Dualist Approach Research Articles

THE STATUS OF INTERNATIONAL AGREEMENTS CONCLUDED BY THE EUROPEAN UNION IN THE EU LEGAL ORDER

The European Union is a member of the international community and is a party to numerous international agreements. The status of these international agreements in the EU legal order however is not made expressly clear by the Treaties. The most pertinent question that arises is whether secondary EU law may be reviewed in the light of international agreements in annulment procedures or preliminary ruling procedures before the Court of Justice of the EU. In its jurisprudence the Court of Justice has tied the possibility of review to the question of the direct effect of international treaties, but there are some issues of consistency in this regard. This problem is a part of the broader question of the relationship of international law and EU law, including the question whether this relationship is more akin to a monist or a dualist approach.

Gaar As Tax Treaty Override – Slovak Perspective

AbstractThe article summarises the views on the interrelation of GAARs and tax treaties, abstracts defining criteria for the feasibility of GAAR as an anti-abuse instrument in tax treaty situations and applies these to the situation (legislation and case law) in the Slovak Republic. The aim of the article is to provide insight on the potential interrelation of GAAR rules with existing tax treaties and formulate policy advice that should be optimal given the facts at hand. It shows that GAAR in its current form would in general have limited effectiveness in tackling tax treaty abuse situations without it resulting in treaty override. This particularly applies to the Slovak Republic and likely to other states applying a monistic approach to international treaties, where the renegotiation of the treaty seems the only viable option. However, as in Slovakia the monist approach applies only to treaties ratified after July 2001, a different approach might be taken with respect to those that are still subject to a dualist approach.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

The Right of Child Victims of Armed Conflict to Reintegration and Recovery

Article 39 of the Convention on the Rights of the Child provides for the right to recovery and reintegration of child victims of armed conflict. In this publication an explanation is tendered of when children are considered to be victims of armed conflict. Specific reference is made to the question of whether or not a former child soldier may be viewed as such a child victim. In addition the question is addressed of how a monist or dualist approach in terms of which treaty law is incorporated into municipal law influences the rights of child victims in terms of article 39 of the Convention of the Rights of the Child. Thirdly, article 39 is discussed against the background of the international human rights instrument, the Convention on the Rights of the Child.

Editorial

This edition consists of 15 contributions – 12 articles and three case notes. In the first article, Janke Strydom and Sue-Mari Viljoen discuss the phenomenon where inner-city buildings in South Africa are unlawfully occupied, which has led to a number of legal disputes between occupiers and individual landowners. They propose measures analogous to those in England and the Netherlands to be added to the existing statutory powers of the local authorities to assist in resolving the disputes. Second, Tapiwa Warikandwa and Patrick Osode deal with the challenges the WTOs is faced with in balancing the rights of a sovereign power to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. Third, Andra le Roux-Kemp and Elsie Burger give a comparative perspective on some of the issues associated with litigating cases where the Shaken Baby Syndrome is the subject matter. Their focus is on the case law in the United States and United Kingdom. Fourth, Fatima Osman deals with the thorny issue of headscarves in South Africa, France, Turkey and Switzerland. She focuses on the reasons for the ban against their wearing and asks if the ban can be justified in the light of the human rights guaranteed to those individuals wanting to wear them. Fifth, Geo Quinot and SP (Fanus) van Tonder argue in favour of capstone courses to address some of the challenges facing legal education in general and the inadequacies of the LLB curriculum. Rolien Roos, in the sixth article, sets out to determine whether law can be regarded as a science which could be studied. She refers to the scholarly works of philosophers such as Dooyeweerd, Stafleu and Strauss and comes to the conclusion that the answer is all but straight forward. In the seventh article, Caiphas Soyapi considers the highly controversial provisions of the Traditional Courts Bill in a comparative context and recommends that the framers of the Bill should consider the situation in other jurisdictions in order to deal with some of the issues with the Bill. In the eight spot, Gerrit Ferreira and Anél Ferreira-Snyman examine the dichotomy that is created between the monist and dualist approach followed by the incorporation of international law into municipal law in the light of decisions of the South African Constitutional Court and the European Court of Justice. In the ninth article, Magda Slabbert and Darren Boome investigate the prospects of a convicted criminal who wants to become a lawyer, and in the tenth article Raheel Ahmed considers the role of “contributory intent” as a defence limiting delictual liability. In the second-last article Kananelo Mosito sets out to provide the reader with an understanding of the legal situation in Lesotho pertaining to social security and protection. Last but not least, Tamara Cohen and Lehlohonolo Matee give a comparative overview of the public servants’ right to strike in Lesotho, Botswana and South Africa.
 The first case note is by Tracy-Lynn Humby, who deals with the question of whether or not municipalities have the power to legislate on environmental issues such as biodiversity and conservation, as examined in the case of Le Sueur v Ethekwini Municipality in the KwaZulu-Natal High Court. The second note, by Johan Beukes and Christiaan Swart, discusses the case of Peel v Hamon J&C Engineering (Pty) Ltd, which deals with the remedy provided for in section 163 of the Companies Act (the oppression remedy). The last note is by Helen Kruuse and Julia Sloth-Nielsen, and debates the implications of Mayelane v Ngwenyama 
 

Political Parties and Women’s Rights in Turkey

Political parties are important political actors, but they are seldom studied in relation to human rights. This article examines the human rights discourse of political parties in Turkey by focusing on women’s rights. The content analysis of party programmes issued by major political parties between 1923 and 2007 reveals significant differences and changes in parties’ approach to women, ranging from no mentioning of women to addressing women’s issues from a feminist perspective. Women’s rights and issues, once neglected practically by all political parties, have gained attention during the last few decades, largely due to women’s activism. While conservative, religious, and Turkish nationalist parties started to display a dualist approach that combines traditionalism with gender equality, social democrat, socialist, and pro-Kurdish parties increasingly employ feminist terminology and analysis.

A Dualist Approach to Offshore Renewable Energy Governance: A Case for the Third World

The need for an environmentally sustainable alternative to fossil-sourced energy has led to a global increase in offshore renewable energy (ORE) ventures in the past decade. With fast-advancing technologies, these ventures are moving into deeper waters, putting the likelihood of ORE installations in the High Seas in sight. Concerns about potential conflict with other traditional uses of the marine space, marine pollution, inefficient and inequitable deployments have been raised. However, asides from few State-based regulatory frameworks, there is no international legal framework to regulate this burgeoning ORE industry. Adopting a socio-legal approach, this paper mainstreams Arvid Pardo’s argument for the equitable management of the ocean space as an ecological whole, to propose a dualist approach to ORE governance. This paper contends that the current global ORE structure is inequitable and inefficient and proposes ways existing structures can be adapted to regulate the burgeoning industry. Using Nigeria (and West Africa) as case study, recommendations have been made on the roles to be played by States and the International Community in a global ORE governance framework.

The Effect of the Judgments of the ECtHR before the National Courts – A Nordic Approach?

The article examines the status of the principle of res interpretata in Denmark, Norway and Iceland and whether a common approach can be identified. Common to these countries is the dualist approach under which a binding erga omnes effect of the judgments is rejected. The right to autonomous interpretation of the echr is reserved, as well as autonomous interpretation of human rights provisions of the national constitutions, regardless of ECtHR case law. The echr has been incorporated in all countries as statutory law and does not take primacy over national constitutions. Moreover, in order to override a national law, the reservation is made that the Convention and the case law of the ECtHR must be clear and consistent. Despite these reservations, national courts in all three countries regularly (although inconsistently) consult ECtHR case law, not as binding per se, but within the framework of res interpretata and the rule of presumption.

Understanding Negation Implicationally in the Relevant Logic R

A star-free relational semantics for relevant logic is presented together with a sound and complete sequent proof theory (display calculus). It is an extension of the dualist approach to negation regarded as modality, according to which de Morgan negation in relevant logic is better understood as the confusion of two negative modalities. The present work shows a way to define them in terms of implication and a new connective, co-implication, which is modeled by respective ternary relations. The defined negations are confused by a special constraint on ternary relation, called the generalized star postulate, which implies definability of the Routley star in the frame. The resultant logic is shown to be equivalent to the well-known relevant logic R. Thus it can be seen as a reconstruction of R in the dualist framework.

Protecting International Civil Rights in a National Context: Danish Law and Its Discontents

The effective impact of international law on national civil rights protection is dependent on being implemented in a modality that allows for the actual use of international rules in domestic courts. With particular reference to the Danish case, this article investigates the effects of lack of ratification for the placement of civil rights in the ranking of sources of law, the issues arising from a dualist approach to international law, and the impact of judicial restraint in resolving conflicts of rights in practice. The study’s focal point is the legal rules and modalities for reception of international standards which can be, in any national legal context, more or less suitable for an appropriate protection of civil rights. The article’s enquiry aims to help revive a debate on these modalities for reception which in practice have a great impact on the effective realisation of civil rights, especially in judicial settings.

Powers, Double Prevention and Mental Causation

Abstract S. C. Gibb holds that some mental events enable physical events to take place by acting as ‘double preventers’ which prevent other mental events from effecting change in the physical domain. She argues that this enables a dualist account of psychophysical interaction consistent with the causal relevance of mental events, their distinctness from physical events, the causal closure of the physical and the exclusion of systematic overdetermination. While accepting the causal powers metaphysic, this paper argues that: Closure is maintained only on the assumption of an implausible pre-ordained harmony between preventing and double-preventing mental events. Distinctness is preserved only at the cost of positing brute unexplained powers of mental and physical events to causally interact with each other. Exclusion is systematically violated in a substantial number of everyday cases. The case for Relevance made by the Double Prevention model is accordingly too weak to sustain a dualist approach to mental causation.

Theatre for the Dead

This article refers to the famous question of the politicization versus aestheticization of art, recently discussed by Boris Groys in terms of usefulness and uselessness, or “design” and “art proper,” and, by criticizing Croys’ dualist approach, shows that in the biopolitical framework of contemporary ideology, the usefulness and uselessness pass into each other and thus create a circle within which any art is presented as individual or social therapy, or a sort of pharmakon that is both poison and cure. In search for another conception of art, the article addresses to some radical avant­garde conceptions of theatre, such as Artaud’s Theatre of Cruelty and Tadeusz Kantor’s Theatre of Death, and, reflecting through the ways of recombining elements and principles of what Alain Badiou characterized as a “leftist threat” for the theatre, demonstrates a rational political kernel of their destructive force.

Comparative Resources: Continental Philosophy and Daoism

I argue that continental philosophical resources are more appropriate for comparative philosophy regarding classical Daoism since they in various ways challenge the dominant metaphysical orientation of Western thought and give us a better and more appropriate vocabulary to make sense of important Daoist ideas within the confines of Western languages. Since classical Daoism is largely non-metaphysical or at least not metaphysical in the same way as the Western history of philosophy is, it makes sense that those within the Western tradition who have sought to displace the dominant metaphysical tradition would be more in tune with such non-metaphysical considerations. I focus on Nietzsche, Heidegger, and Derrida and present three interrelated areas of comparison with classical Daoism. First, I discuss the constant complication of any seriously dualist approach and with that the attempt to put humans in a constructive and primarily interdependent relationship with the rest of the world, which points to a form of process philosophy. Second, I focus on ideas regarding the use and limitations of language that both traditions display, and on the resulting efforts to understand language differently. Lastly, I present the decentering of the subject or the self is another feature prominent in both Daoism and the continental thinkers, although in different ways.

The Meso Level: Means of Interaction between EU and International Law

The EU is bound by international law, in that when it adopts an act it shall observe international law ‘in its entirety, including customary international law, which is binding upon the institutions of the European union’.1 This commitment is expressed in Article 3(5) of the Treaty of European Union (TEU), which provides that ‘the EU shall uphold and promote … the strict observance and the development of international law’. Yet, despite the periodic treaty revision, EU law is still not explicit about the relationship between international law and EU law. It also omits to provide an account regarding the incorporation and effect of international law upon the EU legal order. The EU Treaties merely highlight the binding character of international treaties upon the Member States,2 and charge them (or at least the founding Member States) with the task of taking the necessary steps to eliminate any incompatibilities between international agreements signed before 1958 and the EU Treaties.3 In recent years, the CJEU has clarified the effect of international treaties upon the EU legal order and has adopted a dualist approach. While forming an integral part of EU law, international agreements are only binding on private individuals by virtue of an act of an EU institution (ie a decision or regulation formally concluding the agreement in question).4

Law in Mind: Towards an Explanatory Framework for Customary International Law

The sweeping majority of international legal theorists insists on a dualist (bipartite) approach to customary international law, a position that suggests that it consists of two elements: opinio juris/acceptance and general state practice. This approach has so far failed to provide a consistent and coherent account for this form of international law. This article develops a monist, intersubjectivist interpretive framework with due regard to Article 38(1)(b) of the Statute of the International Court of Justice. The general aim is to find a new perspective that provides an appropriate conceptual background to handle successfully the particular problems surrounding customary norms.

Serious flaws in an FMS interpretation of physical literacy

A number organisations, both nationally and internationally, have adopted physical literacy as an over arching concept for developing work with children. Closely associated with this development is the adoption of fundamental movement skills. However, both concepts appear to have been adopted uncritically without a consideration for their suitability or relevance. The following issues will be addressed in this presentation. FMS completely ignores the central tenets of Physical Literacy in Margaret's Whitehead's 2013 definition and its philosophical foundation where movement can only be understood in relation to the environment. FMS is a dualist approach and neglects the essential embodied nature of learning. There is an assumed correctness of this approach (in the Canadian literature). Physical Literacy appears to be used in order to augment the status of FMS and provide educational validity because it has a theoretical framework. Making a link with literacy such as alphabet, words and sentences is a misunderstanding of how literacy is acquired, and how the term physical literacy is used. The narrow focus on learning fundamental motor skills can neglect other important learning objectives. This focus also ignores the understanding required to learn to value purposeful physical pursuits. Self-directed learning, independence and responsibility do not appear to be part of the FMS framework. There is an assumption that FMS is associated with an initiation into competitive sport and also health. These are taken-for-granted objects of learning that demonstrate a lack of understanding of what they entail in theory and practice. The science in the FMS research appears to make too many assumptions and inappropriate associations. FMS has become an overarching term for a wide range of promotions with a focus on motor development. As a result there has been an uncritical acceptance that it is central to physical education.

Treaties, Conventions and the Constitution of Kenya 2010

The law of treaties in Kenya received constitutional underpinning through Article 2(6) of the 2010 Constitution. A number of questions grow from this and may determine how treaty law and municipal law interact in the growing jurisprudence of international law before Kenyan courts. These include the extent to which the dualist approach has ended under Article 2(6) of the Constitution: do treaties still need legislation to transform them into binding law to be applied by the courts? Furthermore, where do treaties fit into the hierarchy of norms within Kenya? Finally, how do the courts negotiate conflicts with treaties that specifically claim a supra-constitutional position- such as the East African Community Treaty and treaties incorporating jus cogens norms? This paper addresses these questions by analysing the constitution, prior drafts and international law and practice. It also compares Kenya's constitutional system with various systems around the world to draw useful answers to these questions.

”Personal Autonomy” and “Democratic Society” at the European Court of Human Rights: Friends or Foes?

In this contribution, we first argue that the ECtHR has come to develop a salient dualist reasoning under Articles 8-11. Although the ECtHR has held that all those articles serve the overarching ideal of ‘democratic society’, its right-based reasoning can be differentiated. On the one hand, the ECtHR has focused on the free circulation of ideas and opinions – in particular, those held on issues of public interest – in its treatment of the freedoms of expression (Article 10) and assembly and association (Article 11). The more those views are subject to prohibition, the more the margin of appreciation is reduced. On the other hand, the ECtHR has focused on the notion of ‘personal autonomy’ to adjust its margin of appreciation under Articles 8-9. The more personal autonomy is endangered, the more it reinforces the scrutiny in the assessment of reasons for an interference. Secondly, we argue that such dualist approach stands in need of clarification. Could individuals reasonably express and develop their views on issues of public interest without assuming their autonomy? Conversely, can the ECtHR assert that freedom of religion pertaining to the forum internum – typically, religious beliefs – has no relevance in the expression of personal views on issues of public interest? By contrast to most views in the literature, our argument does not rely on a prior normative theory of the virtues of a ‘legal system’ – such as legal certainty, coherence and harmony – that generally target the ambiguous use of the margin of appreciation doctrine, or on a prior normative theory of the values that ECtHR should protect. Rather, our argument relies on the conceptual vagueness that follows from the ECtHR’s differential reasoning. The current application of the margin of appreciation implies that there are not only different ‘localised system of values’ among State Parties, but that there are different ‘localised democratic societies’.

The Kadi Case - Constitutional Core Values and International Law - Finding the Balance?

The Kadi judgment of the European Court of Justice has provoked severe criticism. The Court’s dualist approach was described as unfaithful to its traditional fidelity to public international law and inserting itself in the tradition of nationalism. However, we argue that the Court indicated a possible opening to allow for precedence of Security Council measures, if sufficient safeguards for human rights are created. Moreover, it seems that the Security Council has risen to the challenge by introducing a strong review mechanism. Though this mechanism cannot exclude all possible conflicts between EU and UN law, it can significantly reduce the risk of divergent decisions.

The Parliament of Malta versus the Constitution of Malta: parliament’s law-making function under section 65(1) of the Constitution

This paper analyses section 65(1) of the Constitution of Malta, a provision that empowers parliament to make laws subject to certain restrictions, within the context of Malta’s dualism. Although parliament is subservient to the Constitution, the 2003 amendments made by the European Union Act to section 65(1) have further curtailed parliament’s law-making function. Parliament has to observe five new standards when enacting legislation. These standards have brought about a shift from Malta’s dualist approach to law making towards a mixed one of dualism/monism. The paper concludes that there is an inconsistency between section 6 of the Constitution proclaiming the Constitution to be suprema lex and section 3 of the European Union Act announcing European Union law as supreme law. However no conflict should arise in practice once Maltese law, in terms of section 65(1), has to confirm with Malta’s regional obligations including those assumed under the European Union Accession Treaty.