Uganda: constitutional law

The implementation of international humanitarian law (IHL) is a continuous and evolving process. As such, the International Committee of the Red Cross (ICRC) co-operates closely with the Commonwealth Secretariat with the aim to advise and support Commonwealth states on developments in IHL and to assist them in meeting their IHL treaty obligations. The present update highlights some of the key issues and recent developments in IHL that are of interest to Commonwealth states.     

Common Wealth

After reviewing developments in human rights law and international law – in particular the domestication of international human rights law and the rise of the democratic norm in international law – the importance of these developments for the Commonwealth and for its member states is highlighted and linked to many of the programmes and policies that the Commonwealth Secretariat has recently launched. This paper discusses these developments and others in order to stress the wealth of potential advantages for Commonwealth member states and their citizens that flow from a common commitment under the rule of law to human rights and democracy. The authors endeavour to show that such wealth is more than mere economic benefit – as important as that undoubtedly is – and that citizens stand to reap a moral system of government, one which expands the opportunities for popular participation in political processes and puts an end to social practices that marginalise some citizens and empower others.     

Legal identity for all

This paper examines Sustainable Development Goal 16.9 on legal identity for all. It considers notions of legal identity in international law and looks at legal frameworks for legal identity in Commonwealth member countries, including in respect of birth registration, national identity registers and cards, legal identity requirements for transactions and services, and new forms of digital identity. The paper examines specific legal issues relevant to identity, including privacy and data protection, identity theft and property rights. It concludes by reviewing the latest developments in concepts of identity, and applicable emerging technologies. It makes recommendations in respect of legal and policy reform that Commonwealth member countries may undertake with a view to meeting SDG Target 16.9.     

Strengthening Humanitarian Law: Commonwealth countries and the Arms Trade Treaty

This article explores the role of Commonwealth countries with respect to the Arms Trade Treaty (ATT), which is now part of the body of international humanitarian law. This landmark instrument has, as its central objective, the establishment of the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms; prevent and eradicate the illicit trade in conventional arms and prevent their diversion. Trinidad and Tobago and other Member States of the Caribbean Community strongly supported the movement which culminated in the adoption of the ATT and participated actively in the negotiations which led to the conclusion of this historic Treaty. It is obvious that the international community now has within its arsenal an agreement, which, if embraced by all, could erase an ample amount of the pain and suffering associated with the billion dollar illegal arms trade. Commonwealth countries should continue to show leadership in this endeavour and work towards increasing the number of States Parties to the ATT.     

Whistleblowing Around the World Law,Culture & Practice

International humanitarian law (IHL) is a field in constant evolution and the International Committee of the Red Cross works closely with states to assist them in complying with their international treaty obligations. The present update provides an overview of the main developments that have taken place in IHL, with a particular focus on Commonwealth states.     

国际法在欧洲国家的适用问题研究

欧洲是国际法的发源地,关于国际法与国内法关系的学说最早于英国出现。国际习惯法与国际条约是国际法的主要渊源,考察欧洲国家适用国际习惯法与国际条约的法律规定与实践,国际法在欧洲国家有不同的适用问题。     

论欧盟法在成员国的适用

欧盟法主要由欧盟与成员国签订的基础性条约、欧盟与第三国或国际组织签订的条约和欧盟通过的条例、指令和决定组成。在欧盟内部,欧盟法可以直接适用,具有直接效力,并处于优先地位。欧盟法与成员国法的关系既不同于国际法和国内法关系,也不同于联邦法与成员邦法的关系。欧盟成员国各自适用欧盟法的实践,反映了欧盟法独特的适用方式,表明国际法日益得到普遍的尊重与遵守,主权国家自觉灵活适用国际法以维护国家利益,国际组织在国际法国内适用方面发挥重要作用。这是对现代国际法的丰富与发展。     

The role of national intellectual property laws in promoting innovation,scientific and technological development

This paper examines the role which intellectual property rights can play in stimulating innovation for sustainable development. It provides an overview of the international intellectual property regime and its relevance to innovation, technological and scientific development. It considers the role of national intellectual property laws in the context of innovation by focusing on a number of key areas, including the protection of traditional knowledge and genetic resources, and the diffusion of environmentally sound technologies. The paper highlights areas of intellectual property law and system reform and strengthening that may be a focus for Commonwealth member countries.     

STRIKING CONSISTENCY AND PREDICTABILITY IN INTERNATIONAL INVESTMENT LAW FROM THE PERSPECTIVE OF DEVELOPING COUNTRIES

The fragmentation of international investment law into bilateral investment treaties (BITs) and other international investment agreements (IIAs) made it impossible as a system of law. In addition, the potential for inconsistent and conflicting decisions (especially against developing countries) in investment treaty arbitrations are abundant. The causes of this situation are two-fold and concern both substantive law and procedural law. Concerning the substance, the fragmentation of sources of international investment law plays a significant role in disaggregating coherence. Due to the large number of BITs, a state measure might be assessed differently under the two existing investment treaties, with each treaty specifying different standards of investment protection, even varying with the nationality of the investor affected. Inconsistent decisions can also result from the possibility of having multiple proceedings, in the same or different form, relating to an identical set of facts that can arise from independent claims. For developing countries, who face investment law disputes more frequently than developed countries, an ideal solution would be a global investment treaty or a plurilateral investment agreement under the World Trade Organization (WTO) and use its dispute settlement system to resolve investment disputes.     

Commercial and company law and sustainable development

This paper reviews key areas of commercial and company law that are relevant to sustainable development. It includes an overview of international and regional frameworks, and examines good practice in national laws in the specific areas of company law, securities law and corporate insolvency. It does so with a view to providing conclusions and recommendations that represent a starting point for Commonwealth member countries when engaging with law reform and strengthening in the area of commercial law. The recommendations aim, in particular, at supporting law reform that enables commercial law frameworks to make a clear contribution to attainment of the 2030 Sustainable Development Goals.     

The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria

Nigeria, as a member of the Commonwealth, retains identical statutes to the UK and other Commonwealth countries on registration of foreign judgement. Nigeria also inherited the common law rules on the enforcement of judgement, like all other parts or former parts of the British Dominions. However, the Nigerian courts have construed these statutes very differently when compared with the way in which the statutes of other Commonwealth countries have been construed, and have sometimes approached the matter of enforcement of foreign judgement as if there are no extant common law rules on the matter. As a result, the need has clearly arisen for the attention of the Nigerian courts to be directed at the similarities between the Nigerian and other Commonwealth statutes on the matter, as well as the judicial practice of the other Commonwealth countries. This article presents a brief historical perspective and then demonstrates the identical features of the statutes, pointing out the perceived errors of the Nigerian appellate and apex courts.     

Member States of the Commonwealth – Their Relationship with the International Court of Justice

The removal of judicial independence from the motherland for several Commonwealth countries was fraught with difficulties. The determination of where final national appeals would lie has had a most colourful history in the Commonwealth. An extension of judicial dependence may arguably be expressed in the manner in which a state address disputes of international law and its choice of the appropriate tribunal for redress. It is argued in this article that independence did not seem to indicate that some Member States were willing to relinquish their desire to move too far away from the family of the British Commonwealth. Consequently, in accepting the Option Clause of the International Court of Justice (ICJ), a number of Commonwealth Member States entered a reservation which, inter alia, excludes disputes with the government of any country that is a Member of the British Commonwealth. Although today only eight Commonwealth Member States (including Britain) maintain this exclusionary clause, to the extent that these eight may find themselves bound by this clause presents some difficulty when there are disputes among these Member States. The author highlights these difficulties by examining the case of Mauritius and the Chagos Archipelago. Ultimately, the present day Commonwealth seeks dispute settlement through peaceful means, with an absolute respect for the rule of international law governing relations within and among its Member States.     

What the Trial Judge Needs to Know about the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

Since the 1950s, there have been several international multi‐lateral treaties for recognition and enforcement of child and spousal support orders. They operated, primarily, in civil law countries where “creditor‐based jurisdiction” allowed establishment of an order in the country of habitual residence of the child or the custodial parent. The United States, requiring “minimum contacts” with the debtor to establish personal jurisdiction, could not be a party to such agreements. For nearly fifty years the U.S., and a few states, sought to fill the need for international reciprocity by negotiating individual country‐to‐country or state‐to‐country arrangements. With ratification of the 2007 Family Maintenance Convention, the United States was finally able to join in a multi‐lateral treaty. The treaty took effect in the United States on January 1, 2017, establishing procedures for international recognition, enforcement and modification of family support orders with 35 other countries already party to the Convention (including the entire European Union). The grand bargain struck during the negotiations between 2003 and 2007 was that the U.S. would honor a foreign order if, under the facts presented, there were sufficient minimum contacts with the debtor that would have supported personal jurisdiction if the order had been entered in any state in the U.S. If unable to recognize a foreign order, the U.S. agreed to take steps to issue a new one. The treaty establishes administrative procedures that, in many respects, are nearly identical to interstate enforcement of domestic support orders in this country. But there are also aspects of the treaty that are entirely new and warrant explanation for family and juvenile court judges. This article focuses on several unique provisions of the treaty that judges and attorneys need to understand.     

条约制度的建立对传统法律变迁的影响——以地政管理制度为例

近代国门大开之后,中国融入国家交往的条约制度之中。通过双方的谈判与协商,确定各自享有的权利与承担的义务是条约制度的基本原则。谈判与协商这种互动的活动使得双方的法律意识与原则彼此产生影响。由于处于战败国的弱势地位,中国所签订的条约为不平等条约,中国方面更多地接受外来的影响。随着这些影响的日益加深,西方法律原则与制度大量地引入传统社会,法律制度开始向近代转化。条约制度的建立与传统社会法律变迁有着密切的关系。地政管理制度是这种关系的最好说明。     

Acts of Procuracy Supervision

In the Commonwealth of Independent States (CIS) a procurator is given quite broad powers to eliminate violations of legality. The laws on the procuracy of the majority of member countries of the CIS clearly regulate the forms of procuracy reaction in special sections (chapters).     

Controlling lethal autonomous weapons systems: A typology of the position of states

This paper seeks to understand the potential for robust global control of lethal autonomous weapons systems (LAWS). The paper seeks to uncover the predominant views and trends in global decision-making about such weapons systems by way of observing the positions and preferences of States inhabiting the international system as a realistic modality of a more probable normative outcome. Through a thorough examination of publicly available positions of United Nations (UN) Member States, it establishes a typology of varying positions maintained by States and reveals the argumentative rationale for the major positions advanced. This typology results to be far from unified and is composed of the following categories: (1) States that support the prohibition of LAWS; (2) States that support the prohibition of LAWS, but do not support calls for an international ban treaty; (3) States that do not support (or oppose) the prohibition of LAWS; (4) States with “flexible” positions over the LAWS: oppose use or use under certain circumstances, but not the development and production; (5) States that expressed support for multilateral talks, but have not expressed a position on the prohibition or not of LAWS; and (6) States that have called for a legally binding instrument (or legal regulation) on LAWS (inclusive of both prohibitions and regulations). Regulation and human control emerge as factors that have significant value in the equation.     

从西方人权话语拓展看中国人权话语的国际化

西方人权话语拓展的主要方式是软渗透和硬介入。软渗透表现为通过西方人权"区域理念--区域规则--国际规则--国内规则"的规范扩散,推动非西方国家接受由西方主导建构起来的国际人权规范体系,形成对西方人权话语的法律确信,最终实现"西方人权国际化"和"国际人权国内化"。硬介入表现为通过政治、军事、经济、外交等方式强行推动非西方国家接受西方人权话语并将之纳入国内法律秩序,加速了西方人权国际化。西方人权话语拓展引起"它变"和"自变"效果。一方面,面对软渗透和硬介入,非西方国家或者被动接受,或者借助条约批准、保留等国际法手段予以选择性认同或变通,甚至提出竞争性替代话语加以对冲。另一方面,西方人权话语也在内外因素下不断自我调适,逐步提升可接受性。中国对外拓展人权话语,应充分利用"百年未有之大变局"带来的战略机遇期,借助政治、经济、文化等多种途径,加速国际人权话语格局的变革;尽快形成以发展主义权利观为核心的人权话语体系,并通过对话来增进中国人权话语的价值共识;坚持发挥规范性力量的作用,学会利用国际法律机制,着力提升在国际人权体系内将中国理念和话语转化为国际规则以及保障国际规则被遵守的制度能力。     

Global Environment Threats and a Divided Northern Community

The EU, Japan, and the US now share many environmental norms, laws, and institutions and cooperate on international environmental matters through numerous bilateral and multilateral channels. They disagree, however, on how to deal with some of the most serious issues facing the global environment and the quality of human life including wide-scale biodiversity loss, climate change, the use of genetically modified (GM) organisms; the trans-boundary movement of hazardous wastes, and chemical safety. As these are all issues that require the involvement of developing countries if global environmental protection efforts are to be effective, the discord that exists among the Northern states is of tremendous significance. The US has pulled out of the Kyoto Protocol arguing that the treaty is poorly designed and would be detrimental to the US economy. Japan and the EU have had to try to find a way to bring the treaty into force without the participation of the world’s largest emitter of greenhouse gases and to convince participating countries to meet their targets even though this may put them at a competitive disadvantage. In the case of biodiversity loss, although the US initiated international negotiations on biodiversity preservation, it has refused to join the EU and Japan in ratifying the Convention on Biological Diversity. There are also differences between the US, on the one side, and Japan and the EU on the other, regarding the use of GM organisms. This article analyses the reasons for the differences that have emerged among northern states in their international environmental policy positions and what the implications of this northern policy divide are for the effectiveness and legitimacy of international environmental protection efforts.     

Disaster management,risk reduction and international disaster response laws in the Commonwealth

This paper considers the existence and use of disaster risk management laws across the Commonwealth. It commences by considering approaches to risk management and disaster response. It reviews international and regional disaster law, policy and tools. The paper examines national disaster risk management laws through the lens of a typology of laws, based on the complexity and scope of the disaster risk reduction and response system. It makes recommendations for Commonwealth countries relating to review of disaster laws, implementation of international frameworks, and the inclusion of disaster risk reduction, recovery, climate change, quality standards and the prevention of sexual and gender-based violence in disaster laws.     

Reflections on the International Legality of the Special Tribunal for Lebanon

This article addresses legal problems posed by Security CouncilResolution 1757 of 30 May 2007, establishing the Special Tribunalfor Lebanon (‘STL’). After describing the historicalbackground of the resolution (section 1) and the plan to establishthe STL as a treaty-based institution (section 2), the paperturns to an analysis of Resolution 1757 (section 3). The authorquestions whether the Council intended to bring the Lebanon-UNagreement into force as an international treaty, and holds thatthe UN Charter does not give the Council a power to unilaterallyimpose on a member state an obligation in the form of a treaty.The author argues that in Resolution 1757 the Council did notsubstitute a Chapter VII decision for the missing ratificationof the agreement by Lebanon, but instead established the STLby making the provisions of the agreement negotiated with Lebanonan integral part of a Chapter VII resolution. Section 4 thenquestions whether the Council was entitled to procure Lebanon'sconsent to be bound by a treaty by threatening unilaterallyto put those provisions into effect through a Chapter VII resolution.After discussing certain rules of the law of treaties concerningthe coercion of a state, the author concludes that it is notthat law but the UN Charter itself that prohibits the Councilfrom exerting pressure on a member state in order to make thatstate ratify a treaty.