Drafting History Research Articles

Malone v. Government of the United Kingdom of Great Britain and Northern Ireland and Another (2024) and State Immunity in South Africa in Extradition Proceedings: Interpreting the Foreign States Immunities Act in Light of Its Drafting History and International Law

Abstract The Foreign States Immunities Act (the Act) provides for circumstances in which a state enjoys jurisdictional immunity for any act or omission that takes place in South Africa (sovereign acts under section 2) and for circumstances in which it loses that immunity (private/commercial acts under sections 4, 5, and 6). The Constitutional Court held that extradition is a sovereign act. Thus, the requesting state enjoys jurisdictional immunity. In Malone v. UK and Another, the United Kingdom requested South Africa to arrest and detain the applicant pending his extradition and to oppose his bail application. He spent several days in detention before the United Kingdom withdrew the extradition request. He argued that the United Kingdom was responsible for the violation of his rights. The United Kingdom argued that extradition was a sovereign act and the court did not have jurisdiction over the matter. Although the High Court recognized that extradition is a sovereign act, it invoked section 6 of the Act and held that the United Kingdom was liable for the violation of the applicant’s rights. It is argued that the Court’s reliance on section 6 is contrary to the drafting history of the Act and potentially to the jurisprudence of the International Court of Justice.

The Supreme Court of Uganda’s Powers to Depart from or Reopen (Review) Its Decisions Under Article 132(4) of the Constitution

Abstract Article 132(4) of Uganda’s Constitution (1995) states that the Supreme Court may generally consider its decisions binding but can depart from them when necessary. Unlike some other African constitutions, Uganda’s does not explicitly authorise the Supreme Court to review its own rulings. The drafters intended for Article 132(4) to permit only departure, not review. However, this Article does not explicitly forbid review, and Rule 2(2) of the Supreme Court Rules (1996) allows the Court to set aside judgments found to be ‘null and void’. This article relies on the drafting history of the Constitution and contends that Rule 2(2) aligns with the Constitution since Article 132(4) does not expressly bar review. Drawing on practices in countries like Kenya, Ghana, and Tanzania, it argues that the Court could invoke its inherent powers to broaden the grounds for review when justice so requires, even beyond cases deemed null and void.

The Right to Move a Private Member’s Bill in Uganda

Abstract Under Article 94(4)(b) of the Constitution, ‘a member of Parliament has the right to move a private member’s bill [PMB]’. Under Article 94(4)(d), ‘the office of the Attorney-General shall afford the member moving the private member’s bill professional assistance in the drafting of the bill’. Article 93 prohibits Parliament from proceeding with a PMB that, inter alia, imposes a charge on the Consolidated Fund. Rule 121(3) of the Rules of Parliament provides ‘[t]he Clerk to Parliament shall, where necessary, afford the Member moving the’ PMB ‘professional assistance in the drafting of the Bill’. Under Rule 122(1), a PMB has to be introduced by way of motion which has to be carried for it to be passed. The right under Article 94(4)(b) is not one of the fundamental rights. The author relies on the drafting history of Articles 93 and 94 to demonstrate the nature of this right. He relies on the Hansard (2016–2024) to highlight how this right has been protected. He argues that Rules 121(3) and 122(2) are unconstitutional and that the Constitutional Court’s interpretation of Article 93(a)(ii) in one of its decisions is contrary to the drafting history of that provision.

The prohibition of discrimination and the workers’ right to maternity or paternity leave in light of the drafting history of Article 40 of the Constitution of Uganda and sections 56 and 57 of the Employment Act

Workers’ rights are provided for under Article 40 of the Constitution (1995) and in other pieces of legislation. Sections 56 and 57 of the Employment Act (2006) (the Act) provide for the rights to maternity leave and paternity leave respectively. Section 56(1) of the Act provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’ to maternity leave as a result of ‘child birth or miscarriage.’ On the other hand, section 57(1) of the Act provides ‘[a] male employee shall, immediately after the delivery or miscarriage of a wife, have the right to’ paternity leave. It is evident that under section 56, for a female employee to qualify for maternity leave, she doesn’t have to be married. However, for a male employee to qualify for paternity leave, he has to be married. The reason for this is explained in the drafting history of section 57. It is argued that this amounts to discrimination on the ground of marital status. It is also argued that section 56(1) is only applicable to biological mothers and excludes adoptive mothers, commissioning parents (in cases of surrogacy) and those who have committed abortion. This is also discriminatory but could be justified in the case of commissioning parents, adoptive parents and those who have committed abortion.

The origins of ‘civil rights and religious liberties’ in the Belfast-Good Friday Agreement

This article traces the origins of the declaration of rights in the human rights and equality section of the 1998 Belfast-Good Friday Agreement, which secured a fragile peace in Northern Ireland. It sets out in detail for the first time the drafting history of the declaration, set against the complex negotiating history of the Agreement as a whole, describing the multiple actors involved in the evolution of the declaration and their motivations, including republican and loyalist paramilitary groups, feminists and civil rights organisations, Irish and British civil servants and political advisors, as well as the political parties. It thus provides a detailed account of the evolution of human rights thinking at a critical stage of the Northern Ireland peace process. The article argues that it is now more important than ever to understand this history. Although originally conceived as merely declaratory, this declaration has, since the European Union–United Kingdom (EU–UK) Withdrawal Agreement following Brexit, taken on a new lease of life due to the Ireland–Northern Ireland Protocol to the EU–UK Withdrawal Agreement, which accorded the declaration of rights a legal status in domestic and international law that it did not have previously. The article concludes with a reflection on the implications of the history recounted in this article for the future interpretation and application of the Protocol (now, the Windsor Framework), and for the study of the historiography of human rights more broadly, emphasising in particular the extent to which the declaration exemplifies a syncretic rather than an eclectic human rights instrument.

Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under article 21(3) of the constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)

Article 21 of the Constitution of Uganda (1995) provides for the right to freedom from discrimination. Article 21(3) provides that for the purposes of Article 21, discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ Article 45 of the Constitution provides that ‘[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.’ In Uganda Law Society and 12 others v Attorney General (13 February 2024), the Constitutional Court invoked Article 45 and held that the list of prohibited grounds under Article 21(3) is not exhaustive. In this article, the author relies on the drafting history of Article 21(3), the jurisprudence of the Supreme Court on Article 21(3) and the literal interpretation of Article 21(3) to argue that the list of prohibited grounds in Article 21(3) is exhaustive and that the Constitutional Court erred when it held to the contrary. The author argues further that Article 45 should not be relied on to read rights into the Constitution. It should be applicable to statutory or common law rights.

Remission of sentences and the constitutionality of life imprisonment in Seychelles

Section 30 of the Seychelles Prisons Act provides that the sentences of all prisoners, except those sentenced to life imprisonment or convicted of drug-related offenses of an aggravated nature, can be remitted. Section 31 of the Prisons Act empowers the Superintendent of Prisons to grant a prisoner a license to be at large. Before 2021, Seychelles law was silent on the issue of whether a person sentenced to life imprisonment had to spend the rest of his/her life in prison. As a result, offenders sentenced to life imprisonment were released after serving between 15 and 20 years. Dissatisfied with this approach, the Court of Appeal held that life imprisonment should mean imprisonment for the remainder of the offender’s life. In 2021, the Criminal Procedure Code was amended to define life imprisonment as imprisonment for the remainder of the offender’s natural life. Article 60 of the Constitution empowers the President to commute any sentence. This implies that in theory, the President could invoke Article 60 to release offenders sentenced to life imprisonment. In this article, the author relies on, amongst other sources, jurisprudence from some African countries, the European Court of Human Rights, and international human rights bodies to argue that the sentence of life imprisonment as defined in Seychelles law is unconstitutional for violating the prisoner’s rights to human dignity and not to be subjected to inhuman and degrading treatment. The author also relies on the drafting history of Article 10(3) of the International Covenant on Civil and Political Rights to argue, inter alia, that life imprisonment without the possibility of release is contrary to Seychelles’ international human rights obligations.

DISPUTE SETTLEMENT MECHANISMS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: THE WAY FORWARD FOR MALDIVES

The maritime boundary delimitation judgment by the International Tribunal for the Law of the Sea between Mauritius and the Maldives was the first Maldivian dispute settled at an international court or tribunal. Regrettably, misinterpretation and misinformation regarding international laws and the Maldivian domestic laws related to the dispute became prevalent among the Maldivian community. One of the core concerns that need to be addressed is how Maldives got subjected to a legally binding dispute settlement mechanism concerning a dispute that was initially regarding the sovereignty over the Chagos Archipelago between two other States, namely: Mauritius and the United Kingdom. Additionally, it is important to determine whether Maldives has any other legal means to safeguard its maritime zones from future maritime disputes. The main objective of this paper is to explore the dispute settlement mechanisms under Part XV of the United Nations Convention on the Law of the Sea (LOSC) and determine how these provisions can be utilised to safeguard the Maldivian maritime zones. This research is primarily a doctrinal legal research. Firstly, the article outlines the provisions under Part XV of the LOSC whilst exploring its drafting history. Next, the article analyses the optional exception on maritime delimitation under LOSC Article 298(1)(a) and its significance to the Maldivian situation. It suggests that considering the undelimited outer continental shelves of Maldives, Maldives should consider declaring an optional exception under LOSC Article 298(1)(a). The article concludes that optional declarations serve as safeguards against premature and costly dispute resolution.

The President’s Role(s) in the Law-Making Process in Uganda

Abstract Articles 79(1) and (2) of the Constitution of Uganda provide that subject to the provisions of the Constitution, only Parliament or a person or body authorized by Parliament, has the power to make laws. Article 91 provides ways in which the President participates in the law-making process. I examine the Hansard of the 10th Parliament of Uganda (May 2016—May 2021) to demonstrate how the President invoked Article 91 to, inter alia, return Bills to Parliament or to decline to assent to Bills. The 10th Parliament passed 118 Bills, seven Bills were withdrawn and the President returned 11 Bills. The Hansard show that: (i) in most of the cases, Parliament amended the Bills to address the President’s concerns; (ii) there are instances in which Parliament appears to disregard the Constitution especially in cases where the President has exceeded the constitutional time limit within which he must assent to Bills; (iii) Parliament applied different methodologies to gather the information it needed to revise the Bills and (iv) in a few cases, Parliament disagreed with the President and declined to change the returned clauses of the Bills. The article shows, inter alia, that the President wielded enormous powers in the law-making process contrary to what was envisaged by the drafters of the Constitution. It is argued, inter alia, that in reconsidering the Bills returned by the President, Parliament should not ignore the issue of public participation otherwise the Acts may be declared unconstitutional. It is also argued, basing on the drafting history of the Constitution, that the 30-day period within which the President is required to assent to a Bill excludes Sundays and public holidays. However, it includes Saturdays.

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

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.

The right to apostasy recognised? Reaffirming the right to religious freedom

ABSTRACT The freedom of religion or belief is internationally recognized. However, studies demonstrate that the implementation of the right to apostasy, an essential aspect of this freedom, encounters difficulties in state practices. Doctrinal and historical research is conducted regarding the UN legal documents and the drafting history in order to demonstrate that the phrasing of the freedom to change religion in the provisions has been gradually altered since the legal establishment in 1948. Within the UN, member states have succeeded in changing the provisions, resulting in conceptual ambiguity regarding the right to apostasy. It is a matter of concern that there is little recognition, within the UN and in academia, of the fact that the explicit right to apostasy has been disregarded, resulting in diminishing the normative force of the religious freedom provision.

The Making of Uganda's Equal Opportunities Commission Act and Its Interpretation by the Commission

AbstractArticle 32(3) of the Constitution of Uganda (1995) establishes the Equal Opportunities Commission; section 14 of the Equal Opportunities Commission Act provides for the functions of the Commission. These include ensuring that the laws, policies and customs of both public and private entities are not discriminatory and do not marginalize any person or deny him / her equal opportunities. The Commission has handled a few complaints dealing with discrimination, affirmative action, marginalization and impairment of equal opportunities. I rely on the drafting history of the Act, among other sources, to argue, inter alia, that the list of prohibited grounds of discrimination under the Act is exhaustive and that the Commission does not have jurisdiction to deal with complaints alleging discrimination on some grounds. I demonstrate that the Commission has been inconsistent in its definition of discrimination and in dealing with remedies where it has found instances of discrimination, marginalization or denial of opportunities. In some cases, the Commission has blurred the distinction between discrimination and marginalization.

A Fresh Look at the 2005 Commission v. United Kingdom Judgment in Light of the Euratom Treaty’s Drafting History

Abstract This article provides a new example of a ‘fresh look at an old case’. It examines the 2005 Commission v. United Kingdom case in light of a study conducted using the Historical Archives of the European Union. The historical holdings contain many travaux ­préparatoires of the Treaty Establishing the European Atomic Community. These documents can be very useful for reconstructing the drafting history of the founding treaties and developing a historical interpretation of their provisions. In Commission v. United Kingdom, the same parties that participated in the negotiation process relied on these travaux préparatoires, and the Court of Justice of the European Union itself engaged in a historical interpretation of the provisions at stake. Taking this case as an example, this article delves into questions pertaining to the use of travaux préparatoires as a means of interpretation and the respective role of judge and historians in performing the task of shedding light on the original will of the contracting parties and on the historical context in which this will was shaped.

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

The Global South and global human rights: international responsibility for the right to development

Human rights are typically understood as governing the behaviour of states towards the people within their borders. In this article, I argue that this domestic formulation of human rights is not universal, but came about through political bargaining and contestation. From at least the early twentieth century, a range of actors from the Global South developed an understanding of individual and collective rights that emphasised international responsibility, especially of wealthy, powerful states towards people in poorer, weaker states. I show that this foundational understanding served as an important basis for the how the Global South engaged with economic and social rights within the United Nations before, during and after the adoption of the Universal Bill of Rights. It eventually manifested in the campaign for the human right to development. Through an exploration of the drafting history of the Declaration on the Right to Development, I show how international responsibility was kept out of the declaration by the Western states that stood to be held responsible. Examining this alternative understanding of human rights recovers a forgotten contribution of the Global South, while shedding light on obstacles to contemporary political projects like the campaign for international slavery reparations.

Getting Article 22(1) TRIPS Right: A Commentary on the Definition of ‘Geographical Indication’ from a European Union Perspective with a Focus on Wines

Abstract The article conducts an in-depth analysis of Article 22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights that provides the definition of ‘Geographical Indication (GI)’, focusing specifically on the field of wine. Particularly, the research analyses: (1) the concept of ‘indication’; (2) the words ‘quality, reputation or other characteristic’ and (3) the adverb ‘essentially’. Building upon the text of the Agreement; its drafting history and adopting the EU GI regime as a case study, the research concludes that: first, the concept of ‘indication’, in spite of its literal meaning and historical origin, can be subject to a very broad interpretation; second, wine remains a product characterised by a qualitative link with its area of production, although the importance of the ‘reputational link’ is growing; and, lastly, that the adverb ‘essentially’ introduces a margin of flexibility, thus allowing products that are not ‘exclusively’ related to a specific area to qualify for GI protection nonetheless.

The Seychelles Employment Tribunal: The drafting history of the Employment (Amendment) Act of 2008 and its relevancy to understanding the work of the Tribunal

In 1995, the National Assembly of Seychelles passed the Employment Act. However, the 1995 Act did not establish the Employment Tribunal. It is against this background that on 8 September 2008, the Employment (Amendment) Bill, was published in the Official Gazette. The bill was debated and passed in the National Assembly on 30 September 2008. It was assented to by the President a few days thereafter, that is, on 8 October 2008 and published in the official gazette on 13 October 2008 and it became the Employment Amendment Act (No. 21 of 2008). Immediately thereafter, the Employment Tribunal started its work. Since the coming into force of the Employment (Amendment) Act, the Tribunal, the Supreme Court and the Court of Appeal have developed rich jurisprudence on the application and interpretation of the Employment (Amendment) Act. However, in this jurisprudence, none of these institutions rely on the drafting history of the Employment (Amendment) Act although case law shows that there are instances in which Seychellois courts have referred to Hansard in interpreting legislation for the purpose of determining "legislative intent." In this article, the author relies on the drafting history of the Employment (Amendment) Act and in particular the Employment (Amendment) Bill (2008) and the verbatim debates of the National Assembly (Hansard) to argue that the manner in which the Tribunal, the Supreme Court or Court of Appeal have interpreted or applied the sections of the Employment (Amendment) Act dealing with the following issues is debatable: registering a grievance before the competent officer; registering a grievance before the Tribunal; and penalties by the Tribunal (especially compensatory awards).

The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 210(a) of the Constitution

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline.

The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 120(a) of the Constitution

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline.

Freedom of the Press in Uganda in the Light of the Drafting History of Articles 29(1)(A), 43 and 41 of the Constitution

Article 29(1)(a) of the Constitution of Uganda (1995) provides for the right to freedom of speech and expression, which includes freedom of the press and other media. Article 43 provides for the circumstances in which the rights in the Constitution may be limited, including the right to freedom of the press. Article 41 provides for the right of every citizen to access information in possession of the state. In 1989, Uganda embarked on the process of enacting a new Constitution. In this contribution, I demonstrate the drafting history of articles 29(1)(a), 43 and 41 of the Constitution by referring to the report of the Constitutional Commission and the Proceedings of the Constituent Assembly. It is submitted that some of the phrasing of article 29(1)(a) as agreed to by the Constituent Assembly delegates to extend the protection of the right to the freedom of the press was omitted from the final Constitution without explanation. Also, some of the phrasing of article 43 specifically excluded by the Constituent Assembly delegates was included in the final Constitution. This contribution refers to the case law on the right to the freedom of the press and argues that, when dealing with that right, the courts have not clearly explained the two parts under article 43. Since access to information is vital for freedom of the press, this contribution also demonstrates the drafting history of article 41 and refers to cases in which courts have interpreted it.