<p>The aim of this research is to ask questions as to why child right laws for the protection of child soldiers have failed to protect children in the Darfur region of Sudan despite the<br /> fact that Sudan is a member to many of these children&rsquo / s rights instruments. Can conflict transformation therefore be of any help? This is research seeks to address the question posed above.</p>

Doctor of Philosophy / The hypothesis of this work is that international human rights law and not international humanitarian law is the legal framework that applies to United Nations (UN) peacekeeping operations in collapsed States where the peacekeepers do not become a party to an armed conflict. In order to test this hypothesis the work begins by examining what is meant by peacekeeping and charts the evolution of peacekeeping from its origins as a passive ad hoc activity to the modern highly complex operations capable of providing the foundations for the recreation of civil society. Chapter two of the work builds on the first chapter by analysing the UN’s theoretical approach to peacekeeping through its major reports. This chapter provides insight into the development of peacekeeping as a theoretical construct and then into a central tool in the UN’s attempt to implement the Charter. Chapters three and four analyse peacekeeping as practiced by the UN in operations conducted under Chapters VI and VII of the UN Charter. This analysis leads to the conclusion that as a matter of practice the UN and the State parties that have provided the troops to perform peacekeeping under UN control have acted in accordance with international human rights law and that as a result there is evidence of State practice to support an argument that as a matter of customary international law international human rights law applies as the framework for peacekeeping in collapsed States. With a clear grounding in the practice and theory of peacekeeping the work then examines the competing claims of international humanitarian law and international human rights law as the legal framework for peacekeeping operations. Suggestions are made with regard to the triggers for international humanitarian law to apply and the conclusion is drawn that the vast majority of UN operations between 1949 and 2003 were conducted beneath the threshold for the application of international humanitarian law. The final chapter of the work analyses the practical application of a human rights framework to peacekeeping and concludes that it provides a flexible and adaptive tool for the restoration of peace and the reconstruction of civil society. As a result of the analysis of UN peacekeeping theory, practice and the competing claims of international humanitarian law and international human rights law, the work concludes that international human rights law provides the framework for UN peacekeeping in collapsed States and that international humanitarian law will only apply where peacekeepers cross the threshold into armed conflict.

Teilw. zugl.: Zürich, University, Diss., 2006 u.d.T.: Melzer, Nils: Targeted killing under the international normative paradigms of law enforcement and hostilities. / Includes bibliographical references (p. [445]-458) and index.

Magister Legum - LLM / South Africa

In this study, a legal analysis is presented of the responsibility of the RPA,1 FDLR,2and FAZ3 for military operations conducted by them during the two Congo Wars (Congo War I and II) in the Democratic Republic of the Congo.4 In particular, an enquiry will be undertaken into the lawfulness of the killing of Rwandan refugees during these military operations. This will be achieved by looking at the requisite International Humanitarian Law and International Human Rights Law governing the protection of refugees in relation to the conduct of hostilities. Specific emphasis will be placed on the prevailing facts and circumstances relevant to the killing of refugees during the wars, and evidence provided by key witnesses will be relied upon to shed light on the situation on the ground. The study will examine the legal implications of the actions of the parties involved. It will look at who should be held accountable for the violations of Human Rights and Humanitarian Law in relation to the killing of refugees. Finally, certain recommendations will be made to address the deficiencies in the law in relation to the protection of civilian, especially refugees during armed conflict. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

The apparent normative and implementation gaps within the international refugee protection regime suggest the need to reform its implementation and accountability processes. Increasingly, the focus is being shifted to local or domestic actors to attempt to address the challenges faced in realising refugee rights effectively. Among the key domestic accountability actors for the realisation of rights, are national human rights institutions (NHRIs). NHRIs are considered a bridge between the international and domestic human rights systems. NHRIs act as entities that facilitate the diffusion of international human rights norms and standards, including those with respect to refugee rights, into the national spheres. Notwithstanding this, there is paucity in empirical evidence within the refugee rights discourse on the role that NHRIs can play to promote the effective realisation of refugee rights. This study explores the role that NHRIs in South Africa and Kenya play in promoting and protecting refugee rights. It utilises a non-doctrinal and qualitative research approach, to examine the extent to which the NHRIs engage with refugee rights and to explore their capacity to do so effectively. It situates NHRIs within the nexus between international human rights law and international refugee law to frame the understanding for their role within the refugee protection regime. The findings indicate that the NHRIs in South Africa and Kenya that are compliant with the Paris Principles display significant engagement with refugee rights promotion and protection. As accountability mechanisms, they have contributed to the development and implementation of domestic refugee law and policy in accordance with international norms and standards. This has occurred despite the lack of an explicit refugee rights' promotion and protection mandate, but they face barriers and challenges. Various underlying factors that impede their effectiveness to address refugee rights were identified. These included the sociopolitical contexts within which they operate, capacity constraints and invisibility within the refugee protection regime. The socio-political challenges included xenophobia and the securitisation of the asylum space. These compounded organisational and operational weaknesses such as scarce specialist skills in refugee law, limited financial resources, and the absence of strategic and sustained partnerships for refugee rights protection. The overall absence of norms for NHRI engagement with refugee rights was identified as a contributory factor for the lack of a coherent approach for promoting and protecting these rights. Possible avenues to enhance NHRI engagement with refugee rights were identified. For instance, NHRIs building partnerships for refugee rights promotion and protection with CSOs, the UNHCR and regional institutions based on a clear understanding of an NHRI's role as accountability mechanisms. For NHRIs, the imperative lies in building their capacity to address refugee rights to ensure a clear understanding of what the promotion and protection of these rights entails.

Climate change poses major threats to human life in the form of food and water shortages, health issues, loss of property and more. Climate change amplifies existing environmental, social, economic and political challenges and has increased the risk of displacements, accelerates social injustices, inequalities, and threatens human rights, including the right to life itself. Consequently, States can no longer overlook their obligations to effectively address climate change to safeguard human rights. States have agreed to mobilize stronger and more ambitious climate actions. However, their pledges on carbon emission caps, adaptation practices and climate change funds under the Paris Agreement, are not as ambitious as they ought to be. The aim of this research to assess the value and effectiveness of climate litigation as a substantial form of climate action to safeguard human rights. This research reveals that there has been a significant increase in climate litigation procedures and outcomes which reflect multiple ways in which climate litigation has influenced States to enhance and adopt laws to increase climate action on mitigation and adaptation practices. This research also reveals that climate litigation is amplified through public and civil society mobilisation as well as collaboration efforts between lawyers, scientists and activists across the world, and it is recognised as a valuable tool for those who seek accountability and justice for climate-induced harms. / Mini Dissertation (LLM)--University of Pretoria, 2020. / Centre for Human Rights / LLM / Unrestricted

The 21st century has witnessed a radical change in the status of sexual minorities, the world over, with this change having a profound impact in the global North, in particular. A series of landmark United Nations, regional and national court decisions, inspired by the increasing effective lesbian, gay, bisexual, transsexual (LGBT) lobby, are progressively announcing the end of institutionalised discrimination which had been the lot of homosexual persons for centuries in many part of the world. However, while there has been a statutory shift towards the welcoming of homosexual persons in the West and in parts of Latin America, thus gradually recognising the injustice synonymous with discrimination on the basis of sexual orientation, African states remain less likely to respect homosexual persons' rights. The Nigerian LGBT experience exemplifies the regressive position in many African states. Not only have laws been enacted that criminalise homosexuality in Nigeria; existing laws have in 2014 been strengthened by newer, ever more stringent anti-homosexuality legislation. The most notable anti-homosexuality law is the Same-Sex Marriage (Prohibition) Act, (SSMPA) 2013, signed into law in January 2014 by then President Goodluck Jonathan. Unlike the anti-sodomy provisions in the criminal and penal codes inherited from the British colonial rulers and the provisions of the Sharia legal codes in operation in some of the states of northern Nigeria, the controversial SSMPA explicitly criminalises same-sex marriage and goes further by also criminalising broader categories of homosexual related conduct throughout the territory of Nigeria. This thesis argues that Nigerian laws criminalising consensual adult homosexual conduct prima facie violate the human rights provision of the Nigerian Constitution and Nigeria’s international law obligations. The thesis takes a holistic view of the major cultural, religious and moral arguments proposed by opponents of sexual minority rights in their efforts to justify the continued discrimination of homosexual persons and same-sex consensual sexual conduct in Nigeria. The study aims to contest the validity of these arguments by presenting a case for the decriminalisation of homosexual acts in Nigeria through such instruments as judicial intervention, legislative enactment, executive action and sexual minorities’ rights activism. This study highlights the fact that people do not choose their sexual orientation and that consensual adult homosexual conduct is no more inherently harmful to others than heterosexual acts. Contrary to the widespread belief in Nigeria that consensual adult homosexual conduct is based on imported Western values, this study underlines that homosexuality has been an undeniable fact of human existence predating colonialism – also in what today is Nigeria. In this regard, by demonstrating the surprising tolerance toward homosexuals in pre-colonial Idomaland, this study further confirms the notion that consensual adult homosexual conduct is not a Western import. In the process, this study sheds new light on pre-colonial attitudes to homosexuality in Idomaland, North Central Nigeria, where no prior field research has been conducted. The study further discredits the religious objection to consensual adult homosexual conduct by adopting a contextual reading of Islam and Christianity, the two dominant religions in Nigeria, thus allowing for the co-existence of religious beliefs and the protection of sexual minorities. This study affirms that the moral objection to consensual adult homosexual acts fails for the very reason that such practices do not cause harm to either society or other individuals. This study fits Isaiah Berlin’s conception of liberty as individual autonomy into the argument for the liberalisation of Nigerian sexual minorities’ environment. The application of Berlin’s concept of negative liberty to the Nigerian homosexual environment supports the affirmation of sexual minority rights as fundamental human rights. / Thesis (LLD)--University of Pretoria, 2018. / Centre for Human Rights / LLD / Unrestricted

Micro country-level research on why Ghana continues to hold on to a colonial-era law that criminalises sex between consenting adults of the same sex is critical to understanding the unique phenomena of homophobia and violations of sexual minority rights in Ghana. Ghana has not decriminalised the offence of ‘unnatural carnal knowledge’, a law that targets homosexual sex, which it inherited from British colonial administrators in 1892, despite calls by international human rights bodies and Ghana’s own admission that such laws fuel violations of sexual minority rights. The fundamental barriers to the decriminalisation of consensual same-sex sexual acts between adults in private in Ghana are religion, culture, and politics. Through the lens of decolonisation, Sankofa, as well as purposive and transformative constitutionalism theories, the thesis argues that the current religious, cultural and governance architecture in Ghana are colonial legacies that subjugated indigenous religious, cultural, and governmental institutions and replaced them for more than a century with Victorian-era structures and institutions of the colonial administrators. In order to overcome this colonial-era law, structures, and barriers to decriminalisation, which many Ghanaians unknowingly or mischievously claim as their own, there is a need for the decolonisation of colonial-era thinking and structures. The 1992 Constitution of Ghana provides for a Bill of Rights, an independent judiciary, and the Supreme Court of Ghana, whose jurisprudence upholds the rights of individuals to non-discrimination, dignity, privacy, and association. Apart from religion, culture, and politics, a major obstacle to decriminalising sodomy law in Ghana is the legal culture and socio-political environment in Ghana. The judiciary is part of a society that abhors homosexuality and proclaims that because most Ghanaians oppose same-sex relationships, Ghana should not amend its Constitution to embrace sexual minority rights. The Supreme Court has declared laws that are inconsistent with constitutional rights to non-discrimination, association, dignity, and privacy as unconstitutional. Although the Constitution of Ghana does not prohibit discrimination based on sexual orientation, the Supreme Court can overcome the barriers of religion and culture by extending its jurisprudence on the right to non-discrimination, association, dignity, and privacy to include sexual minority rights. Through a broad, purposive, and transformative approach to interpreting the Bill of Rights, the Supreme Court can draw a line between Ghana’s colonial past and the present era of constitutionalism and constitutional rights by declaring sodomy law as unconstitutional. The Supreme Court may also overcome the negative limitations of the current Ghanaian legal culture and socio-political pressure by looking to pre-colonial Ghanaian cultures that embraced same-sex sexuality for guidance. Like the proverbial Sankofa bird, the Supreme Court may, besides looking back to pre-colonial Ghanaian cultures, also fly forward to adopt decisions of foreign domestic and international courts of this modern era to endorse constitutional morality over majority morality in a Ghanaian secular state. / Thesis (LLD)--University of Pretoria, 2021. / University of Pretoria, Postgraduate Merit Award (Academic Associate) / Centre for Human Rights / LLD / Unrestricted

Magister Legum - LLM / The Universal Declaration on Human Rights (UDHR) provides that „everyone has the right to nationality.‟1 Nationality2 refers to the legal relationship between a State and an individual.3 The consequences are that this legal relationship gives rise to obligations and rights conferred by the State on these individuals. Statelessness occurs when an individual has no nationality of any country; a stateless person is someone who is not considered as a national by any State under the operation of its laws.