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The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach 津巴布韦宪法第75(1)(a)条的范围和内容:国际法方法
IF 0.1 Q4 LAW Pub Date : 2020-11-21 DOI: 10.25159/2522-3062/6890
Chiedza Simbo
Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.
尽管最近颁布了《津巴布韦宪法》,规定了接受基础教育的权利,但让人想起失败的基础教育系统的投诉破坏了津巴布韦的教育系统。尽管政府明显侵犯了接受基础教育的权利,但没有人因政府不遵守第75(1)(a)条的宪法义务而将政府告上法庭,政府也没有承认任何失败或错误行为。最终出现了两个问题:州政府是否知道遵守第75(1)(a)条意味着什么?公民知道津巴布韦宪法第75(1)(a)条规定的权利范围和内容吗?虽然2020年修订的《津巴布韦教育法》解决了与《宪法》第75(1)(a)条有关的一些方面,但它仍然没有提供符合国际法的基础教育权的范围和内容,法院也没有做出任何澄清。本条采用国际法方法,提出了第75(1)(a)条的范围和内容。
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引用次数: 0
National Human Rights Institutions and Sustainable Development with Specific Reference to Selected African Examples 国家人权机构与可持续发展——具体参照非洲的一些例子
IF 0.1 Q4 LAW Pub Date : 2020-08-14 DOI: 10.25159/0010-4051/7299
J. Mubangizi
That National Human Rights Institutions (NHRIs) play an important role in the protection and promotion of human rights is a well-known fact. This has been widely acknowledged by the United Nations (UN). Also well-known is the fact that several African countries have enacted new constitutions during the last two to three decades. One of the most salient features of those new constitutions is that they establish NHRIs, among other things. Given their unique role and mandate, these NHRIs can and do play an important role in the realisation of the sustainable development goals contained in the UN 2030 Agenda for Sustainable Development. Adopting a case study approach, this article explores the role NHRIs have played in the promotion and protection of human rights in selected African countries and implications for sustainable development in those countries. The main argument is that there are several lessons African countries can learn from each other on how their NHRIs can more meaningfully play that role. Accordingly, best practice and comparative lessons are identified and it is recommended that NHRIs can contribute to sustainable development more meaningfully if they can make themselves more relevant, credible, legitimate, efficient and effective.
国家人权机构在保护和促进人权方面发挥着重要作用,这是众所周知的事实。这一点已得到联合国的广泛认可。同样众所周知的是,几个非洲国家在过去二三十年中颁布了新宪法。这些新宪法最突出的特点之一是建立了国家人权机构等。鉴于其独特的作用和任务,这些国家人权机构能够而且确实在实现《联合国2030年可持续发展议程》所载的可持续发展目标方面发挥重要作用。本文采用案例研究的方法,探讨了国家人权机构在选定的非洲国家促进和保护人权方面发挥的作用,以及对这些国家可持续发展的影响。主要论点是,在国家人权机构如何更有意义地发挥这一作用方面,非洲国家可以相互学习一些经验教训。因此,确定了最佳做法和比较经验教训,并建议国家人权机构如果能够使自己更加相关、可信、合法、高效和有效,就能够对可持续发展作出更有意义的贡献。
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引用次数: 0
Editorial 社论
IF 0.1 Q4 LAW Pub Date : 2020-08-14 DOI: 10.25159/0010-4051/8287
F. Abioye
Editorial
社论
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引用次数: 0
Comparative Exposition of Judicial Interventionism in the Enforcement of the Healthcare Right in Nigeria and India 尼日利亚和印度医疗保健权执行中司法干预的比较阐释
IF 0.1 Q4 LAW Pub Date : 2020-08-14 DOI: 10.25159/0010-4051/6772
I. Imam, W. Egbewole
The significance of health to national life has made successive governments in Nigeria and India design certain fundamental policies to regulate, control and guide healthcare service delivery. Since the incorporation of fundamental human rights into the two countries’ constitutions, the healthcare right has appeared as one of the fundamental objectives and directive principles of state policy. This requires governments to put in place policies geared towards implementing these obligations. However, regarding economic and social rights, the Nigerian judiciary has generally played a restrictive or a rather passive role in their enforcement. In contrast, Indian courts have employed a much more pragmatic approach to implementing economic and social rights. The problem with these rights is that judicial intervention resulting from a violation of the healthcare right remains a challenge because section 6(6)(c) and article 35 of the Nigerian and Indian constitutions, respectively, make economic and social rights non-justiciable. The article makes a comparative analysis of the practice in Indian and other jurisdictions in order to justify the possibility of embracing the enforceability of the rights, having regard to the link between economic and social rights and civil and political rights in Nigeria. By drawing on judicial synergy, this article suggests a legislative intercession to bring health rights within the enforceable rights by taking advantage of section 13 and item 60 of the Nigerian Exclusive Legislative List. In addition, the author recommends that the relevant international conventions signed by the country should be domesticated.
鉴于健康对国民生活的重要性,尼日利亚和印度的历届政府都制定了一些基本政策,以规范、控制和指导医疗保健服务的提供。自将基本人权纳入两国宪法以来,健康权已成为国家政策的基本目标和指导原则之一。这就要求各国政府制定旨在履行这些义务的政策。然而,在经济和社会权利方面,尼日利亚司法机关在执行这些权利方面一般起着限制性或相当消极的作用。相比之下,印度法院在落实经济和社会权利方面采取了更为务实的做法。这些权利的问题在于,由于侵犯保健权利而进行的司法干预仍然是一项挑战,因为尼日利亚和印度《宪法》分别第6(6)(c)条和第35条使经济和社会权利不可审理。考虑到尼日利亚的经济和社会权利与公民和政治权利之间的联系,本文对印度和其他司法管辖区的做法进行了比较分析,以便证明接受权利的可执行性的可能性。通过司法协同作用,本文建议利用《尼日利亚专属立法清单》第13节和第60项,进行立法调解,将健康权纳入可执行权利。此外,作者还建议对该国签署的有关国际公约进行驯化。
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引用次数: 0
Third-party State Intervention in Disputes Before the International Court of Justice: A Reassessment of Articles 62 and 63 of the ICJ Statute 第三方国家对国际法院争端的干预:对《国际法院规约》第62条和第63条的再评估
IF 0.1 Q4 LAW Pub Date : 2020-08-14 DOI: 10.25159/0010-4051/6598
G. Barrie
which are normally of a bilateral nature, increasingly also affect the interests of third states. Third states may in many instances wish to intervene in such disputes. Articles 62 and 63 of the Statute of the ICJ has attempted to accommodate such an eventuality. Article 62 provides for intervention by a third state if it has an interest of a legal nature which may be affected by the ICJ’s decision in the case. Article 63 allows for member states of a multilateral treaty to intervene in cases involving the interpretation of such a treaty. Intervention under Article 62 is in the discretion of the ICJ. Intervention under Article 63 is a right. Applications to intervene under Article 62 have only been successful in three instances and, applications to intervene under Article 63 have only been successful in two instances. It is submitted that the ICJ should be more flexible in allowing third-party interventions by interpreting Articles 62 and 63 less strictly. This is more in accordance with the greater interdependence of states in the modern world and can prevent the duplication of proceedings. Such flexibility can only enhance the effectiveness of the ICJ in achieving its mandate.
这通常是双边性质的,也越来越多地影响到第三国的利益。在许多情况下,第三国可能希望干预此类争端。《国际法院规约》第62和63条试图容纳这种可能性。第62条规定,如果第三国具有法律性质的利益而可能受到国际法院对该案件的裁决的影响,第三国可以进行干预。第63条允许多边条约的成员国干预涉及该条约解释的案件。根据第62条进行的干预由国际法院自行决定。第六十三条规定的干预是一项权利。根据第62条进行干预的申请仅在三个案例中获得成功,根据第63条进行干预的申请仅在两个案例中获得成功。有人认为,国际法院应更灵活地允许第三方干预,对第62条和第63条的解释应不那么严格。这更符合现代世界各国之间更大程度的相互依存,并能防止程序的重复。这种灵活性只能提高国际法院在完成其任务方面的效力。
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引用次数: 2
A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand? 呼吁公众参与南非条约制定进程:南非能从泰王国学到什么?
IF 0.1 Q4 LAW Pub Date : 2020-08-11 DOI: 10.25159/0010-4051/6029
Retselisitsoe Phooko
On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.
2002年8月2日,南非签署了《南部非洲发展共同体法庭议定书》及其程序规则,从而有效地承认和接受了南部非洲发展共同体法庭的管辖权。在南部非洲共同体法庭收到的案件中,有一项申诉涉及对津巴布韦政府侵犯人权的指控。它裁定津巴布韦政府侵犯了人权。因此,津巴布韦对法庭的存在提出了政治和法律上的挑战。这导致2011年对法庭的作用和职能进行了审查,导致法庭被禁止接受新的案件或审理已经提交给它的案件。此外,2014年8月18日,南共体首脑会议通过并签署了《2014年南共体法庭议定书》,令人不安地限制了个人管辖权,拒绝个人进入设想中的法庭,从而使其沦为国家间司法论坛。本文批判性地审视了2014年8月18日的决定,特别是南非共和国在《南共体法庭议定书》第37条允许的程序之外签署2014年议定书的法律影响。它建议南非纠正这一民主缺陷,办法是让公众参与条约制定过程,以防止今后出现行政部门单方面退出旨在在区域一级保护人权的国际条约的情况。为了实现这一目标,本文对南非和泰王国进行了比较研究,以学习后者的最佳实践。
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引用次数: 1
The Interaction between Section 233 of the South African Constitution and the Commentaries to the OECD Model Tax Convention on Income and on Capital 南非宪法第233条与经合组织收入和资本税收示范公约评注之间的相互作用
IF 0.1 Q4 LAW Pub Date : 2020-08-11 DOI: 10.25159/0010-4051/6245
E. J. V. Rensburg
The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law. The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.
在解释双重征税协议时,南非法院有时会查阅经合组织《收入和资本税收示范公约》的评注。本条所考虑的问题是这些评注与1996年《南非共和国宪法》第233条之间互动的性质(如果有的话)。第233条要求法院更倾向于对符合国际法的立法作出合理解释,而不是对不符国际法的其他解释。文章分析了第233条措辞的各个方面,包括“国际法”一词的含义。它指出了跨国来源在第233条方面可能发挥的各种作用,例如,这些来源可能构成第233条所指的“国际法”,也可能有助于解释构成“国际法“的来源。该贡献考虑了评论员最有可能为第233条的目的发挥哪些作用。
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引用次数: 1
Leveraging International Law to Strengthen the National Legal Framework on Child Sexual Abuse Material in Namibia 利用国际法加强纳米比亚关于儿童性虐待材料的国家法律框架
IF 0.1 Q4 LAW Pub Date : 2020-06-08 DOI: 10.25159/0010-4051/6241
Sabine K. Witting, Markus Angula
With the gazetting of the Regulations of the Child Care and Protection Act 3 of 2015, on 30 January 2019, a crucial regulatory piece of children’s rights in Namibia has finally been operationalised. However, the Act insufficiently addresses new emerging online offences against children such as the possession and distribution of child sexual abuse material, and hence leaves a considerable gap in the protection of children’s rights. As the Namibian Constitution follows a monist approach to international law, this article argues that the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography can be directly applied to complement the national legal framework to prosecute cases of possessing and disseminating child sexual abuse material, while upholding fair-trial principles.
随着2015年《儿童保育和保护法》第3号条例于2019年1月30日公布,纳米比亚儿童权利的一项重要监管工作终于开始实施。然而,该法案没有充分解决新出现的针对儿童的网络犯罪,如持有和传播儿童性虐待材料,因此在保护儿童权利方面留下了相当大的空白。由于《纳米比亚宪法》对国际法采取了一元论的做法,本条认为,《儿童权利公约关于买卖儿童、儿童卖淫和儿童色情制品问题的任择议定书》可以直接适用,以补充起诉持有和传播儿童性虐待材料案件的国家法律框架,同时坚持公平审判原则。
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引用次数: 0
The multilateral agreement on investment: an indecent proposal and not learning the lessons of history 多边投资协议:一个不体面的提议,没有吸取历史教训
IF 0.1 Q4 LAW Pub Date : 2001-07-01 DOI: 10.1163/221190001X00149
N. Wallace-Bruce
A number of conclusions have already been reached in the course of the article. To sum it all up, this article has contended that the Multilateral Agreement on Investment (MAl) which was proposed by the Organisation for Economic and Community Development (OECD) in 1995 and abandoned three years later was unnecessary anyway. It has been a theme of this article that the environment for global investments is changing. Some new dynamics are taking place in a context of a new global competitiveness paradigm. This is leading to a rise in international production and growth in investments.
在这篇文章的过程中已经得出了一些结论。综上所述,本文认为,经济与共同体发展组织(OECD)于1995年提出的多边投资协定(MAl)在三年后被放弃,无论如何都是不必要的。全球投资环境正在发生变化,这一直是本文的主题。在新的全球竞争力范式的背景下,一些新的动态正在发生。这导致了国际产量的上升和投资的增长。
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引用次数: 4
New trends in European Community law 欧共体法律的新趋势
IF 0.1 Q4 LAW Pub Date : 1998-11-01 DOI: 10.22456/0104-6594.70390
G. Laule
Community competition and international trade law is expanding at such a rate that more and more law is developing in increasingly less and less time. To illustrate, supplements to authoritative works on EC competition law - such as the infamous Bellamy and Child on European antitrust law - are now as long ·as the first editions of the works. The number of decisions and other important texts keeps multiplying, especially decisions by the European Court of First Instance. This poses the formidable problem of weeding out the irrelevant from the relevant, and the relevant from the very relevant. The material selected for this discussion was chosen particularly with an eye to the potential needs of Japanese business exporters. With this in mind, this article includes the most important and up-to-date issues in European antitrust and international trade law.
社区竞争和国际贸易法的发展速度是如此之快,以至于越来越多的法律在越来越短的时间内得到发展。为了说明这一点,关于欧共体竞争法的权威著作的补充——比如臭名昭著的关于欧洲反垄断法的贝拉米和柴尔德——现在和这些著作的第一版一样长·。判决和其他重要文本的数量不断增加,特别是欧洲初审法院的判决。这就带来了一个棘手的问题,即从相关的内容中剔除不相关的内容,从非常相关的内容中剔除相关的内容。本次讨论所选用的材料特别着眼于日本企业出口商的潜在需求。考虑到这一点,本文包括欧洲反托拉斯法和国际贸易法中最重要和最新的问题。
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引用次数: 0
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Comparative and International Law Journal of Southern Africa-CILSA
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