As highlighted, international law has played a mixed role regarding land rights in Africa. During the colonial era international law was an important factor in initiating the dispossession of indigenous peoples. The emergence of humanrightslaw as a branch of international law marks an important change of approach. Indigenous peoples’ rights to land and natural resources are strongly affirmed and guaranteed by numerous inter-related humanrights decisions and instruments, which emerged from both regional and international humanrights mechanisms in recent years. The wide ratification by African states of international and regional instruments pertaining to indigenous peoples’ rights demonstrates a strong commitment toward the protection and promotion of indigenous land rights. However, the realisation of these rights through the implementation of the relevant decisions and instruments remains challenging. While international and regional bodies have created solid instruments and taken pioneering decisions, few of the principles expounded have been implemented in practice. Concrete measures are needed to translate the standards into reality, including those of the African Charter on Human and Peoples Rights, the United Nations Declaration on the Rights of Indigenous Peoples, the United Nations Convention on the Elimination of All Forms of Discrimination and the Convention on Biological Diversity. States can show greater commitment by ratifying other recent international and regional treaties engaging the rights of indigenous peoples, such as the revised African Convention on the Conservation of Nature and Natural Resources and ILO Convention 169. The principles and rights emerging from international law should be seen as minimum standards of protection for the rights of indigenous peoples, which no state legislation should fail to integrate.
The Protection of Human Rights by the Judiciary and Other Structures in South Africa SMU Law Review Volume 52 | Issue 4 Article 3 1999 The Protection of Human Rights by the Judiciary and Other Structu[.]
tion . In 2006, there were an estimated 247 million epi- sodes of malaria and an estimated 881 000 malaria deaths . Eighty-six percent (212 million) of these malaria epi- sodes and 91% (801 000) of malaria deaths in 2006 occurred in Africa (Ibid.). Malaria and TB complicate the effective control of HIV, due to their shared risk factors, geographic overlap and co-infection, particularly in sub- Saharan Africa. TB is a leading cause of death among people living with HIV/AIDS in Africa . Only 1% of people living with HIV/AIDS are reported to have been screened for TB, of which more than 25% have TB . HIV also increases the risk of malaria infection and the development of clinical malaria, while malaria has been
In the chapters on South African land rights black South Africans have the right to restitution under the Land Restitution Act and the Constitution if they were dispossessed of their land for racial reasons after 1913. In these chapters, the property in question is mainly private land with some gov- ernment-owned land to be returned to those or their descendants. A major problem that requires solving is who should receive the land and under what conditions? In this case of restitution the South African government was not satisfied to simply return the land but to see it used in accordance with government wishes. Thus South Africa’s land restitution program attempts to merge humanrights, customary rights, property rights and development. To explore these issues Derman, Hellum and Manenzhe examine the processes of land restitution and farming in the Levubu val- ley in northern Limpopo Province. Rather than offer financial compensa- tion to claimant communities, the South African government has gone ahead and purchased more than fifty large-scale highly developed farms for transfer to claimant communities. In order for the transfers to take place the land claiming communities had to organize themselves into Communal Property Associations or trusts. These are formal legal entities designed by law and required of these communities. Some efforts were made to assist communities in the transition but when the national gov- ernment opted to make communities form strategic partnerships this lapsed as the leadership had to learn how to function in joint venture com- panies. How these new arrangements have worked is the subject of the chapter in which the authors assess how the balance between state, mar- ket and rights are working out. The chapter on gender in the restitution process will be discussed in the introduction to Part III.
Steward  observes that child participation is closely linked and interdependent with civil and political rights. Participation of the rights holder is a core element in any humanrights based approach promoted in various contexts at national regional and international levels. For instance, children should participate in the development of legislation, public policy making, development strategy, poverty reduction strategy and other activities (40 pages 15). Child participation brings children’s perspectives into the development processes. Therefore, true recognition of children’s rights requires implementation in practice through legal reforms and policy formulation that promotes their inclusion. It has been found that children’s rights have been legislated, but law enforcement, implementation and monitoring are inadequate [41, 42, 43, and 44]. Moreover, in spite of UNCRC adaptation and incorporation into local laws and policy, violation and child abuse incidents are still inadequately managed. Perpetrators of abuse are sometimes given light sentences while others remain unpunished probably due to the diverse nature of abuse and neglect across cultures. This discourages people from reporting abuses and all forms of children’s rights violation . However, in Africa, the culture of silence and some traditions also affect reporting of violation of rights. Inadequate services lead to unfulfilled rights as Federle  observed awareness of rights promotes better protection of children. This is of particular significance in the African context because of the social, economic and political factors that pose a challenge to realization of children’s rights , and besides, the situation of children in Africa has not improved [48,49,50].
DOI: 10.4236/blr.2019.102019 314 Beijing Law Review ture through the establishment of a multi-chamber court; however, the Protocols containing these reforms are yet to enter into force. The solution to the protec- tion of humanrights in Africa has little to do with the number of the protection mechanisms but rather their effectiveness. Notwithstanding the proliferation of bodies with humanrights mandate, the AU is yet to adequately mainstream hu- man rights into its processes and programmes. This has resulted in lack of coor- dination and collaboration among the various AU organs. Avoidable overlaps and duplication of functions are commonplace. There is also the problem of li- mited capacity of, and limited access to, the various humanrights-protecting in- stitutions.
The position of NGOs and their growing influence is an international phenomenon. This paper addresses NGOs in the context of Africa, as it examines Wangari Maathai’s Green Belt Movement in Kenya. In Africa, NGOs now play dominant roles in the practice of humanrights and the rule of law by adopting a rights-based approach to development work that often centers a particular group or issue – the Green Belt Movement centers women and the environment – which means that they use the concept of rights to set agendas and priorities, and to allocate resources (Welch 2004, 207). A rights-based approach to development adds utilitarian value to the work of NGOs, which can leverage their rights agendas to influence donors that they know can in turn influence the state to acknowledge and enforce the rights in question (Nelson and Dorsey 2003, 2013–2026). However, NGOs do not have the same capabilities to act as agents of justice as dominant global institutions, because they depend on money from private donors and inter-state institutions such as the United Nations and the World Bank. In addition, and as the work of Makau Mutua advances, NGOs face significant challenges in their humanrights work. 1 However, the numerous paradoxes that NGOs face do not negate their capacity to defend and enforce humanrights. NGOs’ power also comes from their ability to exercise soft power through campaigns and strategies that make them “powerful engines for organizing and driving policy change” (Kettl 2000, 491). Through these strategies, NGOs, such as the Green Belt Movement, continue to act as agents of justice as they advance certain political objectives, using their influence to positively impact the communities they serve.
Artisanal fisheries sector has potential but remains almost entirely undeveloped in view of the lack of infrastructure for storage, processing and distribution. In absence of a system of control and surveillance, the marine resources along the Somali coastline have been regularly plundered by unlicensed trawlers. It is estimated that illegal fishing results in a total export loss of about US$ 95 million annually, or about 25 percent of the estimated potential annual catch. In all agriculture sub-sectors output is lower than historic levels. For example the post war average grain production is estimated to be 50-60% of the pre-war average (1981-1990) showing that Somali agriculture production has considerable margins of growth and development but remains constrained by the volatile security situation, the absence of rule of law, the collapse of the irrigation infrastructure, the insufficient technical and support services, the insufficient infrastructure and market integration and development, the absence of a credit system, effective natural resource management and environment protection.
A6 In exercising this discretion, a judge should look into the validity of the amnesty from an international law perspective. It had been argued that international law was moving towards prohibiting blanket, unconditional amnesties (J Dugard, ‘Dealing with crimes of a past regime’, Leiden Journal of International Law 12: 1001–1015 (1999) (‘Dugard’), see also A Cassese, ‘International Criminal Law’, Oxford University Press, 315 (2003)), and such ‘illegal’ amnesties should not be recognized. By contrast, conditional amnesties granted by truth commissions might be more deserving of foreign recognition. Whether a specific amnesty deserved recognition should depend on a variety of circumstances, such as the constitution, mandate, and powers of the truth commission, as well as the way it was established and under which requirements it granted the amnesty (see for a list of requirements, Dugard, 1012).
However, the fact remains that the practical achievement of gender equality and full realization of the rights of women has not been as the law prescribed and as women should naturally deserve by the mere fact of being a human person. In other words, the changes being brought are not adequate. Women are not equally enjoying as men of their rights in the political, economic, and social affair of the country (Ogato, 2013). They have still limited access to and control of productive resources, employment, information, decision- making, and training (ibid). The prevailing challenges they face show the fact that they still occupy the low status in the society. Women still suffer from violation of humanrights though the government strives to maintain gender equality and to achieve the implementation of women’s rights. They are encountering violence in their private as well as publish life (Yemane, 2004; Megersa, 2014). It is common to see women are dominated, oppressed and exploited by their men counterpart. The rights of women have not been properly safeguarded as humanrights of all human beings. This is due to the mere fact of being a woman, which should not be the case in any means. Gender-based discriminatory practices are still apparent in the rural area of the country. Gender-based violence that resulted in physical, sexual, and psychological harm has not been adequately addressed by the laws discussed above.
temational practices" in solving common problems often faced by different legal systems. An lectic approach to law reform which draws upon different international experiences is not :ogether uncommon to the region as evident, for example, from the legal systems of South Asia Bangladesh, India, Pakistan, and Sri Lanka), the PRC, and Japan. Indeed, in the case of Japan, the eiji Restoration in 1868 saw a remarkable period of 20 years of institutional modernization. Feudal ivileges were ended and a market economy was created for land, labor, and capital. And even ough there were no foreign donors in the 1860s and 1870s to provide legal technical assistance to e Japanese reformers during the Meiji Restoration, foreign advisers played a significant role, ermann Roesler, a German, played a significant role in the writing of the Japanese Constitution, hich became effective in 1890. Two French advisors, Georges Boussquet and Gustave Boissonade, me to Japan in the 1870s to teach law and became quite active in the drafting of various codes and arking with the courts in interpreting various laws. Five major codes were enacted. The enactment ‘such codes was an on-going process, as Japanese jurists made efforts to adopt foreign models to panese customs and mores. Indeed, the first codes of the Meiji Restoration were generally
It is clear that the protection of man is one of the significant issues in the international law. Moreover, the international community views the Islamic states as illiterate. However, before one thousand and four hundred years, the Islamic Shari'a has confirmed on the protection of the states' aspects (people, government and the region). The matters that raise disputes among the Islamic states are due to the interference of the great states in the Islamic affairs. In this context, Islam looks at the stay of the state through man's right to live, but no to importance of the state to stay, as the important issue is the sustain man's life. In this regard, various verses in the Holly Qor'an stipulate prohibiting killing man and were not concerned about the state as a requirement for man's right to live; man enjoys live whether within or not in a state. In addition, Islam did not require recognizing the state so as to enjoy the right to stay. For these reasons, it is necessary to create an international legal system that protects man's live regardless of the state's behaviors, or whether such behaviors are accepted or not by the dominating states. For that, we would recommend the following:
There is no good reason why humanrights principles do not extend to the combatants themselves. There is some recognition of this in the protection of former combatants, those who are hors de combat, by international humanitarian law. But to the extent that the right to life of the non-combatant is entitled to protection, at the very least as a controlling factor in assessing the proportionality of ‘permissible’ collateral damage, a similar approach should also be taken to those combatants who are still active on the battleﬁeld. The ICRC addressed this issue in principle IX of its Interpretive Guidance on the Notion of Direct Participation in Hostilities, adopted in 2009. This is sometimes described as the ‘kill or capture’ debate. The Committee said that although combatants were not required to take additional risks for themselves or the civilian population in order to take an armed adversary alive, ‘it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force’. 35 In effect, then, even in the most extreme circumstances of armed conﬂicts, the right to life of the combatant is entitled to some protection. The Committee expressly recognised the role of other bodies of law, and in particular international humanrightslaw, in the regulation of the use of force in armed conﬂict.
International Law: New Actors, New Concepts Continuing Dilemmas, Liber Arnicorurn B. Bakotic, Martinus Nijhoff Publishers, Leiden, Boston, pp. 265-279. Indeed, the 1972 United Nations Confer- ence on the Environment held in Stockholm, 1972, had to reiterate the rule. Principle 21 of the Stockholm Declaration reads “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their juris- diction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. The same principle will be proclaimed by the Rio Declaration on the Environment and Development, adopted on 13 June 1992 (A/CONF/51/2.6.Rev.1 of 14 June 1992). In its 8 July 1996 advisory opinion related to the lawfulness of the threat or use of nuclear weapons, the International Court of Justice confirms the binding force of the principle: ICJ Reports p. 226, spec. pp. 241-242, paragraph 29. See also the case concerning the Gabeilcovo-Nagymaros Project (Hungary/Slovakia), judgment of 25 September 1997, ICJ, reports 1997 p.7 spéc. P. 41, paragraph 53.