The proposed African Court on Human and Peoples' Rights is an important development in the history of Africa. For the first time, there will be a regional judicial mechanism for the adjudication of human rights issues. The difficulty may lie in the manner in which the Court applies its discretion in relation to the doctrine of margin of appreciation and derogations. As a subsidiary body that has a power of review, the Court must tread warily when applying these principles. Lessons may be learnt from the well established European Court of Human Rights which has applied and developed the doctrine of margin of appreciation and has had occasion to examine the manner and extent of derogations from the European Convention. Applying this knowledge in an African context is important, but there must be discretion in that application that takes the particular circumstances of Africa into account. / Thesis (LL.M.)-University of Durban-Westville, 2003.

Magister Legum - LLM / This research paper examines whether the International Criminal Court has the competence to compel the appearance of witnesses before it, and if the States Parties to the Rome Statute have an obligation to serve and enforce a witness summons issued by the Court. In December 2013 the Office of the Prosecutor requested the International Criminal Court to summon witnesses and ascribed to the Court the power to order some States Parties to enforce witness summonses. The defence counsel in the particular case and the Kenyan government, the requested State Party, opposed the request. In April 2014 Trial Chamber V (A) of the International Criminal Court delivered a decision on that matter in which it found that it had indeed the power to compel witnesses and to order Kenya to enforce the summonses. The decision was confirmed on appeal in October 2014. This paper analyses the issue with reference to the decision of the Trial Chamber, the judgement of the Appeals Chamber, and the assertions by the parties in the present case. It also introduces other approaches on how to deal with this issue. The paper essentially analyses the text of the Rome Statute, the history of its drafting, and compares the enabling laws and jurisdictional competence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone with regard to the theme under discussion. The paper furthermore analyses how the domestic laws of some states deal with the matter. Finally it examines the measures that the ICC can implement to enforce its orders.

This thesis determines and examines the obstacles to Saudi women's right to work in terms of religious and cultural barriers and limited access to higher education through an analysis of Sharia sources, Saudi domestic law and international human rights treaties pertaining to Saudi women's right to work in the Kingdom of Saudi Arabia. It also delineates the provisions for women's right to work in Sharia and Saudi domestic law in the public and private sectors. The thesis also examines the reservations that the Kingdom of Saudi Arabia has entered into, and some of the international human rights treaties it has ratified, with a particular focus on the application of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It also examines Saudi Arabia's obligations under International Labour Organization (ILO) Conventions. In the context of Saudi domestic law, it identifies obstacles that underlie Saudi Arabia's decision not to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR); it examines the arguments for the Kingdom of Saudi Arabia signing up to the ICESCR; and it examines Saudi Arabia's obligations to respect, protect and fulfil women's right to work under CEDAW. The protection of women's right to work under customary international law, by its sources will be explored. This section will look through customary international law elements; whether or not women's right to work is protected. Finally, the thesis provides recommendations for action which can be taken by the Kingdom of Saudi Arabia to provide Saudi women with equal rights to work. It also makes recommendations concerning ratified and pending international human rights treaties which have the capacity to protect Saudi women's right to work.

Thesis (MPA.) --University of Limpopo, 2015 / Refer to the document

Human Trafficking involves the various forms of coercion and force against millions of individuals all over the world into situations of unpaid labor, sexual exploitation, and organ sales. Attention to the phenomenon is relatively new and there is complexity both in how to address it and study it. When looking at human trafficking, issues of development, poverty, immigration, gender, international cooperation, social stigma, among others, are considered. The purpose of this research paper is to compare and analyze local law interpretations of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, or just "the Palermo Protocol", in a sample of countries who have ratified the international agreement. The countries selected for analysis vary from each other in how they stand as dominant "origins" or "destinations" of human trafficking and how well they do in eradicating the problem as categorized by the United States Trafficking in Persons Report (US TIP Reports) "Tier" statuses. Through asking a set of questions of each law, trends are revealed. The study found that local law documents used many elements from the Palermo Protocol to frame their documents; there were fewer differences than expected. The major differences were in how laws were integrated into the existing legal framework or if a comprehensive separate act was defined. Implications and the role of morality politics and nongovernmental organizations (NGOs) are theorized. Many studies in this field are laden with ever changing statistics, very specific case studies, or material that speaks to how the situation is stigmatized. All contribute to deeper understanding, but by objectively looking at how the major international mechanism works at a local level we may inch towards learning more about how the issue continues to pervade globally.

1 Abstract Spread of International Law into Decision-Making Practice of Domestic Authorities In principle international law does not impose its subjects how to achieve compliance with its international legal obligations within their jurisdiction. However, for the effectiveness of international law in each country it is the approach of legislative, executive and judiciary authorities to international obligations that is vital. The thesis focuses mainly on the judiciary, while the issues of international law application by the domestic courts have not yet been at full length described. Part One is an introduction which describes the subject of the work methodology and terminology used in its processing. The first main aim of the thesis was to examine in detail legal rules for the application of international law as they result from both constitutional and ordinary law. These rules constitute a framework within which institutions applying international law deal with it. The third part of the thesis is mainly dedicated to fulfilment of the first main aim, it is entitled The Current Application of International Law by National Authorities of the Independent Czech Republic and the Development of this Legislation. But partially also the second part, entitled Historical Development of Binding Force of International...

Le Code pénal consacre au sein de son Livre IV une section intitulée « Des manquements au devoir de probité », héritage de l’ancienne forfaiture. La catégorie n’a cessé d’évoluer au plan interne, appuyé par le droit pénal international, puisque ce ne sont pas moins de six conventions pénales qui l’influencent aujourd’hui. Il en ressort un véritable foisonnement normatif qui repose pour l’essentiel sur l’incrimination. Son étude méthodique permet d’observer un droit pénal arraché de son ultima ratio, mettant à mal sa fonction dissuasive. La pédagogie du Code pénal est également atteinte à l’heure où les manquements visés n’annoncent plus clairement ce qu’ils répriment. Dans ce contexte, depuis 2013, le législateur a fait de l’exemplarité la toile de fond des manquements au devoir de probité. Au-delà de l’affichage individuel, le travail de recherche invite à s’interroger sur la mise en œuvre d’une telle fonction par le droit pénal. Un « manquement » a une connotation morale plus forte que la violation d’une règle juridique. Un « devoir » suppose une règle plus sociale qu’une simple obligation. C’est dire que la répression entend punir un « faire-valoir », pour donner une consistance à la chose publique dans laquelle la société croit et dont les personnes exerçant une fonction publique sont les gardiens. Ces incriminations moralisatrices resserrées autour d’une responsabilité pénale à fondement social permettent de faire apparaître la pénalité sous un nouveau jour. En se recentrant sur son application, la thèse redécouvre ainsi la fonction d’exemplarité du droit pénal. / Book IV of the Criminal Code is devoted to a section entitled « Failures in the duty of probity », formerly referred to in French law as « forfaiture », i.e. serious abuse of office. This category has constantly evolved in domestic law, under the influence of international criminal law, since today it is concerned by no fewer than six criminal law conventions. The result is a veritable proliferation of legislation based mainly on the creation of offences. Its systematic review reveals criminal law torn from its ultima ratio, undermining its dissuasive function. The educational aspect of the Criminal Code is also diminished when it is no longer clear what is repressed in the targeted failures. In this context, since 2013, legislation has set failures in the duty of probity against the backdrop of exemplarity. Going beyond an individual stand, this research invites us to question such an approach by criminal law. « Failure » has a moral undertone greater than the breach of a legal rule. A « duty » implies a rule more social than a simple obligation. This means that repression intends punishing a « foil », which, by contrast, gives substance to the public good in which society believes and for which individuals performing a public function are the guardians. These moralising regulations to punish defined offenses, based on the notion of socially-founded criminal responsibility, allow the penalty to be seen in a new light. By refocusing on its application, the analysis thus rediscovers the function of exemplarity in criminal law.

The object of this thesis is to investigate the application of international law in municipal law, and more specifically to focus on international human rights law. A determination of the sources of international human rights law constitutes the point of departure. Treaties are the primary source of international human rights law, followed by customary law. Recent authority indicates that the formation of customary human rights law differs from that of customary international law in general. There are, however, also international documents on human rights not falling within the scope of the traditional sources as embodied in section 38 of the Statute of the International Court of Justice. Non-binding sources of law, or soft law - most notably the Universal Declaration of Human Rights - are shown to play an important role in the formation of both treaties and custom and directly influence state practice. Theoretical explanations expounding the application of international law in the domestic law of states are examined, assessing their suitability for effective implementation of international human rights instruments. Since the application of international law in municipal law depends on, and is regulated by rules of domestic law, the relevant rules of legal systems which may, due to historical factors or regional proximity, impact on South Africa, are examined. State practice points to two primary methods of dealing with international law obligations in domestic law, namely transformation (associated with the dualist theory) or direct application (associated with the monist theory). The specific method of incorporation adopted by a state is often closely related to that state's constitutional system. The advantages and disadvantages associated with each particular method are related to the intricacies of individual legal systems. From an internationalist perspective the often misunderstood doctrine of direct application, has the advantage of making the intended protection afforded by human rights treaties to individuals directly enforceable by domestic courts with a minimum of state intervention. The position of international law in South Africa is assessed against this background. South Africa's constitutional history under British rule followed British law requiring legislative transformation of treaty obligations, but permitting customary law to be directly incorporated into common law. The position of international law became constitutionally regulated in South Africa with the introduction of a constitutional democracy. Drafting errors and practical difficulties experienced with the 1993 Constitution, were largely ironed out by the 1996 Constitution. The post-apartheid Constitutions introduced changes and new dimensions compared to the pre-1993 position of international law, including: the consideration of international law when interpreting the constitutionally protected human rights; the involvement of the legislature in the treaty-making process; and provisions for both transformation and direct application of treaties subject to the provisions of the Constitution. Customary international law is confirmed as forming part of South African law, and courts are obliged to interpret legislation in accordance with international law. An analysis of court decisions after 1993 reveals the following broad trends: (i) The impact of international law as part of South African law is still largely overlooked. (ii) The majority of references to international law by the courts are to international human rights agreements and decisions by international tribunals under section 39 of the Bill of Rights. (iii) The distinction between international law and comparable foreign case law, as directed by section 39, is often blurred. (iv) No distinction is made between international hard and soft law when deciding on human rights matters. (v) Courts have refrained from applying international human rights obligations which form part of South African law because they are self-executing or form part of customary international law. (vi) Binding international human rights obligations are only referred to for comparative purposes. (vii) The term "treaty" is interpreted in accordance with the definition of the Vienna Convention on the Law of Treaties. The intention to create legally binding obligations is therefore implicit. It has been the policy of the post-apartheid South African government to ratify or accede to the major international human rights agreements as swiftly as possible. The execution of this policy has, however, met with numerous problems. As a result, South Africa has to date not become party to the International Covenant on Economic Social and Cultural Rights. Many treaties to which South Africa is a party have not yet been incorporated into South African law and compulsory reports on the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Civil and Political Rights are overdue. Despite the post-apartheid euphoria about the creation of a human rights culture in South Africa and the formal commitment by government to give effect to international human rights instruments, much remains to be done before South Africa can be regarded as formally complying with international human rights standards. / Law / LL. D. (Law)

Cette étude fait valoir, par l’incorporation du droit international et son application dans le système national islandais, illustré par les jugements de la Cour suprême d’Islande, que les limites posées par l’approche dualiste traditionnelle, tels que présentés communément dans la littérature académique islandaise, ont été poussées à leur extrême. On affirme que le principe de dualité des juridictions, tel qu’il est défini dans la littérature juridique, ne décrit pas de façon adéquate le lien réel et important entre le droit international et la loi nationale comme cela apparaît dans les « techniques d’incorporation interprétatives » effectivement utilisées par les cours islandaises. Notre étude fait valoir que l’impact substantif et normatif du droit international non incorporé comporte des éléments de l’approche moniste, se révèle plus complexe et excède de loin la simple description générale du principe dualiste. / This study argues that, by the incorporation of international law into the Icelandic national system and its application on the domestic level, in particular as it appears in the judgments of the Supreme Court of Iceland, the limits set by the traditional dualist approach, as commonly presented in Icelandic academic literature, have been stretched to its outer limits. It is argued that the dualist principle, as defined and described in the legal literature, does not adequately describe the real and substantive relationship between international law and national law as it appears in the „interpretive incorporation techniques“ actually used by the Icelandic courts. It is argued that the real substantive and normative impact of unincorporated international law bears clear elements of the monist approach and is more complicated and far exceeds what is implied in the general description of and reference to the dualist principle.

The object of this thesis is to investigate the application of international law in municipal law, and more specifically to focus on international human rights law. A determination of the sources of international human rights law constitutes the point of departure. Treaties are the primary source of international human rights law, followed by customary law. Recent authority indicates that the formation of customary human rights law differs from that of customary international law in general. There are, however, also international documents on human rights not falling within the scope of the traditional sources as embodied in section 38 of the Statute of the International Court of Justice. Non-binding sources of law, or soft law - most notably the Universal Declaration of Human Rights - are shown to play an important role in the formation of both treaties and custom and directly influence state practice. Theoretical explanations expounding the application of international law in the domestic law of states are examined, assessing their suitability for effective implementation of international human rights instruments. Since the application of international law in municipal law depends on, and is regulated by rules of domestic law, the relevant rules of legal systems which may, due to historical factors or regional proximity, impact on South Africa, are examined. State practice points to two primary methods of dealing with international law obligations in domestic law, namely transformation (associated with the dualist theory) or direct application (associated with the monist theory). The specific method of incorporation adopted by a state is often closely related to that state's constitutional system. The advantages and disadvantages associated with each particular method are related to the intricacies of individual legal systems. From an internationalist perspective the often misunderstood doctrine of direct application, has the advantage of making the intended protection afforded by human rights treaties to individuals directly enforceable by domestic courts with a minimum of state intervention. The position of international law in South Africa is assessed against this background. South Africa's constitutional history under British rule followed British law requiring legislative transformation of treaty obligations, but permitting customary law to be directly incorporated into common law. The position of international law became constitutionally regulated in South Africa with the introduction of a constitutional democracy. Drafting errors and practical difficulties experienced with the 1993 Constitution, were largely ironed out by the 1996 Constitution. The post-apartheid Constitutions introduced changes and new dimensions compared to the pre-1993 position of international law, including: the consideration of international law when interpreting the constitutionally protected human rights; the involvement of the legislature in the treaty-making process; and provisions for both transformation and direct application of treaties subject to the provisions of the Constitution. Customary international law is confirmed as forming part of South African law, and courts are obliged to interpret legislation in accordance with international law. An analysis of court decisions after 1993 reveals the following broad trends: (i) The impact of international law as part of South African law is still largely overlooked. (ii) The majority of references to international law by the courts are to international human rights agreements and decisions by international tribunals under section 39 of the Bill of Rights. (iii) The distinction between international law and comparable foreign case law, as directed by section 39, is often blurred. (iv) No distinction is made between international hard and soft law when deciding on human rights matters. (v) Courts have refrained from applying international human rights obligations which form part of South African law because they are self-executing or form part of customary international law. (vi) Binding international human rights obligations are only referred to for comparative purposes. (vii) The term "treaty" is interpreted in accordance with the definition of the Vienna Convention on the Law of Treaties. The intention to create legally binding obligations is therefore implicit. It has been the policy of the post-apartheid South African government to ratify or accede to the major international human rights agreements as swiftly as possible. The execution of this policy has, however, met with numerous problems. As a result, South Africa has to date not become party to the International Covenant on Economic Social and Cultural Rights. Many treaties to which South Africa is a party have not yet been incorporated into South African law and compulsory reports on the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Civil and Political Rights are overdue. Despite the post-apartheid euphoria about the creation of a human rights culture in South Africa and the formal commitment by government to give effect to international human rights instruments, much remains to be done before South Africa can be regarded as formally complying with international human rights standards. / Law / LL. D. (Law)