Masters Degrees (Public Law)

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Browsing Masters Degrees (Public Law) by Subject "African regional human rights system"

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    The allocation of resources for the realisation of women's rights : an analysis of article 26(2) of the Maputo Protocol
    (Stellenbosch : Stellenbosch University, 2020-12) Doubell, Lize-Mari; Rudman, Annika; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The Maputo Protocol is the leading women’s rights treaty in Africa. However, the treaty can only be effectively implemented if resources, aimed at its realisation, are generated and spent through government policies and budgets. Article 26(2) of the Maputo Protocol provides that state parties are obligated to adopt all necessary measures, which include budgetary and other resources, for the full and effective implementation of the rights therein recognised. After examining how state parties to the Maputo Protocol and the supervisory bodies currently mobilise resources to realise women’s rights, it was established that article 26(2) is severely underutilised and/or incorrectly applied by state parties. Some of the main reasons for this is a misallocation of resources and that state parties do not fully understand their obligations under the Maputo Protocol. Thus, women are left disempowered and unprotected. To address these concerns, this thesis establishes the nature of state obligationsunder article 26(2) through developing an interpretative framework for resource allocation to realise women’s rights. Anti-essentialist feminist legal theory and gender responsive budgeting are used as the theoretical framework guiding the research. As Africa is such a diverse continent, the analysis of anti-essentialist feminist legal theory ensures that the complex needs of women with multiple identities and lived realities are considered. The substantive realisation of human rights cannot be separated from resource allocation; thus, gender responsive budgeting provides a lens through which holistic budgeting for women’s rights can be understood. This thesis also considers how other international supervisory bodies, such as the CEDAW Committee and the CESCR, have interpreted resource allocation for the realisation of human rights. These supervisory bodies have, through their various mandates, provided a rigorous interpretation of how state parties should generate and spend resources to ensure human rights are kept at the forefront. This thesis finds that state parties to the Maputo Protocol, and the supervisory bodies, still have a long way to go to ensure that article 26(2) is fully interpreted and implemented. However, there are immediate steps which all parties can take, including commencing long-term strategies, which will result in more holistic gender responsive budgets and policies. The African Court, the African Commission, the Special Rapporteur, civil society and state parties all need to work together to ensure that women’s rights are fully protected.
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    The protection of African transgender women's rights to dignity, life and health through a teleological reading of the Maputo Protocol
    (Stellenbosch : Stellenbosch University, 2019-12) Snyman, Tegan Colleen; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: International human rights law asserts that all individuals are born free and equal in dignity and rights. The principle of universality, read together with the rights to equality and non-discrimination, embody this pronouncement and reaffirm that all human rights are bestowed unto all humans because they are human. This is accepted and reflected in most regional and domestic legal systems worldwide. Nonetheless, on the African continent, this pronouncement does not guarantee protection of the human rights of African individuals with non-normative gender identities. African transgender women in particular are an invisible minority, often misidentified as homosexual men. As a result, they frequently become victims of violence, discrimination and stigma. Because of their non-normativity and the denial of their gender identities and womanhood, these women are deprived of legal recognition and the protection of their rights. Moreover, this discrimination and the subsequent violations against them are justified by states as part of their cultural beliefs and/or traditions. Accordingly, the argument of the ‘relativism’ of human rights is presented by many states as defence for the prioritisation of ‘religious and cultural’ rights over gender identity rights. However, this is a failure of states to recognise that individuals with non-normative gender identities are human beings, entitled to their fundamental human rights. Treaties are a key mechanism of international law. Accordingly, treaty interpretation is an important tool to understand and implement international law. Whilst there are three approaches to interpretation typically recognised, the teleological approach to treaty interpretation, also known as the purposive approach, is argued to be the most effective in the interaction with human rights treaties. The Maputo Protocol is a regional African treaty which codifies the rights of African women. In the Maputo Protocol ‘women’ are defined by their female gender. Therefore, this thesis assesses whether African transgender women are recognised and protected through a teleological interpretation of the Maputo Protocol, in consideration of the definition for women set out in the Protocol. This assessment is done through an application of post-modern intersectional feminist legal theory, queer legal theory, the principle of universality as well as the rights to equality, non-discrimination and dignity.