QUESTION 1
1.1 It has always been argued that international human rights law developed considerably
after the creation of the United Nations. Do you agree with this statement? Explain in full.
(15)
1.2 Critically discuss the concept of state sovereignty and its controversiality in respect of
the implementation and enforcement of International Human Rights Law. (10)
1.3 Discuss the status of international law in South Africa as part of substantive law and as
an interpretative tool using S v Makwanyane- 1995(3) SA 391 as a case study. (25)
QUESTION 2
The Global Disability Forum (GDF) is an International Non-Governmental Organisation
(NGO) which take cases on behalf of people living with disability who are victims of gross
violation of human rights globally. Despite, the success that GDF has achieved in the past,
their cases have recently been dismissed on procedural grounds before International Courts
and Treaty Monitoring Bodies. Among others, it has been argued that they have failed to
exhaust domestic remedies. GDF is currently preparing to take a class action case before
the African Court on Human and Peoples’ Rights (African Court) or alternatively the United
Nations Committee on the Rights of the Child.
The case is about access to education of children living with Disability in the Republic of
Putuma a Southern African country. Among the factors that impede the ability of children
with disabilities to access education are prohibitive costs associated with school fees,
transport, and special assistance.
, The Constitution of Putuma which is a replica of the South African Constitution is the
supreme law of the country and provides for the right of everyone to a basic education
which the state through reasonable measures must make progressively available and
accessible. The constitution further obligates the state not to unfairly discriminate against
anyone on one or more grounds including gender, sex, religion, disability, ethnicity, etc.
Putuma has ratified all the African Union Conventions and Protocols without reservations
including the African Charter on Human and Peoples’ Rights and the African Charter on the
Rights and Welfare of the Child (ACHRWC).
It has also ratified major United Nations Convention including the Convention on the Rights
of the Child and all its Protocols and the Convention on the Rights of Persons with
Disabilities and its Protocols. In the past, the Constitutional Court of Putuma, which is the
highest court in the land has dismissed similar cases regarding the right to education of
children living with disability on grounds of resources constraints.
GDF is of the opinion that there is no point to first lodge a similar case before domestic
courts in Putuma. GDF approaches you as an expert in human rights for a legal opinion
before they can approach the African Court on Human and Peoples’ Rights. Write a legal
opinion for GDF. In your opinion reflect on the following points:
a) Under what circumstances will this case be admissible before the Committee on the
Rights of the Child? In your answer refer to all the specific rights which have allegedly been
infringed in terms of the Convention on the Rights of the Child, procedural and substantive
matters as well as remedies available. (25)
b) Under what circumstances will this case be admissible before the African Court on
Human and Peoples’ Rights? In your answer refer to all the specific rights which have
allegedly been infringed in terms of the relevant AU conventions, procedural and
substantive matters as well as remedies available. (25)
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