Comparative and International Law Journal of Southern Africa-CILSA最新文献

{"title":"Evaluating the Individual Criminal Responsibility of Gukurahundi Perpetrators under International Law","authors":"Siphosami Malunga","doi":"10.25159/2522-3062/11632","DOIUrl":"https://doi.org/10.25159/2522-3062/11632","url":null,"abstract":"The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136024686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Migrant Workers in Seychelles: The Mechanisms in Place to Address Their Work-Related Disputes in the Light of Article 54(2) of the Convention on Migrant Workers","authors":"J. D. Mujuzi","doi":"10.25159/2522-3062/12652","DOIUrl":"https://doi.org/10.25159/2522-3062/12652","url":null,"abstract":"According to the Seychelles Ministry of Employment, as of July 2022, twenty-five per cent of the workforce in Seychelles were migrant workers. In December 1994, Seychelles acceded to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the Convention).  Article 54(2) of the Convention provides that ‘[i]f a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment.’ In 2008, the Seychelles Employment Act (the Act) was amended to establish the Employment Tribunal (the Tribunal) with exclusive jurisdiction over labour matters. Before an employer or worker lodges a grievance before the Tribunal, he/she is required to first attempt mediation before a competent officer in the Ministry of Employment. The Act includes specific provisions applicable to non-Seychellois workers. In this article, the author read the cases decided by the Tribunal between 2008 and September 2022 to establish how it has protected the rights of migrant workers. The author also assesses the mediation provisions under the Act—before competent officers. The findings show that the Tribunal’s approach substantially complies with Article 54(2) of the Convention. The author also illustrates the extent to which Seychelles complies with Articles 1(2), 25, 26, 32, 37, 43(3) 66(2) and 68 of the Convention. However, where necessary, the author suggests ways in which the rights of migrant workers can be better protected. Although there have been a few reported cases of irregular foreign workers in Seychelles, this article is limited to the protection of the rights of regular migrant workers. This is so because the author could not find a case in which the Tribunal or the competent officer dealt with the rights of irregular foreign workers. However, based on the drafting history of the Convention, it is argued that it applies to both regular and irregular workers.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47590691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recognition of a Disgorgement of Profits for Breach of Contract in the United States of America Law: Lessons for South African Law","authors":"KA Seanego","doi":"10.25159/2522-3062/10789","DOIUrl":"https://doi.org/10.25159/2522-3062/10789","url":null,"abstract":"A disgorgement remedy for breach of contract seeks to take away profits acquired through breach of contract. Since contractual damages only seek to compensate the plaintiff for the patrimonial loss suffered due to breach of contract, the law of contract does not generally provide for the disgorgement of profits generated through breach of contract. However, there have been circumstances where the party in breach generates profits as a result of breach contract and the other party does not suffer patrimonial loss. As a result, the plaintiff in these circumstances would not have a remedy against the defendant because he cannot prove patrimonial loss caused by the breach. However, this position is changing. The recognition of disgorgement of profits acquired through breach of contract appears to be gaining acceptance around the world. The United States of America has recognised a disgorgement remedy to take away profits acquired through breach of contract to ensure that the defendant does not gain as a result of his breach of contract. A similar remedy has not yet gained acceptance in South Africa. This study seeks to assess how the United States of America has recognised a disgorgement remedy and draw some lessons for South African law in recognising a similar remedy.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48589326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Need to Engage with African Experiences in the United Nations Sanctioning Process: A Case Study of the Central African Republic","authors":"Vishal Sharma","doi":"10.25159/2522-3062/11345","DOIUrl":"https://doi.org/10.25159/2522-3062/11345","url":null,"abstract":"The United Nations (UN) can impose sanctions by means of regional and other arrangements. History has demonstrated that during the Cold War era in Europe, the UN has imposed fewer sanctions than in the post-Cold War era. Although the UN Charter originally did not provide for the use of sanctions to protect democracy, it did protect international peace and security. However, the UN Security Council (UNSC) and other regional arrangements and communities like the EU and the AU are currently imposing sanctions even on undemocratic regime change, which should be an internal matter of a state. This development shows increased international commitment in favour of democracy. Further, the UNSC and the EU use different approaches than the AU, when removing sanctions. The AU’s approach in removing sanctions is more realistic and pragmatic. A case study of the Central African Republic shows that the UNSC and the EU approaches on sanctions towards African states could be counter-productive. It is advisable that the UNSC should consider African perspectives, by taking AU opinion into account, when imposing, modifying, or removing sanctions on the African continent. It would further increase local acceptance of sanctions, rendering them more effective. It is necessary to understand that problems in African states could have had local origins, but external factors such as international business interests could have aggravated these problems. Therefore, the targeted and smart sanctions will be more effective if international business interests, that help rebels, are also included in sanctions.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43891261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Freedom of Association for Public and Private Sector Employees in Zimbabwe in the Context of International Labour Organisation Standards","authors":"Noah Maringe, Mpfari Budeli-Nemakonde","doi":"10.25159/2522-3062/11107","DOIUrl":"https://doi.org/10.25159/2522-3062/11107","url":null,"abstract":"This article deals with the right of employees to freedom of association in Zimbabwe. It adopts a comparative analysis with the International Labour Organisation’s (ILO) standards on freedom of association. In order to achieve this, lessons are drawn from South African labour law and practice since Zimbabwe’s constitutional provisions on freedom of association are similar to those of South Africa. It begins by discussing important sources of the right to freedom of association under the ILO framework which includes relevant Conventions. Zimbabwe adopted a new constitution in 2013 which incorporates the right of employees to freedom of association and all its components under the Declaration of Rights. This is a significant point of departure in analysing the extent to which Zimbabwe complies with its ILO obligations on freedom of association. The constitution applies to both public and private sector employees. However, pieces of legislation which give effect to the constitutional right to freedom of association create a two-tier labour relations system where public sector employees have different laws which govern them. On the other hand, private sector employees fall under the Labour Act. This necessitates a separate consideration of the key provisions which have a direct impact on the enjoyment of the right of employees to freedom of association in Zimbabwe in order to test their constitutionality.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44204207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Implementing International Law and Policy to Combat Marine Corruption: How Can African Coastal Cities Help?","authors":"Johandri Wright","doi":"10.25159/2522-3062/10431","DOIUrl":"https://doi.org/10.25159/2522-3062/10431","url":null,"abstract":"Oceans are central to the healthy functioning of the Earth’s biosystem, contributing to climate stability and harbouring valuable food resources. Marine corruption is one of the greatest threats to the healthy functioning and conservation of marine resources. Since local authorities offer many viable solutions to some of the problems associated with rapid urbanisation and globalisation, such as marine corruption, it is argued that states should work with their coastal cities to control corruption and improve the sustainable use of marine resources. This article explores how African coastal cities can contribute to the implementation of international law and policy to combat marine corruption. African regional law provides that cities should have sufficient autonomy to regulate and manage their local affairs. It is also argued that because of the nature of marine corruption, coastal cities are in the best position to contribute to addressing it. This means that national governments, at least from the perspective of African regional law, should grant coastal cities the necessary powers and capacities to do so. The article discusses the measures under international law that can be used to control marine corruption. These measures include those contained in anti-corruption laws and those primarily aimed at the sustainable use of marine resources. A case study of Walvis Bay, in Namibia, is used to show what coastal cities can do to control marine corruption.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47790590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Assessing the Effectiveness of Extradition and the Enforcement of Extra-territorial Jurisdiction in Addressing Trans-national Cybercrimes","authors":"Phenyo Sekati","doi":"10.25159/2522-3062/10476","DOIUrl":"https://doi.org/10.25159/2522-3062/10476","url":null,"abstract":"Cyberspace operates on a geographically borderless platform, thus often rendering national laws ineffective in regulating the impact of cyber-related activities outside South African borders. Recognising this issue, South Africa adopted the Cybercrimes Act, which permits the exercise of extra-territorial jurisdiction over trans-national cyber-related offences. The enforcement and effectiveness of extra-territorial jurisdiction and extradition law have, however, proven to be challenging and controversial in the international sphere. Issues such as internet fragmentation, contrasting municipal laws, and uncoordinated regulatory actions across state boundaries have undermined existing provisions regulating trans-national cybercrimes. These issues are furthered by the increased recognition of human rights, such as the right to privacy, which has deterred international cooperation and collaboration as states are subsequently required to subject their own citizens and entities to increased interception and scrutiny. The main thesis of this investigation is aimed at reviewing the practical implications surrounding the enforcement of extra-territorial jurisdiction and extradition law over trans-national cybercrimes. To this end, states are implored to develop both domestic and multilateral cybercrime laws and to improve existing enforcement mechanisms outlined in extradition law and mutual assistance agreements. ","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49012324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Property Rights Protection and Land Markets in the Context of Juridical Gaps between Municipal and SADC Systems","authors":"Philani L Ndlovu, A. Saurombe","doi":"10.25159/2522-3062/7855","DOIUrl":"https://doi.org/10.25159/2522-3062/7855","url":null,"abstract":"The protection of property rights is a sensitive issue in the SADC, leading to protracted legal battles and contestations. This article explores the factors engendering the present configurations of property relations in three selected states in the region. The intention of this article is to identify the factors necessary for the development of land markets and to analyse secondary sources on themes, arguments and factors shaping market development. Interrogating the major themes in the prevailing debates, this article identifies African customary rights as an important factor in the development of markets, by acknowledging the significance of the harmonisation of property laws in the region. Since there are cross-juridical gaps between the regulatory goals of states and those of regional communities, the article identifies limitations and opportunities associated with efforts to harmonise the law. Furthermore, proposing measures to narrow the juridical gaps between the municipal and SADC systems, and presenting the idea of a regional protocol as a prospective device to ensure legal convergence.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49254466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Myth and Murder: The African Human Rights System and Persons with Albinism","authors":"Bright Benjamin Nkrumah","doi":"10.25159/2522-3062/9798","DOIUrl":"https://doi.org/10.25159/2522-3062/9798","url":null,"abstract":"The African human rights system was born after the adoption of the African Charter on Human and Peoples’ Rights in 1981. The document codifies a set of rights to which citizens are entitled, as well as responsibilities to which states must comply. The clarity with which the document calls for adequate protection for Africans was informed by acts of atrocities suffered by the continent’s population, and the possible recurrence of these acts. To this end, the Charter inspired the establishment of monitoring bodies to ensure states do not stray from the document text. Yet, despite the ground-breaking provisions of the instrument and its supporting institutional architecture, a section of the continent’s population continues to bear the brunt of atrocities because of their skin colour. These individuals are Africans with albinism. As the African Charter commemorates its fortieth anniversary, the paper seeks to survey the extent to which the instrument entrenches the rights of these persons and what steps have been taken or ought to be taken to ensure their rights to equality and adequate protection.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41636568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prospects and Challenges of Embedding the Human Right to Food Obligations into the Legal Framework for International Agricultural Trade Regulation","authors":"Shelton Mota Makore, P. Osode, N. Lubisi","doi":"10.25159/2522-3062/10247","DOIUrl":"https://doi.org/10.25159/2522-3062/10247","url":null,"abstract":"Although many academic commentators have long argued that the World Trade Organization (WTO)-driven liberal rules of international agricultural trade regulation have a negative effect on the enjoyment of the human right to food, especially in developing countries, there is still a dearth of scholarship offering proposals to ameliorate the situation. This article fills this gap by presenting a discussion of the possible avenues for accommodating the food security-related human rights obligations of states in the extant legal framework for international agricultural trade regulation. It argues that such a development, among other measures, is a plausible response to the problem of food insecurity endemic in developing countries and which manifests in international agricultural trade regulation. The article contends that for the WTO to effectively address the human right to food concerns of developing countries, the free trade regulations, as practised in international agricultural trade, must be complemented with the human right to food as a supreme norm sine qua non lege. It is concluded that this eminently desirable outcome can be achieved through the assimilation of the human right to food into the ‘public morals clause’ of Article XX of the GATT, reading the human right to food into the Agreement on Agriculture, adopting some WTO Ministerial Conference proposals, re-configuring some WTO dispute settlement practices, and lastly, by adopting the proposal of the UN Special Rapporteur on the human right to food.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2022-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45909433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}