Kigali Declaration and Plan of Action on the Framework for Development in Africa: What Role for National Human Rights Institutions?

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Kigali Declaration and Plan of Action on the Framework for Development in Africa: What Role for National Human Rights Institutions?

Author Carol Chi Ngang

ISSN: 2522-3062
Affiliations: Postdoctoral Researcher, Free State Centre for Human Rights, University of the Free State.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 253 – 278

Abstract

In this article I do a critical analysis of the Kigali Declaration and Plan of Action, which highlights the role of National Human Rights Institutions (NHRIs) in adopting a human rights-based approach for the realisation of the 2030 global agenda for sustainable development and the 2063 African agenda for development. In November 2017, the Network of African National Human Rights Institutions (NANHRI) convened in the Rwandan capital city of Kigali for its 11th Biennial Conference on Human Rights-Based Approaches in Implementing the Sustainable Development Goals (SDGs) and Agenda 2063. The conference had as overall objective to determine how NHRIs could contribute to the realisation of the human rights components contained in framework instruments for development. While the 2030 agenda consists of seventeen goals adopted by the UN General Assembly as the global framework for development intended to be achieved within a timeframe of fifteen years, the 2063 agenda was adopted by the African Union as a continental strategic framework consisting of seven aspirations designed to achieve structural transformation in Africa over a period of fifty years. Because both agendas are in many ways interconnected in their ultimate purpose to make living conditions better for the African peoples, the Kigali Conference anchored on the consideration that implementing the development agendas entails pursuing a human rights-based approach with NHRIs playing a central role. Acknowledging that a rights-based approach to development is needed to effectively redress Africa’s development setbacks; the question is whether NHRIs can effectively achieve this purpose through the human rights-based approach.

The African Justice Scoreboard: A Proposal to Address Rule of Law Challenges in the Resolution of Investor-state Disputes in the Southern African Development Community

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

The African Justice Scoreboard: A Proposal to Address Rule of Law Challenges in the Resolution of Investor-state Disputes in the Southern African Development Community

Author Lawrence Ngobeni

ISSN: 2522-3062
Affiliations: BProc (Witwatersrand) LLM (UP) LLM LLD (Unisa) PhD Candidate (Witwatersrand). Senior Lecturer, Department of Public Constitutional and International Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 21

Abstract

The forum to which investor-state disputes are referred for adjudication is of critical importance. This is because it brings into play factors such as who adjudicates the dispute, which law the forum should apply, the legal consequence of the outcome of the forum, and the remedies available to a losing party in order to challenge the outcome. There are two main forums to which investor-state disputes are referred, namely international arbitration, and litigation before the courts of a host state. International arbitration is the mainstream forum, as investment treaties support it. Both fora have advantages and disadvantages. International arbitration is expensive, it takes time to conclude, and it lacks an appeal mechanism. Litigation faces challenges such as: a poor state of rule of law; there may be no guarantee of an efficient and independent judicial system by a host state; local courts may lack independence; and litigation may take time to conclude, thus resulting in costly litigation. This article evaluates the pros and cons of international arbitration and litigation, and concludes that litigation is indispensable in investor-state dispute resolution, while international arbitration can be necessary in circumstances where the rule of law is poor, although it can be dispensed with where the rule of law is satisfactory. On the other hand, it notes that investors generally prefer international arbitration. In the African context, this article proposes the use of the African Justice Scoreboard as a gateway to the courts of host states. The scoreboard will ensure that investor-state disputes are only referred to the courts of host states that have adequate levels of the rule of law.

The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation is Necessary

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation is Necessary

Author Sandra Ferreira

ISSN: 2522-3062
Affiliations: BLC LLB LLD. Associate Professor, Department of Private Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 22 – 41

Abstract

The Hague Convention on the Civil Aspects of International Child Abduction was developed to protect children internationally from the harmful effects of their wrongful removal or retention. Its primary objective is to secure the prompt return of children wrongfully removed to, or retained in, any contracting state. Where a parent does not voluntarily agree to the return of the child, litigation usually follows. In South Africa, with its overburdened court rolls, litigation is often drawn-out, and often takes a very long time to finalise. If the swift return of an abducted child is not achieved, it may lead to a situation where the protection envisaged by the Hague Convention is compromised. Mediation, which is already part of the legal framework for family disputes in South Africa, has become increasingly popular in Hague Convention disputes. The aim of this article is to consider mediation, not only as an alternative to litigation in Hague Convention matters in South Africa but as a mandatory requirement.

Exploring the Effectiveness of the Rights-Based Approach to Environmental Governance in Cameroon: What Could be Learned from South Africa?

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

Exploring the Effectiveness of the Rights-Based Approach to Environmental Governance in Cameroon: What Could be Learned from South Africa?

Author Jean-Claude N Ashukem

ISSN: 2522-3062
Affiliations: LLD (NWU), LLM (NWU) Maitrise en Droit (Yaoundé), Licence en Droit (Yaoundé).
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 42 – 74

Abstract

The responsibility of citizens to protect their environment goes beyond mere obligations, and extends to providing and enabling access to relevant environmental information through which they can be informed of the impact of activities on their environmental rights. It also involves the creation of mechanisms for inclusion, openness, and participation where citizens would be involved in processes leading to the protection of their environmental rights. The Constitution of the Republic of Cameroon, 1996, expressly recognises the right of everyone to a healthy environment. However, the Constitution and Law No 96/12 on Environmental Management impose the duty on citizens and not on the state to protect the environment. While provisions on the right to access to information and public participation exist in Cameroon’s legal framework, in practice people do not have access to relevant environmental information and are not given a chance to be involved and to participate fully in environmental decision-making processes. In this light, Cameroon’s legal framework appears inadequate and ineffective, and falls short of ensuring and enhancing environmental governance, when analysed through a rights-based lens. This inadequacy has precluded concerned citizens from exercising their right to a healthy environment. It is a hindrance to the advancement of the country’s environmental governance paradigm and could remain so if not properly and urgently addressed. The author compares the Cameroonian experience to the South African experience in order to draw lessons that Cameroon can benefit from. This is necessary because the legal framework in South Africa is more effective than that of Cameroon.

Unwholesome Prison Blues: A Call to Protect International Prisoners’ Rights and Standardise Conditions of Detention

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

Unwholesome Prison Blues: A Call to Protect International Prisoners’ Rights and Standardise Conditions of Detention

Authors Marc Gevers & Gustav Muller

ISSN: 2522-3062
Affiliations: LLB (University of Pretoria). LLM Student in the Department of Private Law, University of Pretoria; LLB LLD (Stellenbosch University), Diploma (Åbo Akademi). Senior Lecturer in the Department of Private Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 75 – 108

Abstract

With an ever-increasing focus on human rights to deal with violations and atrocities across the world, prisoners and their rights are left by the wayside too often. While deprivation of liberty is expected upon incarceration, prisoners are still entitled to certain basic and universal human rights. Despite this, and despite the international community having a set of standard rules, popular opinion and general vindictive behaviour sees prisoners being stripped of their basic human rights. Not only should these rights be afforded to them based on principles of justice, but if rehabilitation is to be rightly effected, then it is essential that standards for the treatment and conditions of detention of prisoners exist – and that these standards are enforced, and not just suggested. As such, a justice system which reacts to violations is inefficient, and the minimum standards in place, which are more like guidelines, need to be replaced by a proactive system and by mandatory international standards that can be effected in any State despite circumstance or resources. Such will result in a prison system that not only maintains and encourages the humanity in prisoners, allowing them to re-enter society, but also humanises society itself.

Tacit Choice of Law in International Commercial Contracts – The Position in Indonesian, Malaysian and Singaporean Private International Law

by | Jun 2, 2021 | CILSA, CILSA V52 I1 2019

Tacit Choice of Law in International Commercial Contracts – The Position in Indonesian, Malaysian and Singaporean Private International Law

Author Garth Jody Bouwers

ISSN: 2522-3062
Affiliations: LLB, LLM (UJ). Lecturer, University of Johannesburg; Research Associate: Research Centre for Private International Law in Emerging Countries, University of Johannesburg.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 109 – 125

Abstract

The Association of Southeast Asian Nations (ASEAN) has achieved remarkable economic progress in recent times. Furthermore, intra-ASEAN trade is considerably larger than any other market for the ASEAN Member States. The growth of international trade and commerce within ASEAN is likely to increase. This will undoubtedly create numerous opportunities for private enterprises in the region to conclude business with one another. As such, the need for certainty regarding the rules and principles of private international law within the organisation’s Member States is imperative. This article analyses choice of law in international commercial contracts in three of ASEAN’s biggest economies, namely Indonesia, Malaysia and Singapore. More specifically, the article examines the determination of a tacit choice of law in Indonesian, Malaysian and Singaporean private international law. Attention is devoted to the level of strictness of the criterion for inferring a choice of law and the factors that have been relied upon, as well as the weight that has been attached to these factors.