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Littérature scientifique sur le sujet « Customary law courts – Tanzania »

Auteur : Grafiati

Publié le 10 mars 2023

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Articles de revues sur le sujet "Customary law courts – Tanzania"

Msuya, Norah Hashim. "Challenges Surrounding the Adjudication of Women's Rights in Relation to Customary Law and Practices in Tanzania." Potchefstroom Electronic Law Journal 22 (April 25, 2019): 1–29. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5012.

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Women's rights litigation has produced varied outcomes in many African countries. Although courts have looked at the legislation that discriminates against women with different degrees of success, matters such as tradition and culture continue to be unpredictable when subject to lawsuit. In Tanzania, the judiciary has gradually begun to recognise that discrimination on a prescribed ground cannot be justified. However, this principle has not blocked some judges from maintaining that gender discrimination based on customary rules can still be justified, despite the existence of internal, regional and national human rights law, which prohibits it. It is contended that the judiciary has a significant role to play in ensuring that customary law and harmful traditional practices are reformed and advanced to comply with human rights legislation and ensure equality between men and women in Tanzania. 

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Coutsoudis, Andreas. "Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade." South African Law Journal 140, no. 1 (2023): 53–94. http://dx.doi.org/10.47348/salj/v140/i1a4.

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Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.

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Rautenbach, Christa. "Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?" Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–20. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7591.

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This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law.

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Badejogbin, Rebecca Emiene. "The Conundrum of Judicial Notice as a Means of Ascertaining Customary Law in Nigerian and South African Courts amid the Convergence of Positivism and Legal Pluralism." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–31. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7589.

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The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law.

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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.

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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

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O’Keefe, Roger. "CRIMES, THE COURTS AND CUSTOMARY INTERNATIONAL LAW." Cambridge Law Journal 65, no. 3 (2006): 473–76. http://dx.doi.org/10.1017/s0008197306217203.

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Care, Jennifer Corrin, and Jean G. Zorn. "Legislating for the Application of Customary Law in Solomon Islands." Common Law World Review 34, no. 2 (2005): 144–68. http://dx.doi.org/10.1350/clwr.34.2.144.65366.

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This article examines the problems surrounding the application of customary law in the formal courts of Solomon Islands. Commencing with a brief explanation of the status of customary law, it considers the vexed question of proof, in the context of decided cases. It also analyses three Solomon Islands Acts relevant to proving customary law: the Wills, Probate and Administration Act 1987, the Solomon Islands National Provident Fund Act 1973 and the Customs Recognition Act 2000. The article then considers the future of customary law in the formal courts of Solomon Islands.

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Silambi, Erni Dwita, Pangerang Moenta, Farida Patittingi, and Nur Azisa. "Ideal Concept of Traditional Justice in Solving Criminal Case." Academic Journal of Interdisciplinary Studies 11, no. 1 (2022): 293. http://dx.doi.org/10.36941/ajis-2022-0026.

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Customary law is an unwritten rule that lives in the customary community of an area and will continue to live as long as the community still fulfils the customary law that was passed on to them from their ancestors before them. Settlement in criminal cases through customary law that produces results is a form of legal certainty. This study aims to determine the ideal concept in resolving criminal cases through customary courts in Merauke Papua. The method used in this study is a combination of normative legal research and empirical legal research with the reason that the author wants to examine the norms related to the problem of resolving customary criminal cases and seek direct information on the implementation of customary justice in Merauke Regency which is presented descriptively. recognition of customary courts must be stated in writing in the law on judicial power so that this institution has a clear legal basis and its decisions can be recognized so that it does not need to be tried again through national courts, criminal threats under five years must be resolved through customary courts and are final decisions  Received: 23 August 2021 / Accepted: 25 October 2021 / Published: 3 January 2022

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Coldham, Simon. "Customary Marriage and The Urban Local Courts in Zambia." Journal of African Law 34, no. 1 (1990): 67–75. http://dx.doi.org/10.1017/s0021855300008202.

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The local courts of Zambia are the successors to the native courts which the British set up in Northern Rhodesia, as elsewhere in colonial Africa, to administer justice to Africans. However, while the system of native courts originally existed in parallel with the system of English-style magistrates' courts, after independence the native courts (re-named local courts) were integrated into the judicial system, with appeals lying to subordinate courts (i.e. magistrates' courts) of the first or second class. Although it was the ultimate goal of the government to have a fully professionalised judiciary (a policy adopted by Kenya in 1967), it recognised that the local courts still had an important role to play in the administration of justice, particularly in the rural areas. Twenty years later it looks as if their future is secure. If the amount of business transacted by the local courts and the paucity of appeals from their decisions provide an indication of their popularity and effectiveness, they would seem to have proved their worth.Like their predecessors, the local courts have a limited criminal jurisdiction, but the bulk of their business is civil. They have jurisdiction in most civil matters where the claim does not exceed 200 kwacha. Some of these cases are actions for the recovery of a debt, actions for assault or actions for defamation of character (most frequently, accusations of witchcraft), but the majority of the cases could be broadly categorised as “family” cases, including divorce, adultery, seduction and inheritance claims.

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van der Wilt, Harmen. "State Practice as Element of Customary International Law: A White Knight in International Criminal Law?" International Criminal Law Review 20, no. 5 (2019): 784–804. http://dx.doi.org/10.1163/15718123-02001003.

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Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

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Thèses sur le sujet "Customary law courts – Tanzania"

Mqeke, Bangilizwe Richman. "Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei." Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1003202.

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In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.

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Moyo, Kerbina. "Women's Access to Land in Tanzania : The Case of the Makete District." Doctoral thesis, KTH, Fastighetsvetenskap, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:kth:diva-202913.

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Access to land is crucial for combating discrimination. Women who are denied such access tend to be disadvantaged, a pattern that results in economic powerlessness. Tanzana is among the most undeveloped nations in the world, where gender inequalities with respect to accessing land are central problems. This study consequently aims at investigating women's access to land through customary land tenure in the Makete district in Tanzania. A case study strategy was adopted to address the research problem, whereby interviews, focus group discussions and documentary reviews were the main data collection methods. The findings indicate that the majority of women within villages are illiterate; unaware of any existing entitlements and lacking insufficient assets to fight for their rights, and that their involvement in land administration institutions is limited. At the familiy level, daughters and women are deprived of any right to possess land through inheritance because relatives believe they will be married to other families from which they will then gain access to land. This generally has been proven not to be the case. After marriage, women commonly are apportioned land strictly for crop cultivation (usufruct rights). Consequently, there are many challenges in realising women's property rights in Tanzania. These challenges include the dualisim of the property rights system: customary tenure operates alongside statutory tenure; inadequate knowledge about women's property rights by both women and men; negative attitudes towards women's influence, position, capability and reputation; outdated customs; archaic and conflicting interests in laws; and lack of legal capacity (empowerment) as to property rights. The most important tools for meeting these challenges include education and awareness campaigns that are designed to build the capacity of citizens as to the necessity of equity in access to property rights (land) using various legal tools at varying levels. Other measures include amending and repealing outdated laws, including provisons dicriminating against women's property rights and contradicting constitutional provisons and other international instruments. Other avenues are advocacy and working for behavioural chages can also be invoked by empowering individuals at all stages of life, supporting their involvement in productive activities and creating group networks, and facilitating the formation of community-based organisations as well as building capacity by mainstreaming land adminstration institutions. QC 20170315

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JOSIPOVIC, Ivona. "The International Criminal Tribunal for the Former Yugoslavia's approach to customary law : the case-study of the Mens Rea of imputed command responsibility." Doctoral thesis, European University Institute, 2007. http://hdl.handle.net/1814/9971.

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Kirby, Coel Thomas. "Exorcising Matovu's ghost : legal positivism, pluralism and ideology in Uganda's appellate courts." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=112605.

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In 1966, the High Court of Uganda legitimised the new nation's first coup d'etat. After two decades of civil war, Ugandans enacted their first popular constitution in 1995. However, the judiciary's dominant positivist ideology, Matovu's ghost, still haunts the new legal order. The author sets out this ideology's presumptions and then critiques them against an alternative, pluralist map of laws in Uganda. The constructive analysis of recent case law (or lack thereof) that follows shows how this ideology undermines the constitution's promises of equality and freedom. This pluralist methodology is also essential to explain contemporary crises like the Lord's Resistance Army, arms proliferation in Karamoja and Museveni's "no-party" rule. In conclusion, exorcising Matovu's ghost is a priority for Ugandans and the process deserves considered thought for legal scholars advocating the "rule of law" or interventions by the International Criminal Court.

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LÄMMERT, Stephanie. "Finding the right words : languages of litigation in Shambaa native courts in Tanganyika, c.1925- 1960." Doctoral thesis, 2017. http://hdl.handle.net/1814/47028.

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Defence date: 26 June 2017 Examining Board: Prof. Corinna Unger, EUI (First Reader); Prof. Federico Romero, EUI (Second Reader); Prof. Andreas Eckert, Humboldt University Berlin (External Supervisor); Prof. Emma Hunter, University of Edinburgh (External Examiner) This Ph.D. thesis is concerned with the way litigants of the Usambara Mountains in Tanganyika spoke and wrote about their disputes and grievances under British rule. Language and narratives are at the core of my analysis. While I will give an overview of litigation patterns of the so-called 'native courts' in the Usambara Mountains from the late 1930s to 1960, and will examine clusters of recurring cases, my main concern is not to write a social history of these courts, but a cultural one. I am interested in recurring narratives and their intellectual roots. What kind of language did the Shambaa and other African litigants use in lawsuits and the many petitions and letters that accompanied their suits? What might have influenced them in their strategic choice of language? What intellectual sources did they draw from? While I am also interested in the outcomes of cases and the success of narratives, my objective is to treat these emerging narratives as windows into specific local perspectives. Why did Shambaa litigants depart so markedly from legal language? Was the legalistic language unsuitable for a specific Shambaa understanding of the law, or were the courts themselves not perceived as places for the dispensation of justice?

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Museke, Vicent. "The role of customary courts in the delivery of justice in South Sudan." Diss., 2015. http://hdl.handle.net/10500/19905.

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This study examines the role of customary courts in the delivery of justice in South Sudan. In doing so, it analyses the legal background, the hierarchy and composition of the customary courts. The considerations behind the constitutional recognition of the customary law courts in the current constitutional dispensation and the jurisdiction of customary courts are limited to customary matters and only criminal cases with a customary interface. It is noted that the customary Judges do not only exercise judicial functions but also play executive and legislative functions which contravene the constitutional principle of separation of powers. Reconciliation and compensation are noted as the major principles applied in the customary law courts. The major concern is that most practices in the customary law courts violate fundamental human rights. Public, Constitutional and International Law LLM

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Singh, Vijyalakshmi. "South African indigenous courts : challenge for the future." Diss., 1994. http://hdl.handle.net/10500/16044.

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The purpose of this study is to access the viability of traditional African courts in a future legal dispensation in South Africa. The research method used is a study of literature, court decisions and relevant statutes. The development of indigenous courts in South Africa is broadly outlined. As an analogy to the South African court system, the courts of Lesotho, Swaziland and Botswana are used to illustrate the dual systems of courts. Rapid urbanisation is discussed to illustrate that despite the increasing urbanisation, traditional values remain inherent to South African Blacks. The salient features of indigenous courts are analysed to facilitate the development of reform measures that have to be implemented so that the courts can meet the challenge of the future. Constitutional, International & Indigenous Law LL.M.

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PONTHOREAU, Marie-Claire. "La reconnaissance des droits non-ecrits par les cours constitutionnelles italienne et francaise : Essai sur le pouvoir createur du juge constitutionnel." Doctoral thesis, 1991. http://hdl.handle.net/1814/4754.

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Defence date: 29 November 1991 Examining board: Prof. B. de Witte, I.U.E., superviseur ; Prof. L.M. Diez-Picazo, I.U.E. ; Prof. J.C. Escarras, Toulon ; Prof. A. Pizzorusso, Pise ; T. Renoux, Aix-Marseille ; Prof. M. de Villiers, Nantes PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

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Van, Niekerk Gardiol Jeanne. "The interaction of indigenous law and Western law in South Africa : a historical and comparative perspective." Thesis, 1995. http://hdl.handle.net/10500/17738.

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Historically South African law has been dominated by Western law. Indigenous law and the jural postulates which underpin that law are insufficiently accommodated in the South African legal order. The Western component of the official legal system is regarded as institutionally and politically superior and is as such perceived to be the dominant system. In contrast indigenous law is regarded as a servient system. The monopolistic control of the legal order by the Western section of the population resulted in the creation of a legal order primarily suited to its own needs. The fact that few of the values of indigenous law are reflected in the official legal system and the fact that there is a measure of conflict and tension between the fundamental precepts of indigenous law and those of Western law, gave rise to a crisis of legitimacy of the official legal system in South Africa. This in turn lead to the emergence of unofficial alternative structures for the administration of justice. Indigenous law should receive full recognition and enjoy the same status as Western law. To accomplish this, legislative measures which entrench a distorted indigenous law, limit the application of indigenous law, or affect its status in the South African legal order, should be revoked. Even in a multicultural society such as that of South Africa, there is a common nucleus of core values that are shared by the whole society. But different cultures have different conceptions of these basic values and their role in legal, political and social ordering. The Bill of Rights should give due recognition to the postulates which underscore both Western and indigenous law. This should be done by providing that the values the Bill entrenches, must be interpreted in their proper cultural perspective where circumstances so demand. But this will be possible only if the level of knowledge of indigenous law and its fundamental precepts is drastically improved. LL.D

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Ntshauba, Siwethu Thomas. "Tsenguluso ya mbambedzo ya thandululo ya thaidzo dza mafhungo a ṱhalano khoroni dza musanda na khothe dza muvhuso tshiṱirikini tsha vhembe, vunḓuni ḽa Limpopo". Thesis, 2016. http://hdl.handle.net/10500/22557.

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In Venda with English abstract Hei thyisisi i vhambedza thandululo ya thaidzo dza mafhungo a ṱhalano khoroni dza musanda na khothe dza muvhuso. Saizwi Ndayotewa ya Riphabuḽiki ya Afrika Tshipembe, mulayo 108 wa 1996, i tshi ṋea muṅwe na muṅwe pfanelo dza u shumisa luambo lune a lu takalela, nyambo dzoṱhe dza tshiofisi dzi tea u shumiswa u lingana kha thandululo ya thaidzo dza ṱhalano khoroni na khothe. Hei thyisisi i sumbedza nyambo dza English na Afrikaans dzi dzone dzi re na mutsindo musi hu tshi itwa thandulululo ya thaidzo dza ṱhalano ngeno luambo lwa Tshivenḓa na lwa vhaholefhali vha u pfa lu sa pfali. Nga nnḓa ha u ḓiphina nga mbofholowo ya u shumisa Tshivenḓa sa luambo lwa tshiofisi kha u amba, lu shumiswa zwenezwo fhedzi huna muṱalutshedzi wa khothe. Ngauralo, hei thyisisi i khou ita khuwelelo ya uri tshifhinga tsho swika tsha uri muvhuso u ṋee luambo lwa Tshivenḓa vhuiimo vhu eḓanaho na nyambo dza English na Afrikaans na uri ulu luambo lu shumiswevho kha thandululo ya thaidzo dza mafhungo a ṱhalano khothe dza muvhuso. This thesis compares the conflict resolution in divorce discourse between traditional and government courts. It argues that since the Constitution of the Republic of South Africa Act no 108 of 1996 has given everyone the right to use the language of his or her choice, all official languages must be used equitably in conflict resolutions in divorce discourse in both traditional and government courts. Most of the Vhavenḓa, especially the elderly, cannot speak more than one official language and this is relevant in conflict resolution. This thesis contends that conflict resolution in divorce discourse is mainly dominated by English and Afrikaans while Tshivenḓa as well as sign language is not used. Instead of enjoying the freedom of utilizing Tshivenḓa as a spoken official language as used by the court interpreter. Therefore, this thesis argues that time has come that government courts accord equal status to all official languages and that Tshivenḓa language should be utilized as English and Afrikaans in conflict resolution in divorce discourse. African languages D. Litt. et Phil. (African Languages)

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Livres sur le sujet "Customary law courts – Tanzania"

Narebor, Dorubo. Customary courts: Their relevance today. Jodah Nigeria, 1993.

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Anyafulude, Tom. Customary courts' law and rules as appplicable in Enugu State: Customary Courts Edict, no. 6 of 1984 : Customary Courts Rules 1987. Tom Anyafulude, 2004.

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Hamid, Nasser, and Singh Ram. Sabah native customary rights. Gavel Publications, 2012.

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Woodman, Gordon R. Customary land law in the Ghanaian courts. Ghana Universities Press, 1996.

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Zimanov, S. Z. Kazakh biy court is the unique judicial system. Atamura, 2008.

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Phelan, Peter R. The traditional legal system of Sabah. Centre for Borneo Studies, Yayasan Sabah, 2003.

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(Malaysia), Sabah. Native court and customary law of Sabah: With cases and decisions. Dicetak di Jabatan Cetak Kerajaan, 1993.

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Ahmad Idid bin Syed Abdullah Idid. Native court and customary law of Sabah: With cases and decisions. 2nd ed. LexisNexis Malaysia Sdn. Bhd., 2015.

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Niekerk, Gardiol Van. Traditional African courts. SJRP & LEAP Institute of Criminology, University of Cape Town, 1993.

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(Nigeria), Enugu State. Customary courts law, CAP 32, laws of Enugu State, 2004 (as amended in 2011) & customary courts rules 2011. s.n., 2011.

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Chapitres de livres sur le sujet "Customary law courts – Tanzania"

Haljan, David. "Customary International Law and Judicial Power." In Separating Powers: International Law before National Courts. T. M. C. Asser Press, 2012. http://dx.doi.org/10.1007/978-90-6704-858-3_4.

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Ermakova, Elena P., Elena Inshakova, Evgenia E. Frolova, and Agnessa O. Inshakova. "The Nature of Customary (Traditional) Law and Customary Courts in ECOWAS Countries." In Supporting Inclusive Growth and Sustainable Development in Africa - Volume I. Springer International Publishing, 2020. http://dx.doi.org/10.1007/978-3-030-41979-0_11.

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Brugnatelli, Stefano. "Human Rights Judicial and Semi-Judicial Bodies and Customary International Law on State Responsibility." In International Courts and the Development of International Law. T. M. C. Asser Press, 2013. http://dx.doi.org/10.1007/978-90-6704-894-1_35.

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Muhdar, Muhammad Zulkifli, La Ode Husen, and Zainuddin. "The Constitutionality of Customary Courts Dispute Resolution in Indigenous Communities from Tana Toraja Regency." In Proceedings of the 3rd International Conference on Business Law and Local Wisdom in Tourism (ICBLT 2022). Atlantis Press SARL, 2023. http://dx.doi.org/10.2991/978-2-494069-93-0_94.

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Kuijper, Pieter-Jan. "From Dyestuffs to Kosovo Wine: from Avoidance to Acceptance by the European Community Courts of Customary International Law as Limit to Community Action." In On the Foundations and Sources of International Law. T.M.C. Asser Press, 2003. http://dx.doi.org/10.1007/978-90-6704-615-2_5.

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Sait, M. Siraj, and M. Adil Sait. "The paradox of Islamic land governance and gender equality." In Land governance and gender: the tenure-gender nexus in land management and land policy. CABI, 2021. http://dx.doi.org/10.1079/9781789247664.0013.

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Abstract The curious case of Islamic land perspectives in the context of African countries highlights the prospects and tensions in acknowledging distinctive Islamic land occurrences as part of the Islamic land governance or more broadly hybrid land governance regimes. Muslim customary land norms recall its history and context to produce land systems that appear more effective on the ground. These sociohistorical patterns mapping faithbased tenure contribute to additional types of land and property rights regimes that potentially increase access to land for women and marginalized groups. Examples from Kenya and Tanzania to Nigeria, Senegal and Somalia highlight that Islamic land perspectives cannot be seen as either homogeneous or existing in a vacuum. Shaped in various forms by customary practices, classical Islamic law, as well as colonial-era policies, Islamic land perspectives highlight the need for appropriate land governance. The paradox of 'Islamic' land governance is that while Islamic law has often been invisible and sometimes dismissed, it is an additional useful lens in rethinking the role of faith in land governance. The compelling and volatile relationship between Islamic land practices and governance query whether Islamic tenures need religious informed land governance to be effective.

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Palchetti, Paolo. "Right of Access to (Italian) Courts über alles? Legal Implications Beyond Germany’s Jurisdictional Immunity." In Remedies against Immunity? Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_2.

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AbstractThe main consequence of Sentenza 238/2014 is that Germany has been denied jurisdictional immunities before Italian courts. However, the inflexible conception of the right of access to courts adopted by the Corte Costituzionale gives rise to a number of questions that go well beyond the issue at stake in Judgment 238/2014. First, there is the issue of whether the right of access to justice should also prevail over the international customary rule on immunity from execution. Secondly, one may ask whether the need to protect the right provided by Article 24 of the Italian Constitution could trump the criteria established by Italian law for exercising civil jurisdiction in order to allow access to justice in respect to all international crimes, even those committed outside Italian territory and involving individuals having no link to Italy. Finally, there is the question of whether a sacrifice of the right of access to justice would be justified if alternative, non-judicial means of redress were available to the victims; in particular, whether an alternative means of redress should in any case ensure to each and every individual victim full compensation or whether instead, in light of the specific circumstances of the case—the fact that the crimes occurred in the course of an international armed conflict affecting hundreds of thousands of victims—such alternative means could provide only symbolic compensation based on a lump sum settlement. This chapter aims at exploring these and possibly other issues arising in connection to the broad interpretation of the principle of access to justice given by the Corte Costituzionale.

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Zimmermann, Andreas. "Would the World Be a Better Place If One Were to Adopt a European Approach to State Immunity? Or, ‘Soll am Europäischen Wesen die Staatenimmunität Genesen’?" In Remedies against Immunity? Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_12.

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AbstractThis chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.

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Kadelbach, Stefan. "State Immunity, Individual Compensation for Victims of Human Rights Crimes, and Future Prospects." In Remedies against Immunity? Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_7.

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AbstractThis chapter first recapitulates the state of affairs as to the principle of state immunity and why exceptions from jurisdictional immunity for gross violations of human rights and humanitarian law are not recognized. It explores customary law and the global compensation treaty between Germany and Italy. Both indicate that Italy would be obligated to indemnify Germany from individual claims raised before Italian courts.In a second step, the development towards individual rights in public international law will be taken up. It appears that human beings are increasingly recognized as holders of individual claims but, apart from human rights treaty systems, lack the capacity under international law to invoke their rights before courts. Instead, they depend on their home states, which have standing but are not entitled to waive the individual rights of their citizens.In order to reconcile the seemingly antagonistic regimes of state immunity and claim settlement, prospects for a friendly solution of the present dilemma will be assessed. Against the background of cases pending before Italian courts, it will be examined whether the distinction between jurisdictional immunity and immunity from execution opens up a way out of the impasse, which the two states and private capital could pursue, and whether this solution would create a precedent for other similar constellations.Lastly, some concluding remarks will address lessons to be learnt for future conflicts. They will deal with elements of a general regime of compensation, drawing from the experience of both past reparation schemes and the experience of reconciliation in post-totalitarian societies. Such elements could be a duty to seek bona fide settlements, possible consequences of violations for domestic court proceedings, methods of assessing damages inspired by mass claim processing, the categorization of claims according to the gravity of violations, rules on evaluating evidence, procedures to give victims a say, and appropriate forms of monetary and non-pecuniary compensation including the necessary institutional framework.

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Viljoen, Frans. "INTRODUCTORY NOTE." In The Global Community Yearbook of International Law and Jurisprudence 2019. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197513552.003.0030.

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The African Court on Human and Peoples’ Rights is the newest of the three regional human rights courts. This brief analysis provides an overview of the most salient aspects of the Court’s 2018 case-law with respect to jurisdiction, provisional measures, admissibility, merits decisions, and reparations orders. Continuing its trajectory of increasing productivity, the Court in 2018 handed down the highest number of merits decisions in its brief history. As in previous years, most of these were fair-trial-related cases against Tanzania. The Court’s 2018 case-law contains a number of firsts. In Gombert v. Côte d’Ivoire, the Court for the first time ruled as inadmissible a case previously settled by an African subregional court, the Court of Justice of the Economic Community of West African States. In Anudo v. Tanzania, dealing with the right to nationality, the Court for the first time found a violation of the Universal Declaration of Human Rights, on the basis that the Declaration has attained the status of customary international law. In Makungu v. Tanzania, it for the first time ordered the applicant’s release as an appropriate remedy for serious fair trial violations. The Court’s most significant decision of 2018 is the Mali Marriage case, in which it held aspects of the 2011 Malian Family Code to be in violation not only of human rights treaties emanating from the African Union, but also the UN Convention on the Elimination of all forms of Discrimination Against Women.

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Actes de conférences sur le sujet "Customary law courts – Tanzania"

Dallazem, Dalton Luiz. "What Rules, if not Customary International Law – Articles 31-32 of the VCLT – Are the U.S. Courts Relying upon while Applying and Interpreting Tax Treaty Provisions?" In Proceedings of the 10th International RAIS Conference on Social Sciences and Humanities (RAIS 2018). Atlantis Press, 2018. http://dx.doi.org/10.2991/rais-18.2018.20.

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Габазов, Тимур Султанович. "ADOPTION: CONCEPT, RELIGIOUS AND HISTORICAL AND LEGAL ASPECTS." In Социально-экономические и гуманитарные науки: сборник избранных статей по материалам Международной научной конференции (Санкт-Петербург, Апрель 2021). Crossref, 2021. http://dx.doi.org/10.37539/seh296.2021.54.40.012.

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В статье раскрываются устоявшиеся понятия усыновления и их историческое видоизменение с учетом положений Древнего Рима. Приводятся статистические данные работы судов общей юрисдикции за 1 полугодие 2019 года по исследуемой категории дел как Российской Федерации в целом, так и одного из субъектов - Чеченской Республики. Анализируется отношение таких основных мировых религий как христианство, буддизм и ислам к вопросу усыновления, а также к способам, с помощью которых можно и нужно преодолевать данную социальную проблему. В работе делается акцент на усыновление детей, имеющих живых биологических родителей, а не только сирот, и дается анализ в изучении вопроса усыновления на примере чеченского традиционного общества до начала ХХ века и в настоящее время, а также исследуются виды усыновления. Вводится понятие «латентное усыновление» и раскрывается его сущность. Выявляются разногласия между нормами обычного права и шариата, которые существуют у чеченцев, а также раскрываются негативные стороны тайны усыновления. И в заключение статьи разрабатываются рекомендации по взаимообщению и взаимообогащению между приемными родителями и биологическими родителями усыновляемого. The article reveals the established concepts of adoption and their historical modification, taking into account the provisions of Ancient Rome. Statistical data on the work of courts of general jurisdiction for the 1st half of 2019 for the investigated category of cases of both the Russian Federation as a whole and one of the constituent entities - the Chechen Republic are presented. It analyzes the attitude of such major world religions as Christianity, Buddhism and Islam to the issue of adoption, as well as to the ways by which this social problem can and should be overcome. The work focuses on the adoption of children with living biological parents, and not just orphans, and analyzes the study of adoption on the example of a Chechen traditional society until the beginning of the twentieth century and at the present time, as well as explores the types of adoption. The concept of “latent adoption” is introduced and its essence is revealed. Disagreements are revealed between the norms of customary law and Sharia that exist among Chechens, as well as the negative aspects of the secret of adoption are revealed. And in the conclusion of the article, recommendations are developed on the intercommunication and mutual enrichment between the adoptive parents and the biological parents of the adopted.

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