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Long LLM Research Papers

Long LLM Research Papers

Students completing an LLM in the Department of Public Law each write a short dissertation. Some of these are stored here.

Privatising the miliary use of force: Responsibilities of Stat es and International organisation under International Law.
By
Frank Arnim Heemann

Extract: Since the end of the Cold War, states have increasingly turned to privatised military services for their own military and security needs. This paper explores comprehensiv ely the responsibilities that arise under international law from the privatisation of the military use of force and, in particular, the use of private military companies (PMC's) for military and security functions.

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Transparency and Access to Information in South Africa: An Evaluation of the Promotion of Access to Information Act 2 of 2000
By
Sebastian Roling This dissertation focuses on the grant and promotion of transparency within the South African legal system and the constitutionality of the Access to Information Act 2 of 2000 ('PAIA'). The main concern of the thesis is that information is very time-sensitive. The principal argument is that lat e access to information often proves worthless. This makes the right of access to information very vulnerable to procedural issues. The thesis examines the procedural flaws which the author believes to be leading to the unconstitutionality of PAIA and which have to be resolved for the sake of an effective and efficient implementation of access to information as stipulated by the constitution.

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Jurisdiction over Peacekeeping Forces Before and After the Establishment of the Internation al Criminal Court and the Impacts of Security Council Resolution 1422 and So-Called "Art.98 Agreements"
By
Nina Seider

Extract: This essay will focus on the question of who has jurisdiction over peacekeeping forces in the case that these forces commit crimes. The legal rules governing the establishment, functioning, administration and status of these operations are very complex. This paper will analyse the rules governing jurisdiction before and after the establishment of the International Criminal Court. Moreover this paper will consider whether the Security Council exceeded its powers under the UN Charter or possible extra-Charter boundaries by adopting Resolution 1422. The last part of this paper examines the conformity of these so called ¬ĎArt 98-Agreements' with the Rome Statute and Customary International Law.

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Defining Aggression for the International Criminal Court: A Proposal
By
Joachim Gewehr

Extract:It is the aim of this paper to produce a workable definition of the crime of aggression for an ultimate adoption into the Rome Statute. To accomplish this, a review of the development of the crime will be presented in Part I, including an account of relevant findings established by the precedents at Nuremberg and Tokyo, which can today be seen as firmly established. Part II will be dedicated to a detailed analysis of central issues not resolved as of today and yet vital to a definition. Finally, a proposal which this author deems consistent with higher norms of international law, morality, and political reality will be produced. Lastly, it is hoped that this paper can contribute to the discussion and serve as a reminder not to allow fatal retrogressive law-making.

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Humanitarian Intervention: Historical, Legal and Moral Perspectives
By
Kyrre Grimstad

Extract: The main part of the dissertation is an inquiry into the legal basis and content of a potential right of humanitarian intervention. First I will analyse the UN Charter and its prohibition against the use of force, and assess some theories of interpretation of this rule. The crucial point is if it can be seen as containing an exception allowing for humanitarian intervention. Secondly I will look at state practice regarding humanitarian intervention from after World War Two. The question is if such interventions resulted in new customary law validating the use of force on humanitarian grounds. I will divide this treatment in two, as I believe there are fundamental differences in the political situation during and after the Cold War that resulted in changes in state practice regarding the use of force. Finally I will look into some fundamental principles of international law. When essential notions like sovereignty and the protection of human lives are in conflict, there must be some fundamental principles that can guide the interpretation and development of the law. They can be called principles of necessity, norms of natural law or fundamental moral convictions, but they have to be taken in consideration when crucial standards of humanity are at stake.

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What is the relationship between the maritime anti-terrorism systems created by the USA and the existing multilateral maritime security systems
By
Stefan Wirths

Extract:The object of this thesis is to first look at the framework of multilateral international law security systems, i.e. the pre and post 9/11 IMO security systems, and then to look at the security systems created by the United States, namely the Maritime Transportation Security Act, the Container Security Initiative and the Customs-Trade Partnership Against Terrorism as well as the Proliferation Security Initiative and the relationship of each of these measures to the international framework and the consistency with international law.

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Trials and Tribunals: administrative justice after PAJA and New Clicks with particular reference to the financial services industry
By
Kerry Horsley

In September 2005 the South African Constitutional Court handed down the seminal judgment of Minister of Health v New Clicks. The judgment is critical to our understanding of administrative justice in South Africa not only with regard to the applicability of administrative justice principles to the making of subordinate legislation, or administrative rule making, but also because of its wide ranging analysis of the state of administrative law in South Africa. Although the final Constitution of 1996 included a justiciable right to administrative justice, it was only with the passing of the Promotion of Administrative Justice Act (PAJA) in 2000 that this right was given effect to. The legislation was expected to both codify South Africa's common law and to introduce a system of administrative justice that was not wholly reliant on judicial review as a means of ensuring open, transparent and accountable government.

The New Clicks judgment can be criticised for its lack of a truly majority judgment and the opaqueness of the justice achieved but it is to be welcomed for its certainty as regards the inter-relationship between the common law, the Constitution and PAJA. The judgment is concerned primarily with administrative rule-making but the case is analysed in this discussion with a view to extracting those principles that can be applied to administrative grievance tribunals. The practice of empowering expert tribunals to address grievances within the definition of administrative action and allowing administrators to review their own actions prior to a judicial review process is a favoured feature of administrative justice. The financial services industry is used as an example of the need for legislative consistency in the creation of such tribunals as well as a consistent standard of review of the resultant determinations, without which the advantages of tribunals as a means of achieving administrative justice are outweighed by competing jurisdictions, unnecessary costs and inefficiencies and, most significantly, the lack of justice for consumers.

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To what extent has the Convention on the Rights of the Child acted as a lens for the refocus of refugee protection mechanisms, to affect improved protection measures and adherence to human rights standards for child refugees?
By
Louise Carmody

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A child's need of special care and assistance is now recognised, not as a luxury of circumstance, or gift of charity but rather, as a fundamental right of all children. The Convention of the Rights of the Child has received almost universal ratification at an unprecedented speed. However, despite this international show of commitment towards children, tangible reforms reflecting the State parties' obligations to certain 'at risk' groups of children remains lacking. While the Convention on the Rights of the Child has added impetus to important reforms of certain child related practices within member States, it is submitted that such action has been reliant on an existing or evolved political impetus. In relation to child refugees, however, not only does the political motivation appear to be lacking but increased protection of these children diametrically opposes larger considerations of immigration policy. In so far as this is the case, states are falling short of their legal obligations under both refugee and human rights law. There is a need therefore, to emphasise the legal obligations of the CRC while also pressing for a political evolution in the formation of immigration and refugee policies, whereby 'the best interests of the child shall be a primary consideration'. It is the intention of this paper to examine the extent to which the CRC has acted, (and, has the potential to act), as a lens for the refocus of refugee.

Towards a theory of Deference in South Africa; Trans-Atlantic Lessons
By
John Kenny

This paper will offer a 'snapshot' designed to demonstrate the analytical poverty of a bare constitutional approach shorn of intellectually comprehensible criteria. It will be argued that this approach fails to offer a coherent corpus of law, oscillating alternatively between formalistic bows to deference and judicial interventions of extraordinary ambition. The thrust of the analysis with the normative model will not be to quibble with the impact of the Constitution, but rather to argue for a return to a conceptual analysis where the doctrine of deference is not determined haphazardly by reference to the Court's solicitude for a particular constitutional right.

It will be briefly argued that the courts in South Africa have been waylaid by the interpretative millstone of determining whether a contested decision is "administrative action", often encapsulating their entire deference analysis within a perfunctory nod to separation of powers principles. It will be argued that the South African judiciary has refused to grasp the nettle of an overtly conceptual justification for judicial review. Their current approach, of stressing the requirement of 'reasonablness', it will be argued begs rather than answers the demand for substantive criteria that subsist beyond the particular circumstances of each case.

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Taking land reform seriously: From willing seller-willing buyer to expropriation
By
Siphiwe Dlamini

This dissertation is concerned with the appropriateness and effectiveness of the South African government's policy and approach to land redistribution. It reviews the willing seller-willing buyer approach to land redistribution and assesses its effectiveness and highlights its strengths and weaknesses. This will include an examination of its implementation by two other countries (namely Namibia and Zimbabwe) in the region that have faced similar land issues. in order to determine whether it is an appropriate approach for South Africa. Zimbabwe and Namibia are ideal comparisons as they are neighbouring countries (with similar agricultural sectors) that are also implementing land redistribution at the same time that South Africa is. Namibia, which once formed a part of South Africa (South West Africa), is going through land reform at the same time as South Africa, while the Zimbabwean process began earlier.

The fact that both countries also relied on the market-based willing seller-willing buyer principle provides a unique opportunity for the South African government to learn from the experiences of these two countries, while they still manoeuvre through the issues related to the approach. This will enable a determination of whether the willing seller-willing buyer policy is an appropriate basis for South Africa's redistribution programme or whether an expropriation based approach would prove to be a more effective option.

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The use of mediation to resolve environmental disputes in South Africa and Switzerland
By
Juerg Alder

Extract:After a short overview about mediation as one mechanism to resolve environmental disputes and the advantages respectively disadvantages of this kind of alternative dispute resolution, the focus shifts in paragraph C to the use of mediation to resolve environmental disputes in Switzerland. On the basis of several cases in which mediation or mediation-type activities were used to resolve the environmental conflict I want to show why, in the end, environmental mediation probably will never be so widespread in Switzerland as it is in other countries. The paragraph ends with a case study about mediation experiences in Switzerland over nuclear waste disposal. Nevertheless, this aforementioned case study shows that the Swiss decision-making system offers a good basis for mediation procedures in areas of politics where there is yet little participation as longs as certain preconditions for a successful procedure are fulfilled.

In paragraph D I deal with the use of mediation in South Africa to resolve environmental disputes. The focus shifts in a first step on the National Environmental Management Act (NEMA), especially Chapter 4 NEMA which deals with Alternative Dispute Resolution and, in particular, with environmental mediation. In a next step I examine if this Chapter has been already implemented or if there is still a big gap between theory and practice. Finally, paragraph D ends with two South African cases in which mediation was involved to resolve the dispute and a comparison of the two procedures.

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Can a Case be made for the Provision of Government Funded Social Assistance to Refugees in South Africa? Defining a Constitutional Standard for Refugee Protection in South Africa
By
Nyaradzo Machingambi

Extract: This paper is a critique of the implementation of the progressive refugee protection through the local integration policy that has been established by the South African Government. It is premised on the belief that the South African government has failed to create an 'enabling environment for refugees' and that this failure makes it imperative for the South Africa government to remove the exclusion of refugees from their social security scheme. The case put forward by this paper is that the inclusion of refugees into the South African social security scheme will not only improve the quality of its refugee protection policies but it will make them more compatible with constitutional standards.

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Creating legal blackholes? Terrorism and detention without trial: towards a changing rule in international law?
By
Martin Kunschak

Extract: Hardly any attention has been paid to another important aspect touching on general international law and international human rights law in particular: What is the effect of counter-terrorist actions on existing rules of human rights law when these actions violate these norms? Could they possibly create a new rule? The thesis will look at this neglected aspect of the 'war on terrorism' with focus on the troublesome practice of designating persons terrorists and detaining them without trial. A look at the current state of international law reveals that such detention without trial is prohibited under human rights law and humanitarian law. Nevertheless, states across the world have adopted this 'crown jewel of emergency measures'. The question of how states justify their approach in order to get around the prohibition arises. And could the practice together with its justification provide the basis for the emergence of a new rule of international law?

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Fighting terror in East Africa: less liberty for more security? Analysis of Anti-terrorism legislation and its impact on human rights
By
Nerida Nthamburi

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How to prove a role of Customary International Criminal Law: Re-imaging a Definition of CIL
By
Kirsten Cockburn

Extract: In Chapter One, I intend to examine the development of CIL and delimit the parameters of the traditional doctrine. In doing so, I hope to highlight the difficulties in its application in the area of international criminal law. In Chapter Two, I will contemplate the modern theories of CIL and illustrate the circular nature of both the modern and traditional doctrines. In Chapter Three, I will re-imagine a definition of CIL that attempts to break this circulatory reasoning. In Chapter Four, I will detail the application of customary international criminal law norms both domestically and internationally. In particular, the jurisprudence of the ad hoc Tribunals serves as an indicator of the possible shortcomings of the definition of CIL and is illustrative of the dangers of defective application of the definition as it currently stands.

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The individual right to reparation for victims of sexual violence during armed conflict in international law - theory and practice
By
Katharina Braig

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Intercountry Adoption: A Swiss Perspective
By
Sabina Albrecht

Extract:After some introductory comments the paper first looks at the history and evolution of intercountry adoption and then considers possible risks and abuses in the process in the second part. The third part explores international legislation and procedural guidelines governing the practice of intercountry adoptions, beginning with the respective declarations and international instruments and in particular looking at the principles set out in the CRC and the Hague Convention. The way the international law in question is implemented by states is addressed primarily by using Swiss national law as an example in the fourth part of the paper, touching on questions of prevention and control. By assessing the effects of international and national legislation on the practice of intercountry adoption the paper finally tries to reach a conclusion on the contested issue of intercountry adoption - especially from a Swiss perspective.

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The internally displaced in International law - do they require enhanced protection?
By
Anja Kiessling

Extract: This work will examine the situation of the internally displaced from the perspective of international law. Chapter one will provide a brief outline of how the meaning of the term IDP developed and then explain who, in the context of this paper, is covered by the term IDP. Chapter two will then put forth the legal framework applicable to IDPs and examine whether these rules grant sufficient protection. Chapter three will address if and how the international community can enhance their protection. In this context it must be explored whether the principle of state sovereignty still presents a serious challenge to the ability of the international community to intervene on behalf of the internally displaced. Finally, the focus will turn to the situation in the Sudan. It is the country with the largest population of IDPs, estimated at over five million.

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The international covenant on economic social and cultural rights: A critical examination of the relative importance of resource constraints on benchmarks and benchmarking processes in the African context
By
Laurie Ann Jackson

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International Legal Consequences of the Construction of a Barrier by Israel in the West Bank
By
Hinnerk Goelnitz

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Is the European union a model for the African union?
By
Christoph Zurmeyer

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Legal aspects of terrorism: an international overview with special emphasis on east africa
By
Monchere Nyaundi

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The liberalization of trade in agricultural products between ACP countries and the European community under the WTO regime
By
Offah Obale

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Managing the relationship between the national government and the provinces. A discussion of provincial environmental initiatives with reference to section 24 of NEMA
By
Joanna Eastwood

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Much to be done: towards an effective transitional justice model for dealing with conflict-related crimes of sexual and gender-based violence
By
Anne P Inturire Mazimhaka

Extract: Many countries in Africa have experienced conflicts characterized by gross human rights violations, including widespread and systematic sexual and gender-based violence. Several of these are currently grappling with the difficult issue of addressing the wrongs of the past while at the same time trying to secure a stable and democratic future. This study considers what an appropriate model of transitional justice should be in the African context, particularly as pertains to crimes of sexual and gender-based violence. This chapter will briefly illustrate the prevalence of sexual and gender-based violence in conflict situations, particularly in Rwanda, note the legal developments made thus far, and establish the aim of this particular study

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The need for justiciable socio-economic rights in the bill of rights in the Zambian constitution
By
Linda Kasonde

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The relevance of culture and religion to the understanding of children's rights in South Africa
By
Precillar Moyo

Extract: The aim of this paper is to explore the influence of culture and religion on the rights of the child from a South African perspective. This paper does not engage in a debate about whether children's rights are universal or not. The underlying premise is that children's rights are universal. The paper simply uses the universalism and cultural relativism debate as an entry point to a discussion of children's rights in the South Africa. It will explore the extent to which culture and religion influence and impact the interpretation of children's constitutional rights which are modelled on the CRC. The paper will therefore critically and comparatively consider how South African courts have attempted to reconcile universal norms with historical, cultural and religious peculiarities in defining rights and their resultant effect on children and their welfare.

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The Right of Anticipatory Self - Defense and the Use of Force in Public International Law
By
Thomas Remler

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South African obligation under international law to prosecute and punish perpetrators of gross human rights violations and to provide compensation for victims
By
Cord-Hendrik Moller

Extract: Countries undergoing a transitional process face multiple problems and challenges. The process of transformation from a dictatorial, anti-democratic or authoritarian state into a constitutional democracy which respects the rule of law and the fundamental human rights of its citizens is a difficult and strenuous one. Often equipped with only limited financial resources, many newly elected, democratic governments find themselves confronted with a variety of urgent problems waiting to be resolved: the civil service and the judiciary need to be restructured or reformed, jobs must be created for the hundreds of thousands of unemployed, the economy must be put back on the right track and the poor have to be provided with housing, food and health care.

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