under international law from a
Oliver C Ruppel
I dedicate this article to all the children under the Namibian sun and stars and in particular to my lovely children Franziska Freyja Nicolette and Sophia Emma Antoinette Mandisa
International provisions relating to the protection of children’s rights exist within various legal systems. For the purpose of this chapter, these legal systems are subdivided into three levels, namely global, regional and sub-regional. Before turning to the protection of children’s rights within these levels, however, the paper briefly introduces the application of international law in Namibia.
The focus within the protection of children’s rights on a global level will be on the legal framework of the United Nations (UN). Being a member of the UN since 1990, Namibia is party to many UN Conventions and has shown a strong commitment towards the protection of children’s rights. Although the UN legal framework offers broad protection of children’s rights, legal instruments by other global institutions also play a key role in the field of children’s rights in Namibia, and will therefore be outlined accordingly. Besides the global level, children’s rights are also laid down on the regional and subregional level. In this context, the systems to be discussed from a Namibian perspective are those of the African Union (AU) and the Southern African Development Community (SADC).
The application of international law in Namibia
There is no task more important than building a world in which all of our children can grow up to realize their full potential, in health, peace and dignity.1
International law has developed rapidly over the past few decades, especially since the dawn of the UN, when rules and norms regulating activities carried on outside the legal boundaries of nations were developed. Numerous international agreements – bilateral, regional or multilateral in nature – have been concluded and international customary rules, as evidence of a general practice accepted as law, have been established. But how 1
Children’s rights in Namibia
do these sources of international law apply domestically? In this regard, two approaches can generally be followed.2 The first, the monist approach, assumes that international laws are automatically incorporated into domestic law; the second, the dualist approach, follows the rule that international laws are not automatically incorporated into domestic law and are said to require an act of legal transformation into domestic law. In Namibia, Article 144 of its Constitution explicitly incorporates international law and makes it part of the law of the land. Thus, public international law is part of the law of Namibia: it needs no transformation or subsequent legislative act to become so.3 However, as the Constitution is the supreme law of Namibia, international law has to be in conformity with the provisions of the Constitution in order to apply domestically. Where a treaty provision or other rule of international law is inconsistent with the Namibian Constitution, the latter will prevail.4
Article 144 also mentions two sources of international law that apply in Namibia: general rules of public international law, and international agreements binding upon Namibia. General rules of public international law include rules of customary international law supported and accepted by a representatively large number of states. The notion of international agreement primarily refers to treaty in the traditional sense, i.e. international agreements concluded between states in written form and governed by international law,5 but it also includes conventions, protocols, covenants, charters, statutes, acts, declarations, concords, exchanges of notes, agreed minutes, memoranda of understanding, and agreements.6 Notably, not only agreements between states, but also those with the...