In my opinion it would have said so if that was the case. I find myself unable to agree with this interpretation of section 26. The course should not be missed by anyone undertaking a thorough examination of the concept. Finally, Judge Oda regrets that the Court has been needlessly precipitate in giving its views on collective self-defence in its first Judgment to broach that subject. But even if the only practical date for a hearing was during the October 2000 session, the appellant's attorney could only be held responsible for a 6 months delay and not a year. Thereafter first respondent moved to Bonn, Germany, where she taught English to development workers and German to Turkish immigrants. Article 18 is part of Chapter 3 of the Constitution which deals with Fundamental human rights and freedoms. 36-45. Furthermore a legal practitioner should also as soon as he or she realises that a breach of the Rules has occurred, prepare and file an application for condonation. In order to make an objective value judgment, an enquiry of some sort is required, which must at least comply with the mandatory provisions of the Supreme Court Act and the High Court Act as well as with the elementary requirements for a judicial tribunal in deciding issues of fact and law in any proceeding" (at 286j - 287d)."26. 2. The regions referred to in paragraphs1 and 3 shall be determined in accordance with the procedure referred to in Article49(3). The European Data Protection Supervisor shall ensure that an audit of the Management Authority's personal data processing activities is carried out in accordance with relevant international auditing standards at least every four years. However what was set out in par. The liability of the Commission in respect of such damage is governed by the second paragraph of Article288 of the Treaty. No wonder that Levy, A.J., who considered respondents review application, assumed that the first applicant, the respondent herein, was at the time of her second application for a permanent residence permit, employed as the Deputy-Director of CASS and was so employed at all relevant times up to the date of that judgment. the Supreme Court decision referred to, supra, at p. 680 G - J. 4. the fact of applicants lesbian relationship. While not as fully informed on the question as it would wish to be, the Court considers as established the fact that certain trans-border military incursions are imputable to the Government of Nicaragua. The note is annexed to the affidavit. The data to be processed by the VIS should be determined on the basis of the data provided by the common form for visa applications as introduced by Council Decision 2002/354/EC of 25April 2002 on the adaptation of PartIII of, and the creation of an Annex16 to, the Common Consular Instructions(4), and the information on the visa sticker provided for in Council Regulation (EC) No1683/95 of 29May 1995 laying down a uniform format for visas(5). 4(3) and 14 of the Namibian Constitution. The Court has not treated as evidence any part of the testimony which was a mere expression of opinion as to the probability or otherwise of the existence of a fact not directly known to the witness. Consequently, it is equipped to determine these problems. The Commission shall be assisted by the committee set up by Article51(1) of Regulation (EC) No1987/2006 of the European Parliament and of the Council of 20December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II)(25). Had the first respondent then claimed that they relied on the fundamental right to equality, non-discrimination, family, dignity and privacy, the Board may have given these matters more attention and at least take a stand on these issues. This would be analogous to the right of self-defence in the case of armed attack, but the act giving rise to the reaction would be less grave, not amounting to armed attack. 3. The South African case relied on namely Patel and Another v Minister of Home Affairs and Another, 2000(2) SA 343 which allegedly followed the Zimbabwean decisions, again dealt with the case where the spouse was a south African citizen married to an alien. The Namibian Parliament has, in the letter and spirit of Art. Collective counter-measures in response to conduct not amounting to armed attack (paras. This the Board was entitled to do as shown above. Judge Ago also feels obliged to draw attention to what he views as some partially contradictory aspects of the Court's assessment of the factual and legal situation. TITLE III COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID. The Court then comments that: This is a statement of fact from someone who can speak with authority on the subject of research. 57-74). Since then, and in very general terms, there has been a tendency in the western world to reverse that process. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community. The chronological sequence of events concerning the prosecution of this appeal are the following. A major part of International humanitarian law is contained in the Geneva conventions of 1949. Separate Opinion of Judge Nagendra Singh. Sharing the same idealism but expressing it in different terms, Orakhelashvili 2006 tends to explore and refine the potentialities upheld by jus cogens in order to enhance international laws fairness and effectivity. Ensuring Respect for International Humanitarian Law Erga Omnes. It should not regulate in an arbitrary manner or manifest 'naked preferences' that serve no legitimate governmental purpose for that would be inconsistent with the rule of law and the fundamental premises of the constitutional State Accordingly, before it can be said that mere differentiation infringes s 10 it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it (see Prinsloo's case (supra) at 1024). By agreement between the parties the appeal was brought directly to this Court in terms of section 18(2)(a)(ii)(aa) of the High Court Act, Act No. The following further misdirections need be mentioned: (i) It is stated in the judgment: During the period of her stay in Namibia, first respondent worked as a senior researcher and later as Deputy-Director of the Centre for Applied Social Sciences (CASS). As was pointed out by the Court a quo there was no legal impediment against the granting of the permit as the appellant was satisfied that the first appellant has complied with the provisions of section 26(3)(a) - (f) and that strong support from notable persons was expressed in favour of the granting of the permit.". The visa authority shall enter the following data in the application file: status information, indicating that a visa has been requested; the authority with which the application has been lodged, including its location, and whether the application has been lodged with that authority representing another Member State; the following data to be taken from the application form: surname, surname at birth (former surname(s)); first name(s); sex; date, place and country of birth; current nationality and nationality at birth; type and number of the travel document, the authority which issued it and the date of issue and of expiry; details of the person issuing an invitation and/or liable to pay the applicant's subsistence costs during the stay, being: in the case of a natural person, the surname and first name and address of the person; in the case of a company or other organisation, the name and address of the company/other organisation, surname and first name of the contact person in that company/organisation; main destination and duration of the intended stay; intended border of first entry or transit route; current occupation and employer; for students: name of school; in the case of minors, surname and first name(s) of the applicant's father and mother; a photograph of the applicant, in accordance with Regulation (EC) No1683/95; fingerprints of the applicant, in accordance with the relevant provisions of the Common Consular Instructions. The United States is under an obligation to "respect" the Conventions and even to "ensure respect" for them, and thus not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3. Supervision by the National Supervisory Authority. (7) regulates the period or other circumstances after which re-application can be made after the Board had rejected an application for a permanent residence permit. When the application was refused, the following allegations were made in the application to the Court for the review of the Board's decision in regard to the respondents' lesbian relationship: "17. For visa holders whose fingerprints cannot be used, the search shall be carried out only with the number of the visa sticker. Indiscriminate Attacks. It considers that this opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations". It must also be construed in a way which secures for 'individuals the full measure' of its protection.21, It was also pointed out in the latter decision that background material, such as the reports of technical committees which advised the Multi-party negotiating process, could provide a context for the interpretation of the Constitution.22, In my respectful view, in Namibia, the 1982 Constitutional Principles validated by international agreement and resolutions of the Security Council will qualify as such background material as well as the deliberations of the technical committees and the elected Constitutional Assembly itself.23. But the first respondent Frank, only filed a review application in the High Court for the review of that decision on 13th February 1998, more than six (6) months after the date of the Board's decision. For the sole purpose of verifying the identity of the visa holder and/or the authenticity of the visa and/or whether the conditions for entry to, stay or residence on the territory of the Member States are fulfilled, the authorities competent for carrying out checks within the territory of the Member States as to whether the conditions for entry to, stay or residence on the territory of the Member States are fulfilled, shall have access to search with the number of the visa sticker in combination with verification of fingerprints of the visa holder, or the number of the visa sticker. Nicaragua's intervention in El Salvador in support of the Salvadoran insurgents was, Judge Schwebel held, admitted by the President of Nicaragua, affirmed by Nicaragua's leading witness in the case, and confirmed by a "cornucopia of corroboration". The records shall be protected by appropriate measures against unauthorised access and deleted after a period of one year after the retention period referred to in Article23(1) has expired, if they are not required for monitoring procedures which have already begun. He maintains that the multilateral treaty reservation, appended to the United States 1946 Declaration of Acceptance of the Jurisdiction of the Court according to Article 36, paragraph 2, of the Statute, cannot be applied to the present case, since none of the decisions taken in the operative part can in any way "affect" third States, and in particular El Salvador. * Plus 40K+ news sources, 83B+ Public Records, 700M+ company profiles and documents, and an extensive list of exclusives across all 24 of the Act which prohibits the entry or residence in Namibia of non-citizens, with a view to permanent residence unless such person is in possession of a permanent residence permit. And as the writer Heinze concedes in his book - Art. If a previous application has been registered, the visa authority shall link each new application file to the previous application file on that applicant. I deny the allegations contained herein and repeat that the Applicants application was rejected because the Board was of the considered opinion that Namibian citizens must be given preference in the employment market and that there was no demand to attract immigrants with the qualifications, skills and experience of the Applicant. How the fact that the appellant Board refused first respondent's application for a permit, considering that first respondent is an alien with no existing right to residence, can amount to interference with both respondents' right to "the privacy of their homes, correspondence and communications" is difficult to imagine. 18) the Court observes that it is impossible to say that a ruling on the alleged breach of the Charter by the United States would not "affect" El Salvador. She also set out in the affidavit her attempts and that of her legal representative to follow up the statement made by Mr. Taapopi. The Court a quo referred to certain articles of the Constitution, namely Articles 10, 16 and 21(1)(e), but this referred to the forming of a universal partnership and the protection of property and freedom of association. Finally, on the 7th March 2000, he was informed by first respondent's legal practitioner that she was not willing to give such consent. This was also the finding of the Court a quo. For the sake of convenience I shall refer to the parties as they appeared before us, namely as the appellant and the first and second respondents. This is the old version of the H2O platform and is now read-only. The concession was thus correctly made by counsel for respondents to the effect that not only can they not legally marry, but that first respondent cannot claim citizenship under Art. In regard to the protection of the "family", the Namibian Constitution in sub-article (3) of Article 14 of the said Constitution, provides for the protection of the family as a fundamental right in regard to which the duty to protect is laid upon Society and the State. Ackermann, J., pointed out in the South African decision that in recent years there has been a notable and significant development in the statute law of South Africa in the extent to which the Legislature had given express or implied recognition to same-sex partnerships. In Namibia as well as Zimbabwe, not only is there no such provision, but no such "legislative trend". The evidence does not however warrant a finding that the United States gave direct combat support, if that is taken to mean direct intervention by United States combat forces. International Law, The Turkish-Greek Population Exchange a International Law, the Turn to History in, International Law, Trade and Development in, Investor-State Conciliation and Mediation. 36-56), The United States declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute contained a reservation excluding from operation of the declaration. I do not believe that it is the function or right of this Court, undemocratically appointed as it is, to seek to modernise the social mores of the State or of society at large. Regulation as last amended by Regulation (EC) No1525/2007 (OJ L343, 27.12.2007, p.9). Then the European Court overturned that decision. 424 and 425, para. 2, para. The Rules of Customary International Humanitarian Law, available online. The infringement of the fundamental rights to equality and non-discrimination: In this regard respondents' counsel has again leaned heavily on decisions of South African Courts, particularly the Constitutional Court. Having regard to the circumstances characterizing this part of Central America, the Court considers that it is scarcely possible for Nicaragua's responsibility for arms traffic on its territory to be automatically assumed. If I was involved in a heterosexual relationship with a Namibian citizen we would have been able to marry and I would have been able to reside in Namibia and apply for Namibian citizenship in terms of Article 4(3)(aa) of the Constitution. In the second application of 25th March 1997, first respondent stated: "Since 1990 I have lived together in Windhoek with my life partner, Elizabeth Khaxas, and her son Ricky Khaxab. He thereupon prepared the record and the application for condonation which were then filed. 187 to 201). There was also no specific information before the Board that adversely affected the applicants application. (My emphasis added.) After indicating the evidence available, the Court finds that the only violations of Nicaraguan air space imputable to the United States on the basis of the evidence are high altitude reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing "sonic booms". A copy of the facsimile and confirmation are annexed to the affidavit. The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. It is also established in the Court's view that the support of the United States for the activities of the contrastook various forms over the years, such as logistic support the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. 3. They also do not ask for any particular law or part of such law to be declared unconstitutional. Appraising the facts first in the light of the principle of the non-use of force, the Court considers that the laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil installations and naval bases, imputable to the United States constitute infringements of this principle, unless justified by circumstances which exclude their unlawfulness. The encyclopedia constitutes a useful starting point for anyone undertaking research on the subject. 4. 13(1) of the Namibian Constitution or Art. 1. Mr. Andersen expressly disavowed any such argument. The United States was entitled to do so, through measures overt or covert. In the circumstances I do not think it justified to regard the said misrepresentation as deliberate or intentional but nevertheless it is justified to regard it as a serious blemish on the manner in which the chairman of the Board, its members and the Government Attorney on their behalf, conduct their official business. Access to data for examining the application for asylum. Regulation (EC) No45/2001 of the European Parliament and the Council of 18December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(9) applies to the activities of the Community institutions or bodies when carrying out their tasks as responsible for the operational management of the VIS. It lays down the principle of Article 22 of the Hague Regulations. 15. It is convenient to pause here to deal further with the approach and findings of the Court a quo because that approach and those findings must of necessity weigh heavily in deciding whether or not the appellant has reasonable prospects of success on appeal. "(a) The decision of the Immigration Selection Board of 29th July 1997 refusing a permanent residence permit to Erna Elizabeth Frank is reviewed and set aside. He added however that his dereliction was not intentional. The Article requires administrative bodies and officials to act fairly and reasonably. Swedens IHL Manual, in particular, identifies the principle of proportionality as set out in Article 51(5) of Additional Protocol I as a rule of customary international law. You will learn about the origins and sources of this body of law, as well as to which situations it applies. (5) of sec. This was the Sexual Offences Act of 1967. 94): all Members of the United Nations have undertaken an obligation to comply with the Court's decisions addressed to them and to always respect the validity of the Judgment. 286 to 289), After recalling certain passages in its Order of 10 May 1984, the Court concludes that it is incumbent on each Party not to direct its conduct solely by reference to what it believes to be its rights. 290 to 291). Nicaragua has not expressly invoked the provisions of international humanitarian law as such, but has complained of acts committed on its territory which would appear to be breaches thereof. Three years after the VIS is brought into operation and every four years thereafter, the Commission shall produce an overall evaluation of the VIS. The South African Constitution, both the interim Constitution of 1993 and the final Constitution of 1996 contained in the Constitution of the Republic of South Africa Act No. (b) Section 23 of the Constitution: protection from discrimination. The Court finds it clearly established that the United States intended, by its support of the contras, to coerce Nicaragua in respect of matters in which each State is permitted to decide freely, and that the intention of the contras themselves was to overthrow the present Government of Nicaragua. 126-171). This will bring the Courts as well as the Constitution into disrepute and undermine the positive role it has played in the past and must continue to play in the future in regard to the maintenance and development of democratic values and fundamental human rights. When first respondent applied for the second time for a permanent residence permit in June 1997, she was no longer an employee of CASS and not the Deputy-Director of CASS. Counsel therefore submitted that this Court should set aside paragraph (b) of the order of the Court a quo and refer the matter back to the appellant Board. Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. 1. This means, so it would appear, that Parliament is not only the directly elected representative of the people of Namibia, but also some sort of High Court of Parliament which in an exceptional case, may contradict the Supreme Court, provided of course that it acts in terms of the letter and spirit of the Namibian Constitution, including all the provisions of Chapter 3 relating to fundamental human rights. (See S v Wellington, 1991(1) SACR 144; Maia v Total Namibia (Pty) Ltd., 1992(2) SA 352, 1998 NR 303; Swanepoel v Marais and Others, 1992 NR 1; S v Gey van Pittius and Another, 1990 NR 35; Adriaans v McNamara, 1993 NR 188; Xoagub v Shipena, 1993 NR 215; S v Nakapela and Another, 1997 NR 184; Johnston v Indigo Sky Gems (Pty) Ltd., 1997 NR 239; Mutjavikua v Mutual Federal Insurance Co. Ltd., 1998 NR 57 and Meridien Financial Service Pty Ltd. V Ark Trading, 1998 NR 74.). As far as the Namibian Constitution itself is concerned, the marriages which in terms of Article 4(3) qualify a spouse of a citizen for citizenship, is clearly a marriage between a man and woman, that is a heterosexual marriage, not a homosexual marriage or relationship. What the Board was not entitled to do was to fail to apply the principles of administrative justice, in particular, the audi alterem partem rule. The personal data transmitted pursuant to this Article shall be used solely for the consultation of central visa authorities and consular cooperation. However in regard to post-independence statutes or government actions which "abolishes or abridges the fundamental rights or freedoms" conferred by Chapter 3, the position is slightly more complicated for the following reason: The first part of Art. Schwarzenberger, Georg. This was a review application where no other evidence necessitated time in the typing and preparing of a record for the Supreme Court. See Mufamadi and Others v Dorbyl Finance (Pty) Ltd., 1996(1) SA 799 (AD) at 803 G - H. The first respondent's right to be treated fairly and in accordance with a fair procedure, placed the appellant under a duty to apply the audi alteram partem rule. 3. Each Member State shall ensure that the data are processed lawfully, and in particular that only duly authorised staff have access to data processed in the VIS for the performance of their tasks in accordance with this Regulation. The fourth part is devoted to the reasons why Judge Ruda, despite having voted in 1984 against the Treaty of Friendship, Commerce and Navigation as a basis of the Court's jurisdiction, believes he is bound to vote on the substantive issues submitted to the Court on this subject. One would have thought that this statement by Mr. Simenda would have strengthened Mr. Light's argument that in terms of the Constitution it was wrong for appellant to regard the lesbian relationship as neutral. For its judgment on the merits in the case concerning military and Paramilitary Activities in and against Nicaragua brought by Nicaragua against the United States of America, the Court was composed as follows: President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni, Evensen, Judge ad hoc Colliard. Application then had to be made for the setting aside of the default judgment. No evidence was led to suggest that the customary laws of Zimbabwe are more akin to those of the Romans and Athenians than to the Germanic or Hebraic customs. At one stage Mr. Oosthuizen submitted that the respondents should have cross-appealed if they now want to rely on non-compliance by appellant with the audi alteram partem rule. (See Baxter: Administrative Law p. 535 ff and Wiechers: Administrative Law p. 208 ff. Since the objectives of this Regulation, namely the establishment of a common Visa Information System and the creation of common obligations, conditions and procedures for the exchange of visa data between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article5 of the Treaty. He did not admit that it will be honoured conflicts specify the principle of proportionality in is. Wakolele be regarded as democratic and civilized and probably tolerant to lesbians the consultation of central visa and With respect to either international or non-international armed conflicts specify the principle of Article make. 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