section 27(2) of the Constitution which states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Having ratified the UN Convention on the Rights of the Child (CRC), the state is further bound to recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Parties to the CRC shall also strive to ensure that no child is deprived of his or her right of access to such health care services. Good health is dependent on more than a mere right to have access to health care. In order to ensure the highest attainable standard of health for all children, it is necessary that the available services are affordable and accessible on an equitable basis. Access to health care should be seen as part of a more comprehensive social protection package to ensure a minimum standard of living, consistent with the value of human dignity in our Constitution. In order to achieve this, the fragmented health care system which existed before 1994 and which was mainly a result of the previous dispensation of oppression and racial discrimination, had to be transformed in order to reach the ideal of improving the quality of life of all citizens as contained in the preamble of the Constitution. Ten years after the inception of the new constitutional dispensation, it can be said that the government is making progress with the transformation of the health system and making it accessible to all people, including children. After extensive research on the legislative and other measures that the government has implemented in order to realise children's right to access to health care, the following conclusions has been reached: State policies regarding health care are taking account of the needs of children as a vulnerable group of society and it can be said to be reasonable in the formulation thereof. Regarding the implementation of these policies, much remains to be done to ensure that the benefits thereof reach the children, especially more vulnerable groups such as street children and child-headed households - a common occurrence with the high prevalence of HIVIAIDS in South Africa. The enactment of the National Health Act 61 of 2003 is still awaited although it has already been signed. This legislation provides a national framework of norms and standards regarding the health care system and it is mainly based on the rights of patients. A new Children's Bill [B32 - 20031 has been introduced to parliament. The bill deals extensively with the rights of children as contained in the Constitution and also aims to give effect to governments' obligations in terms of the CRC. The enactment of the bill should be given priority, although measures should be implemented to ensure that health care services are also accessible to children who are not assisted by adults such as child-headed households. The allocation of public funds should be considered in order to provide better social assistance to families in dire need but mechanisms to ensure that children benefit from social grants must be implemented. Many of these grants are being abused by parents which means that although the grants are available, the money is not always spent to better the plight of the children. This is especially important in the light of the fact that the primary obligation to take care of children vests in the parents. The courts and especially the Constitutional Court, has taken their role in realising socio-economic rights seriously and very important guidelines has been formulated regarding the reasonableness of legislative and other measures in this regard. After the Khosa-case it should be said that although the courts are allowed to overstep the boundaries of separation of powers, they should not rewrite these boundaries by not taking appropriate account of the availability of financial resources. This also applies to the executive and legislature which should act more effectively to implement the court's decisions. The Human Rights Commission is playing an important role with regard to the realisation of socio-economic rights by monitoring and evaluating the implementation of government programmes and legislation. The Commission also provides valuable guidelines with regard to the realisation of socio-economic rights in the form of annual reports submitted to parliament. It is submitted that the Commission should however consider to define minimum core obligations of socio-economic rights since the Commission is better equipped to do this than the courts are. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2005.

Six out of every ten children in South Africa are living in poverty. This situation is aggravated by the AlDS pandemic. The pandemic is also the cause of a generation of AlDS orphans and as a consequence a lot of pressure is put on society's resources. Although the fundamental rights of children are entrenched in the Constitution of the Republic of South Africa, 1996, the current legal and administrative framework is not being implemented effectively in order to realise these rights. The Constitutional Court has adjudicated upon several matters regarding the realisation of socio-economic rights, thereby confirming that socio-economic rights are indeed justiciable. This research is specifically concerned with the realisation of children's right to have access to health care as entrenched in sections 27 and 28(l)(c) of the Constitution. Read with section 7(2) of the Constitution, this right places negative as well as positive obligations on the state to respect, protect, promote and fulfil children's right to have access to health care. Children's right to health care are however dependent on the internal limitations contained in section 27(2) of the Constitution which states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Having ratified the UN Convention on the Rights of the Child (CRC), the state is further bound to recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Parties to the CRC shall also strive to ensure that no child is deprived of his or her right of access to such health care services. Good health is dependent on more than a mere right to have access to health care. In order to ensure the highest attainable standard of health for all children, it is necessary that the available services are affordable and accessible on an equitable basis. Access to health care should be seen as part of a more comprehensive social protection package to ensure a minimum standard of living, consistent with the value of human dignity in our Constitution. In order to achieve this, the fragmented health care system which existed before 1994 and which was mainly a result of the previous dispensation of oppression and racial discrimination, had to be transformed in order to reach the ideal of improving the quality of life of all citizens as contained in the preamble of the Constitution. Ten years after the inception of the new constitutional dispensation, it can be said that the government is making progress with the transformation of the health system and making it accessible to all people, including children. After extensive research on the legislative and other measures that the government has implemented in order to realise children's right to access to health care, the following conclusions has been reached: State policies regarding health care are taking account of the needs of children as a vulnerable group of society and it can be said to be reasonable in the formulation thereof. Regarding the implementation of these policies, much remains to be done to ensure that the benefits thereof reach the children, especially more vulnerable groups such as street children and child-headed households - a common occurrence with the high prevalence of HIVIAIDS in South Africa. The enactment of the National Health Act 61 of 2003 is still awaited although it has already been signed. This legislation provides a national framework of norms and standards regarding the health care system and it is mainly based on the rights of patients. A new Children's Bill [B32 - 20031 has been introduced to parliament. The bill deals extensively with the rights of children as contained in the Constitution and also aims to give effect to governments' obligations in terms of the CRC. The enactment of the bill should be given priority, although measures should be implemented to ensure that health care services are also accessible to children who are not assisted by adults such as child-headed households. The allocation of public funds should be considered in order to provide better social assistance to families in dire need but mechanisms to ensure that children benefit from social grants must be implemented. Many of these grants are being abused by parents which means that although the grants are available, the money is not always spent to better the plight of the children. This is especially important in the light of the fact that the primary obligation to take care of children vests in the parents. The courts and especially the Constitutional Court, has taken their role in realising socio-economic rights seriously and very important guidelines has been formulated regarding the reasonableness of legislative and other measures in this regard. After the Khosa-case it should be said that although the courts are allowed to overstep the boundaries of separation of powers, they should not rewrite these boundaries by not taking appropriate account of the availability of financial resources. This also applies to the executive and legislature which should act more effectively to implement the court's decisions. The Human Rights Commission is playing an important role with regard to the realisation of socio-economic rights by monitoring and evaluating the implementation of government programmes and legislation. The Commission also provides valuable guidelines with regard to the realisation of socio-economic rights in the form of annual reports submitted to parliament. It is submitted that the Commission should however consider to define minimum core obligations of socio-economic rights since the Commission is better equipped to do this than the courts are. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2005.

<p>The thesis firstly looks at how women&rsquo / s right to freedom from violence has developed in international (global) human rights law since the early 1990s. In this regard, the study finds that while the issue of violence against women (and women&rsquo / s rights generally) was barely on the international human rights agenda at the beginning of this period, an enormous degree of development has subsequently taken place. Through the adoption of documents such as General Recommendation No. 19 by the Committee on the Elimination of Discrimination against Women, the Declaration on Elimination of Violence against Women and the Beijing Declaration and Platform of Action, international norms and standards were set regarding role of the State in providing women with protection against violence.</p>

<p>The thesis firstly looks at how women&rsquo / s right to freedom from violence has developed in international (global) human rights law since the early 1990s. In this regard, the study finds that while the issue of violence against women (and women&rsquo / s rights generally) was barely on the international human rights agenda at the beginning of this period, an enormous degree of development has subsequently taken place. Through the adoption of documents such as General Recommendation No. 19 by the Committee on the Elimination of Discrimination against Women, the Declaration on Elimination of Violence against Women and the Beijing Declaration and Platform of Action, international norms and standards were set regarding role of the State in providing women with protection against violence.</p>

Doctor Legum - LLD / The thesis firstly looks at how women's right to freedom from violence has developed in international (global) human rights law since the early 1990s. In this regard, the study finds that while the issue of violence against women (and women's rights generally) was barely on the international human rights agenda at the beginning of this period, an enormous degree of development has subsequently taken place. Through the adoption of documents such as General Recommendation No. 19 by the Committee on the Elimination of Discrimination against Women, the Declaration on Elimination of Violence against Women and the Beijing Declaration and Platform of Action, international norms and standards were set regarding role of the State in providing women with protection against violence. / South Africa

Le développement du droit international des droits de l’homme conduit le droit international public à réenvisager la question étatique. Loin de n’être que le relai fonctionnel permettant l’application effective du droit international, l’État devient en effet, par l’intermédiaire de son « appareil interne », un véritable objet de celui-ci. Se développe ainsi, par le biais de cette branche du droit international qu’est le droit international des droits de l’homme, un droit international de l’organisation de l’État. L’obligation structurelle est l’un des outils juridiques permettant cette évolution. Au-delà des seules références que le droit international des droits de l’homme peut faire à l’appareil étatique se développent des obligations internationales destinées à l’organiser d’une certaine façon. Ne pouvant être parfaitement saisies par le biais des typologies d’obligations existantes, une nouvelle typologie reposant essentiellement sur la nature et les effets de telles obligations devait être dressée puis confrontée à la pratique du droit international des droits de l’homme. / Contemporary evolution of international law of human rights leads the doctrine to reconsider the State question. Far from being a mere functional relay allowing an effective application of international law, the State’s ‘internal apparatus’ becomes one of its subject-matter. An international law of States’ domestic organization is therefore developing through this branch of international law. ‘Structural obligations’ is one of the legal tools enabling that evolution. Indeed, beyond simple references to institutional domestic aspects, obligations prescribing how States should organize themselves in order to fully respect their human rights commitments are emerging. These obligations could not be comprehensively described through classical typologies of obligations, so a new one needs to be elaborated and confronted with the international law of human rights practice.

Att människohandel för sexuell exploatering utgör ett brott mot mänskliga rättigheter står klart. Människohandel kränker flertalet av individens rättigheter och staters skyldigheter gentemot dessa individer finns således stadgade i flertalet internationella konventioner. Palermoprotokollet stadgar den första internationellt gemensamma definitionen av människohandel och stadgar vidare ett krav på att definitionen utgör ett brott i konventionsstaternas nationella lagstiftning. Om prostitution anses kränka individers rättigheter och föranleder krav på rättslig reglering är däremot omtvistat, detta trots de likheter som finns. Med utgångspunkt i mänskliga rättigheter syftar uppsatsen, med hjälp av genus- och rättssociologisk teori och metod, att undersöka om prostitution torde omfattas av dessa samt om, och i så fall, vilka positiva skyldigheter stater enligt folkrätten har gentemot personer som befinner sig i prostitution. Detta för att utreda huruvida det är möjligt att kräva att stater kriminaliserar sexköp, antingen för att uppfylla de konventioner som kräver ett förebyggande arbete mot människohandel för sexuell exploatering men även för att leva upp till de åtaganden stater åtagit sig för att motverka den könsojämställdhet, könsdiskriminering och våld som prostitution bevisligen kan innebära. Det finns en tydlig korrelation mellan prostitution och människohandel för sexuell exploatering. Forskning visar att omfattningen av människohandel är högre i stater med legaliserad prostitution samtidigt som både prostitutionen och människohandeln minskat i Sverige sedan sexköpslagen trädde i kraft. Prostitution kan anses uppfylla många delar av det som utgör människohandelsbrottet enligt Palermoprotokollets definition och torde således generellt sett kunna vara en form av människohandel. Således, med hänvisning till krav på förebyggande åtgärder mot människohandel, så torde det kunna krävas att stater kriminaliserar sexköp, inte minst då det bevisligen kan vara ett effektivt sätt att motverka den efterfrågan vilken upprätthåller både prostitution och människohandel för sexuell exploatering. / Whether trafficking for sexual exploitation constitutes a violation of human right is indisputable. Human trafficking violates several individual rights and states' obligations towards victims of trafficking are thus stated in various international conventions. The Palermo Protocol constitutes the first international joint definition of human trafficking and the statute further requires that the definition constitutes a criminal offence in the convention states' national legislation. Whether prostitution is considered a violation of human rights and therefore induce a legal obligations of states is however disputed. Based on human rights, with a gender -and sociological theory of law this study aims to examine whether prostitution also should benefit from these rights and if so, determine the obligations of states under international law towards people in prostitution. Further to investigate whether it is possible to require states to criminalize the purchase of sexual services, either to comply with international conventions that urges prevention of human trafficking for sexual exploitation but also to live up to commitments to discourage the gender inequality, discrimination and violence often included in prostitution. There is a correlation between prostitution and human trafficking for sexual exploitation. Research shows that the scope of human trafficking is higher in states with legalized prostitution, while both prostitution and trafficking for sexual exploitation decreased in Sweden since the Sex Purchase Act came into force 1999. Prostitution is often considered to satisfy several elements of what constitutes trafficking under the Palermo Protocol's definition and could therefore generally be considered a form of human trafficking. Thus, by referring to the many requirements of preventive measures against trafficking it could therefore be argued that states should criminalize purchase of sexual services, as it is proven an effective way to counter the demand that maintains both prostitution and human trafficking for sexual exploitation.