Thesis Chapters by Willem van Aardt
Licenced under CC licence: Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND... more Licenced under CC licence: Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) Indexed in HeinOnline Law Journal Library Indexed in Directory of Open Access Journals vii FOREWORD In front of you is the fourth volume of RLR collection of papers, this time with a record number of authors from eleven countries in Europe and all over the world. We are doing our best that our efforts become traditional. This is one more chance to read about legal topics from the region and beyond. This year we have a new partner, the Faculty of Law of the University of Ljubljana in Slovenia. As in the previous years, we tried to encompass most of neighbouring countries from the region. Additionally, we have extended our reach this year to include South Africa, Bangladesh, and Mexico. This expansion was in response to the eagerness of our non-European colleagues to be involved in our venture. Since the previous conference, RLR collection of papers has been indexed in DOAJ, a widely recognized platform among scientific researchers in our region. Inclusion in DOAJ demonstrates our commitment to the best practices in open access publishing. In the coming years, we hope to include the collection of papers in several other research databases. For the second year, we are partnering with HeinOnline Law Journal Library. As every year, I would like to express my gratitude to the whole organizing crew for making yet another issue of the collection of papers possible, at the highest standards of editing and publishing. Besides the authors, my gratitude goes to our reviewers, all thirty-five of them, who did exceptional work during the summer months, which is always particularly challenging time of the year to perform tasks of this kind. Starting from the next year's edition, we will try to focus thematically on several important topics in the current law and practice. Despite many challenges in further development, I hope you will remain loyal contributors and readers in the years to come, all having in mind the joint aim of further improving the quality and visibility of our work.
De Rebus, 2022
International law acknowledges and permits governments to govern and implement public policy to p... more International law acknowledges and permits governments to govern and implement public policy to protect their citizens against external and internal threats. History teaches that rule by decree during declared states of emergency are often known to correlate with decreased respect for human rights.
International law mitigates this risk by subjecting governments to several legal frameworks protective of fundamental human rights, such as international human rights law and international law’s regime for regulating emergencies. Within this legal framework, some norms, such as the prohibitions on torture, slavery, arbitrary detention, and medical experimentation without free and informed consent, are regarded as peremptory or jus cogens and are of a kind from which no limitation or derogation is permitted.Three questions immediately come to mind:
• First, what is the definition of a jus cogens norm?
• Second, how do jus cogens impact the protection of human rights?
• Third, how can we differentiate legitimate public policy from unlawful limitations that constitute a violation of international law jus cogens?
This article explains the rudiments relating to jus cogens and argues that the fiduciary criterion of legitimacy is helpful in determining the morality and legality of public policy.
Medical Research Archives vol 10 issue 2, 2022
The global fervor to develop and deliver a vaccine to protect people against COVID-19, the diseas... more The global fervor to develop and deliver a vaccine to protect people against COVID-19, the disease caused by SARS-CoV-2, has been extraordinary. COVID-19 vaccine development has been pursued at an unprecedented speed and scale; following the Emergency Use Authorization (EUA) of COVID-19 vaccines, rapid mass vaccination deployment efforts commenced in all earnest. This fervor to get a needle into every arm has now led to the European Commission president calling on the EU's 27 member states to consider mandatory vaccination across Europe. With an intensification in COVID-19 vaccine hesitancy and many refusing to be vaccinated, an important question that arises is whether obligatory COVID-19 vaccination policies are ethical and legal in terms of international human rights norms and standards. Article 4(2) of the International Covenant on Civil and Political Rights which was ratified by 193 States Parties worldwide enumerates a specific list of human rights from which no derogation is allowed even in times of a public emergency. Included in this list of non-derogable rights is a sub-category of internationally recognized human rights known as "physical integrity rights" that includes the right to be free from medical or scientific experimentation. International human rights law is unambiguous that all people should be afforded their non-derogable fundamental human right to free and informed consent. Normative ethical perspectives and legal obligations erga omnes dictate that States Parties should not make COVID-19 vaccination mandatory in breach of International Human Rights Law relating to non-derogable rights that are regarded as core human rights, jus cogens. A bioethics perspective, rooted in fundamental human rights, should play a crucial role in the COVID-19 pandemic.
DE REBUS, 2021
There has been a great deal of talk about subjecting people who are not vaccinated to restriction... more There has been a great deal of talk about subjecting people who are not vaccinated to restrictions involving their access to public places, flights, hotels, and continued employment, thereby indirectly making vaccination compulsory. Disciplinary procedures have even been launched against professionals who had expressed publicly their opposition to compulsory vaccination. Viral vaccine misinformation, distrust in government institutions and a politicized vaccine development process have numerous people skeptical of COVID-19 vaccines. According to the Journal of the American Medical Association, 56% of Americans want to get the Covid-19 vaccine while 40% of Americans say they will definitely not or probably not get the COVID-19 vaccine when it becomes available to them. In the COVID-19 era more than ever vaccination evokes strong opinions and emotions. Most are grateful and relieved to get COVID-19 vaccines. Others are indignant and exasperated at the prospect of COVID-19 vaccination mandates. An important question arising from this is whether individuals can be compelled by government to be vaccinated against their will in terms of International Human Rights Law? International Human Rights Law affords the individual a right to make informed choices about vaccination and all medical interventions. The underlying principle is that those who undergo the risk of medical treatment should make the final decision about their own participation after they are informed of the purpose, risks, and benefits of the treatment.
Journal of Biology and Todays World, 2021
SARS-CoV-2 infects children far less frequently than adults and when infected, children experienc... more SARS-CoV-2 infects children far less frequently than adults and when infected, children experience no or benign symptoms. Children further do not transmit the virus in any meaningful way. Despite these facts, many public health authorities recommend that all children above the age of 12 get vaccinated to mitigate the spread of SARS-CoV-2. As a result, many schools, colleges, and universities require proof of vaccination for students to attend class, essentially coercing students to get the COVID-19 vaccine. The rationale presented by public health officials for recommending COVID-19 vaccination for children is threefold: a) To keep children from contracting COVID-19 and becoming seriously ill. b) To stop children from transmitting SARS-COV-2 to each other, teachers, parents and grandparents. c) It is needed to reach herd immunity. Consequently, this research investigates whether these hypotheses are correct and supported by the science and empirical data. If the principal points of departure are flawed, it follows that a policy to vaccinate children against COVID-19 would be irrational. The four main biomedical ethical principles, that is beneficence, non-maleficence, autonomy, and justice, are defined and explained to provide a universal, moral analytical framework that are that can aid public health policymakers in making morally and ethically sound decisions. The four main ethical principles are then applied to the policy and practice to coerce young people to get the COVID-19 vaccine.
Journal of Vaccines and Vaccination , 2021
The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Childr... more The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Children are at extremely low risk of severe illness from COVID-19, and children do not spread the illness in any significant way. Once a vaccine becomes widely available for schoolchildren, will lawmakers leave it up to parents and guardians to choose whether to vaccinate their children or will they mandate schoolchildren to get a COVID-19 vaccine to attend school? This article assesses both arguments for and against mandatory COVID-19 vaccination for school children. The article further analyzes applicable international bioethical and human rights norms and standards with regard to informed consent as contained in the various international treaties to hold states legally accountable for their actions under international law. To determine whether states may impose vaccine mandates for school children in terms of international human rights law, a proportionality test is applied. The critical focus of this article is explicating the rudiments of the bioethical and human rights standards relating to the mandatory COVID-19 vaccination of schoolchildren that must be confronted to ensure that children, that is, humanity's most valuable asset for the future, are afforded their fundamental human rights. Ultimately, it highlights the importance that these international bioethical norms are built into decision-making by public authorities when measures to prevent the spread of infectious disease with a case fatality rate of less than 0,003% in children are instituted.
Journal of Infectious Diseases & Therapy, 2021
Even though COVID-19 has an extremely low crude mortality rate among children, drastic measures t... more Even though COVID-19 has an extremely low crude mortality rate among children, drastic measures to combat the disease significantly infringed the fundamental human rights of millions of children to education and protection. This article examines whether COVID-19-related school closures and the suspension of necessary measures of protection for special needs and vulnerable children were justifiable derogations from covenant obligations and international human rights law. The researcher assessed relevant treaty and covenant obligations of states parties and affirms what international human rights law determines regarding the justifiable limitation of human rights. The article centers on whether the regulations to combat the COVID-19 pandemic are, inter alia, legitimate, adequate, necessary and proportionate stricto sensu. It argues that the limitation of fundamental human rights must achieve benefits that are proportional to the cost of the limitation, and that the infringement will not be considered proportional if there are less restrictive but equally effective means to achieve the same purpose. Ultimately, it highlights that education and the necessary measures of protection for all children – specifically those children with special needs and children belonging to vulnerable groups – should be one of the highest priorities in any national strategy to reopen society.
De Rebus SA's Attorneys Journal , 2021
The normative standards in international human rights obligate governments to respect, protect an... more The normative standards in international human rights obligate governments to respect, protect and fulfil the human rights of all people in their territory. Following the World Health Organization declaring COVID-19 a pandemic on 11 March 2020, many state parties across the globe introduced harsh lockdown containment measures with severe wide-ranging interference with fundamental human rights on a scale unseen in living memory. Democratic and totalitarian state parties misused their emergency powers with a flagrant disregard for constitutional limits to policymaking. COVID-19-related regulations infringed the fundamental rights of billions of people around the world − the right to personal liberty, freedom of assembly and association, freedom of movement, freedom of religion, the right to work and earn a living and the right to education, to name but a few. A pertinent question arising from this scenario is whether the lockdown containment measures adopted by state parties to the International Covenant on Civil and Political Rights exceed the limits of what is strictly necessary to combat the spread of an infectious disease with a crude mortality rate of 0,14% in the USA and 0,081 in South-Africa. This article examines the notion that the limitation of fundamental human rights by the lockdown regulations of state parties is legitimate only if it is proportional. Proportionality is the mainstay of the protection of human rights in many Western democracies and the most important standard that must be met with regard to human rights restrictions. It is a substantive requirement as it defines how far governments may go in limiting fundamental human rights.
De Rebus SA Attorneys Journal, 2020
On 15 March, the South African government declared a national state of disaster in
terms of the D... more On 15 March, the South African government declared a national state of disaster in
terms of the Disaster Management Act 57 of 2002. On 23 March, President Cyril
Ramaphosa announced that South Africa would enter a nationwide lockdown. Many of the lockdown regulations, such as specified times as to when one was allowed to run or walk, where one was allowed to walk, the curfew that was in place between 8
pm and 5 am, and that retail stores were only being allowed to sell certain items
but not others, including the ban on the sale of alcohol and cigarettes seemed to
be nonsensical arbitrary rules that have had no basis or justification in law, science or epidemiology.
In chapter 2 of the South African Constitution, citizens are guaranteed certain inalienable fundamental human rights, which include –
• the right to human dignity (s 10);
• the right to freedom and security of
the person (s 12);
• freedom of assembly and the right to
protest (s 17);
• freedom of movement (s 21);
• the right to education (s 29); and
• the right of cultural, religious or linguistic communities to enjoy their culture, and practice their religion (s 31).
A pertinent question arising from this, is whether the regulations to combat the
COVID-19 pandemic and which infringe on various fundamental human rights, violate the South African Constitution or whether it is a justifiable infringement
in an open and democratic society based on dignity, equality and freedom.
De Rebus SA Attorneys Journal, 2020
A central tenet and essential element of the Christian, Jewish and Muslim religion is the ability... more A central tenet and essential element of the Christian, Jewish and Muslim religion is the ability for believers to assemble, have fellowship and meet. In the Bible (NIV), Hebrews 10:25 specifically commands Christians to ‘not [give] up meeting together’ and references to the importance of the church, fellowship and meeting together are expressed in numerous other verses in the Bible.
The South African Governments’ reaction to the COVID-19 pandemic has challenged religious communities, especially as the regulations completely prevented
any form of in-person religious meetings during the Risk Adjusted Strategy Alert
Level 5 and 4. During Alert Level 3 and 2, religious meetings were limited to in
person gatherings of up to 50 people irrespective of the size of the church. In
response, some church leaders voiced their disapproval of the restrictions,
some refused to adhere to the regulations and many religious leaders cancelled in-person services or moved to virtual platforms significantly impacting the essence of the fundamental human right to freedom of
religion and assembly.
This article discuss the rudiments of this issue in order to determine
whether or not the COVID-19 Regulations relating to religious gatherings violates national and international human rights law.
North West University Doctoral Thesis, 2005
In the 21t century the state is powerful and touches all aspects of everyday life. The state is i... more In the 21t century the state is powerful and touches all aspects of everyday life. The state is in control of a country and all under its jurisdiction. Decisions made and policies implemented by the state effect its citizens. Ultimately the government of a state is responsible and liable for the human rights protection of its citizens. The buck stops with the government. This study is premised on the assumption that in terms of international Human Rights Law and national Constitutional Law, the state is responsible for human rights abuses committed by non-state actors. The first and most basic obligation of the state is to protect its citizens from the infringement of their fundamental human rights. An overview of the history and ratio of the formation of states shows that the safety of the people is the highest law. The bond between government and citizen is one of mutual obligation. The citizen adheres to the laws of the state and pays taxes and in turn, the state must protect citizens from each other and from outside threats to the citizens' fundamental human rights. Subjection implies and requires protection and protection subjection. International law and international human rights norms and principles play an increasingly important role in the world today. States are no longer free to do as they like in the domestic sphere, but are bound by international law. In this study, specific attention is given to the various international treaties that the South African government has ratified without any reservation and the international legal duties that they impose. The scope and content of state responsibility for human rights abuses committed by non-state actors under contemporary international law are examined. A comparative overview of the state's duty to protect under the Inter-American and European Systems with specific reference to the United States of America and the United Kingdom is conducted. The right to security and to be free from violence is indispensable for the exercise of all other human rights. Section 12 1 (c) of the South African Constitution expressly guarantees the right to be free from violence from both public and private sources. All other relevant constitutional imperatives and recent constitutional case law clearly indicate that there is a positive legal duty on the South African government to take reasonable measures to prevent human rights violations from occurring. Despite the constitutional guarantee, the most vulnerable in South Africa continue to suffer gross violations of their right to security on a scale unseen in other liberal constitutional democracies. In conclusion, a number of recommendations are proposed as framework to improve the current de facto situation and to contribute to the establishment of a governmental value system that actually protects human rights.
Papers by Willem van Aardt
Collection Regional Law Review, Sep 30, 2023
Journal of Vaccines and Vaccination, 2021
The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Childr... more The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Children are at extremely low risk of severe illness from COVID-19, and children do not spread the illness in any significant way. Once a vaccine becomes widely available for schoolchildren, will lawmakers leave it up to parents and guardians to choose whether to vaccinate their children or will they mandate schoolchildren to get a COVID-19 vaccine to attend school? This article assesses both arguments for and against mandatory COVID-19 vaccination for school children. The article further analyzes applicable international bioethical and human rights norms and standards with regard to informed consent as contained in the various international treaties to hold states legally accountable for their actions under international law. To determine whether states may impose vaccine mandates for school children in terms of international human rights law, a proportionality test is applied. The critical focus of this article is explicating the rudiments of the bioethical and human rights standards relating to the mandatory COVID-19 vaccination of schoolchildren that must be confronted to ensure that children, that is, humanity's most valuable asset for the future, are afforded their fundamental human rights. Ultimately, it highlights the importance that these international bioethical norms are built into decision-making by public authorities when measures to prevent the spread of infectious disease with a case fatality rate of less than 0,003% in children are instituted.
Journal of Biology and Today`s World, 2021
SARS-CoV-2 infects children far less frequently than adults and when infected, children experienc... more SARS-CoV-2 infects children far less frequently than adults and when infected, children experience no or benign symptoms. Children further do not transmit the virus in any meaningful way. Despite these facts, many public health authorities recommend that all children above the age of 12 get vaccinated to mitigate the spread of SARS-CoV-2. As a result, many schools, colleges, and universities require proof of vaccination for students to attend class, essentially coercing students to get the COVID-19 vaccine. The rationale presented by public health officials for recommending COVID-19 vaccination for children is threefold: a) To keep children from contracting COVID-19 and becoming seriously ill b) To stop children from transmitting SARS-COV-2 to each other, teachers, parents and grandparents c) It is needed to reach herd immunity. Consequently, this research investigates whether these hypotheses are correct and supported by the science and empirical data. If the principal points of departure are flawed, it follows that a policy to vaccinate children against COVID-19 would be irrational. The four main biomedical ethical principles, that is beneficence, non-maleficence, autonomy, and justice, are defined and explained to provide a universal, moral analytical framework that can aid public health policymakers in making morally and ethically sound decisions. The four main ethical principles are then applied to the policy and practice to coerce young people to get the COVID-19 vaccine.
Zenodo (CERN European Organization for Nuclear Research), Jun 23, 2021
The global fervor to develop and deliver a vaccine to protect people against COVID-19, the diseas... more The global fervor to develop and deliver a vaccine to protect people against COVID-19, the disease caused by SARS-CoV-2, has been extraordinary. COVID-19 vaccine development has been pursued at an unprecedented speed and scale; following the Emergency Use Authorization (EUA) of a number of COVID-19 vaccines, rapid mass vaccination deployment efforts commenced in all earnest. This fervor to get a needle into every arm as soon as possible has now led to discussions about making a COVID-19 vaccine compulsory and implementing vaccine passports. Many are calling for mandatory COVID-19 vaccinations of all adults and children to be implemented by both state and non-state actors, such as schools, colleges, private employers, airlines, cruise ships, sport stadiums, concert venues, shopping malls and others. With an increase in COVID-19 vaccine hesitancy, an important question that arises is whether obligatory COVID-19 vaccination policies are ethical and legal in terms of international human rights norms and standards. The many ethical issues that arise call for putting aside differences and collectively reflecting on ethically acceptable solutions. A bioethics and ethics of science and technology perspective, rooted in human rights, should play a key role in the context of this challenging pandemic. In terms of prevailing public international law and the law of nations it is unlawful for any government to make COVID-19 vaccines mandatory or to allow non-state actors to make COVID-19 vaccines mandatory and to derogate the non-derogable fundamental human right to freedom from medical or scientific experimentation without free consent.
Thesis (LL.D. (Public Law))--North-West University, Potchefstroom Campus, 2005.In the 21t century... more Thesis (LL.D. (Public Law))--North-West University, Potchefstroom Campus, 2005.In the 21t century the state is powerful and touches all aspects of everyday life. The state is in control of a country and all under its jurisdiction. Decisions made and policies implemented by the state effect its citizens. Ultimately the government of a state is responsible and liable for the human rights protection of its citizens. The buck stops with the government. This study is premised on the assumption that in terms of international Human Rights Law and national Constitutional Law, the state is responsible for human rights abuses committed by non-state actors. The first and most basic obligation of the state is to protect its citizens from the infringement of their fundamental human rights. An overview of the history and ratio of the formation of states shows that the safety of the people is the highest law. The bond between government and citizen is one of mutual obligation. The citizen adheres to the laws of the state and pays taxes and in turn, the state must protect citizens from each other and from outside threats to the citizens' fundamental human rights. Subjection implies and requires protection and protection subjection. International law and international human rights norms and principles play an increasingly important role in the world today. States are no longer free to do as they like in the domestic sphere, but are bound by international law. In this study, specific attention is given to the various international treaties that the South African government has ratified without any reservation and the international legal duties that they impose. The scope and content of state responsibility for human rights abuses committed by non-state actors under contemporary international law are examined. A comparative overview of the state's duty to protect under the Inter-American and European Systems with specific reference to the United States of America and the United Kingdom is conducted. The right to security and to be free from violence is indispensable for the exercise of all other human rights. Section 12 1 (c) of the South African Constitution expressly guarantees the right to be free from violence from both public and private sources. All other relevant constitutional imperatives and recent constitutional case law clearly indicate that there is a positive legal duty on the South African government to take reasonable measures to prevent human rights violations from occurring. Despite the constitutional guarantee, the most vulnerable in South Africa continue to suffer gross violations of their right to security on a scale unseen in other liberal constitutional democracies. In conclusion, a number of recommendations are proposed as framework to improve the current de facto situation and to contribute to the establishment of a governmental value system that actually protects human rights.Doctora
Zenodo (CERN European Organization for Nuclear Research), May 19, 2021
The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Childr... more The COVID-19 infection fatality rate for children under the age of 17 is less than 0,003%. Children are at extremely low risk of severe illness from COVID-19, and children do not spread the illness in any significant way. Once a vaccine becomes widely available for schoolchildren, will lawmakers leave it up to parents and guardians to choose whether to vaccinate their children or will they mandate schoolchildren to get a COVID-19 vaccine to attend school? This article assesses both arguments for and against mandatory COVID-19 vaccination for school children. The article further analyzes applicable international bioethical and human rights norms and standards with regard to informed consent as contained in the various international treaties to hold states legally accountable for their actions under international law. To determine whether states may impose vaccine mandates for school children in terms of international human rights law, a proportionality test is applied. The critical focus of this article is explicating the rudiments of the bioethical and human rights standards relating to the mandatory COVID-19 vaccination of schoolchildren that must be confronted to ensure that children, that is, humanity’s most valuable asset for the future, are afforded their fundamental human rights. Ultimately, it highlights the importance that these international bioethical norms are built into decision-making by public authorities when measures to prevent the spread of infectious disease with a case fatality rate of less than 0,003% in children are instituted.
Zenodo (CERN European Organization for Nuclear Research), Jun 21, 2021
SARS-CoV-2 infects children, far less frequently than adults and, when infected children experien... more SARS-CoV-2 infects children, far less frequently than adults and, when infected children experience no or benign symptoms. Children further do not transmit the virus in any meaningful way. Despite these facts many public health authorities recommend that all children above the age of 12 get vaccinated to mitigate the spread of SARS-CoV-2. As a result, many schools, colleges and universities require proof of vaccination for students to attend class, essentially coercing students to get the COVID -19 vaccine. The rationale presented by public health officials for recommending COVID-19 vaccination for children are threefold: <strong>a.)</strong> To keep children from contracting the COVID-19 and becoming seriously ill. <strong>b.)</strong> To stop children from transmitting SARS-COV-2 to each other, teachers, parents and grandparents. <strong>c.)</strong> It is needed to reach herd immunity. Consequently, this research investigates whether these hypotheses are correct and supported by the science and empirical data. If the principal points of departure are flawed, it follows that a policy to vaccinate children against COVID-19 would be irrational. The four main biomedical ethical principles, that is beneficence, non-maleficence, autonomy, and justice, are defined and explained in order to provide a universal, moral analytical framework that can aid public health policy makers to make morally and ethically sound decisions. The four main ethical principles are then applied to the policy and practice to coerce young people to get the COVID-19 vaccine.
Research Square (Research Square), Apr 29, 2021
Even though COVID-19 has an extremely low crude mortality rate among children, drastic measures t... more Even though COVID-19 has an extremely low crude mortality rate among children, drastic measures to combat the disease signi cantly infringed the fundamental human rights of millions of children to education and protection. This article examines whether COVID-19-related school closures and the suspension of necessary measures of protection for special needs and vulnerable children were justi able derogations from covenant obligations and international human rights law. The researcher assessed relevant treaty and covenant obligations of state parties and a rms what international human rights law determines regarding the justi able limitation of human rights. The article centers on whether the regulations to combat the COVID-19 pandemic are inter alia legitimate, adequate, necessary and proportionate stricto sensu. It argues that the limitation of fundamental human rights must achieve bene ts that are proportional to the cost of the limitation, and that the infringement will not be considered proportional if there are less restrictive but equally effective means to achieve the same purpose. Ultimately, it highlights that education and the necessary measures of protection for all children-but speci cally those children with special needs and children belonging to vulnerable groups-should be one of the highest priorities in any national strategy to reopen society.
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Thesis Chapters by Willem van Aardt
International law mitigates this risk by subjecting governments to several legal frameworks protective of fundamental human rights, such as international human rights law and international law’s regime for regulating emergencies. Within this legal framework, some norms, such as the prohibitions on torture, slavery, arbitrary detention, and medical experimentation without free and informed consent, are regarded as peremptory or jus cogens and are of a kind from which no limitation or derogation is permitted.Three questions immediately come to mind:
• First, what is the definition of a jus cogens norm?
• Second, how do jus cogens impact the protection of human rights?
• Third, how can we differentiate legitimate public policy from unlawful limitations that constitute a violation of international law jus cogens?
This article explains the rudiments relating to jus cogens and argues that the fiduciary criterion of legitimacy is helpful in determining the morality and legality of public policy.
terms of the Disaster Management Act 57 of 2002. On 23 March, President Cyril
Ramaphosa announced that South Africa would enter a nationwide lockdown. Many of the lockdown regulations, such as specified times as to when one was allowed to run or walk, where one was allowed to walk, the curfew that was in place between 8
pm and 5 am, and that retail stores were only being allowed to sell certain items
but not others, including the ban on the sale of alcohol and cigarettes seemed to
be nonsensical arbitrary rules that have had no basis or justification in law, science or epidemiology.
In chapter 2 of the South African Constitution, citizens are guaranteed certain inalienable fundamental human rights, which include –
• the right to human dignity (s 10);
• the right to freedom and security of
the person (s 12);
• freedom of assembly and the right to
protest (s 17);
• freedom of movement (s 21);
• the right to education (s 29); and
• the right of cultural, religious or linguistic communities to enjoy their culture, and practice their religion (s 31).
A pertinent question arising from this, is whether the regulations to combat the
COVID-19 pandemic and which infringe on various fundamental human rights, violate the South African Constitution or whether it is a justifiable infringement
in an open and democratic society based on dignity, equality and freedom.
The South African Governments’ reaction to the COVID-19 pandemic has challenged religious communities, especially as the regulations completely prevented
any form of in-person religious meetings during the Risk Adjusted Strategy Alert
Level 5 and 4. During Alert Level 3 and 2, religious meetings were limited to in
person gatherings of up to 50 people irrespective of the size of the church. In
response, some church leaders voiced their disapproval of the restrictions,
some refused to adhere to the regulations and many religious leaders cancelled in-person services or moved to virtual platforms significantly impacting the essence of the fundamental human right to freedom of
religion and assembly.
This article discuss the rudiments of this issue in order to determine
whether or not the COVID-19 Regulations relating to religious gatherings violates national and international human rights law.
Papers by Willem van Aardt
International law mitigates this risk by subjecting governments to several legal frameworks protective of fundamental human rights, such as international human rights law and international law’s regime for regulating emergencies. Within this legal framework, some norms, such as the prohibitions on torture, slavery, arbitrary detention, and medical experimentation without free and informed consent, are regarded as peremptory or jus cogens and are of a kind from which no limitation or derogation is permitted.Three questions immediately come to mind:
• First, what is the definition of a jus cogens norm?
• Second, how do jus cogens impact the protection of human rights?
• Third, how can we differentiate legitimate public policy from unlawful limitations that constitute a violation of international law jus cogens?
This article explains the rudiments relating to jus cogens and argues that the fiduciary criterion of legitimacy is helpful in determining the morality and legality of public policy.
terms of the Disaster Management Act 57 of 2002. On 23 March, President Cyril
Ramaphosa announced that South Africa would enter a nationwide lockdown. Many of the lockdown regulations, such as specified times as to when one was allowed to run or walk, where one was allowed to walk, the curfew that was in place between 8
pm and 5 am, and that retail stores were only being allowed to sell certain items
but not others, including the ban on the sale of alcohol and cigarettes seemed to
be nonsensical arbitrary rules that have had no basis or justification in law, science or epidemiology.
In chapter 2 of the South African Constitution, citizens are guaranteed certain inalienable fundamental human rights, which include –
• the right to human dignity (s 10);
• the right to freedom and security of
the person (s 12);
• freedom of assembly and the right to
protest (s 17);
• freedom of movement (s 21);
• the right to education (s 29); and
• the right of cultural, religious or linguistic communities to enjoy their culture, and practice their religion (s 31).
A pertinent question arising from this, is whether the regulations to combat the
COVID-19 pandemic and which infringe on various fundamental human rights, violate the South African Constitution or whether it is a justifiable infringement
in an open and democratic society based on dignity, equality and freedom.
The South African Governments’ reaction to the COVID-19 pandemic has challenged religious communities, especially as the regulations completely prevented
any form of in-person religious meetings during the Risk Adjusted Strategy Alert
Level 5 and 4. During Alert Level 3 and 2, religious meetings were limited to in
person gatherings of up to 50 people irrespective of the size of the church. In
response, some church leaders voiced their disapproval of the restrictions,
some refused to adhere to the regulations and many religious leaders cancelled in-person services or moved to virtual platforms significantly impacting the essence of the fundamental human right to freedom of
religion and assembly.
This article discuss the rudiments of this issue in order to determine
whether or not the COVID-19 Regulations relating to religious gatherings violates national and international human rights law.
I. School children are at risk of becoming sick or dying from COVID 19,
II. School children are responsible for the substantial viral transmission of SARS-COV-2,
III. Masks are inefficient at preventing both contagion and transmission, and
IV. Masks have significant adverse health effects for wearers,
are analyzed and assessed with reference to various peer-reviewed studies, randomized controlled clinical trials, and meta-analysis. Mask mandates violate bioethical norms and infringe on a child's fundamental human rights to be free from cruel, inhumane and degrading treatment and not to be subjected to medical or scientific experimentation without free consent. Restrictive measures impacting children's fundamental human rights should be the least intrusive to achieve the stated public health goals and include precautions such as transparent, robust scientific debate and review of actual efficacy. From the biomedical science and data, it is evident that children are not at risk from COVID-19 nor responsible for spreading the SARS-COV-2 virus in any meaningful way. Masks are inefficient at preventing both contagion and transmission, and masks have significant adverse health effects for wearers. Instead of relegating robust scientific debate, bioethical norms, and human rights, governments should respect their international human rights obligations and adhere to international bioethical normative standards.
https://iup.rs/books/pravni-i-drustveni-aspekti-vakcinacije-tokom-pandemije-kovida-19-legal-and-social-aspects-of-vaccination-during-the-covid-19-pandemic/