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PER: Potchefstroomse Elektroniese Regsblad

versión On-line ISSN 1727-3781

PER vol.15 no.2 Potchefstroom ago. 2012




The relevance of a contextualisation of the state-individual relationship for child victims of armed Conflict



JA Robinson

B Juris LLB LLM LLD. Professor of Law, North-West University (Potchefstroom Campus),




The relationship between the individual and the State is discussed in this contribution. The argument is put forward that both the State and the individual are legal subjects endowed with legal subjectivity. In their relationship it must be accepted that the State is not only endowed with State sovereignty, but also that it prescriptively makes use of its authority. However, theirs is a legal relationship characterised by reciprocal rights and duties so that the balance point in their relationship must as a matter of course be determined legally. As an explanatory model the theory of public subjective rights, which is of German origin, is applied. This theory can serve only as a starting point, though, as it fails to address certain fundamental questions. The viewpoints of authors of the so-called Reformed Tradition will therefore be applied to elaborate on the theory. By adopting this approach it is endeavoured to explain that the relationship between the State and the individual may not be viewed as one characterised by the abuse of State authority or excessive individual claims against the State.

Keywords: State-individual relationship, armed conflict, child victims, public subjective rights, Reformed tradition



1 Introduction

In the previous issue of PER1it was concluded that a child victim of armed conflict may have legally enforceable claims under certain circumstances in terms of article 39 of the United Nations Convention on the Rights of the Child(1989) (hereafter CRC) against a State Party to the CRC of which he is a national to act in his interest. In terms of this article a child may claim that the State will re-unite him with his family, provide education, de-mine an area et cetera. This contribution aims at providing a legal theoretical framework within which these claims may be explained and therefore serves to contextualise the legal relationship between such a child and a State. For the sake of convenience the discussion will be conducted in theoretical fashion.

From the discussion of the application of article 39 it is clear that its provisions are prone to create tension between a State Party and a child victim of armed conflict. In a South African context the Constitutional Court has expressed itself already on the issue of such tension. In S v Makwanyane2it was decided that:

The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in s 33 (of the Interim Constitution). The fact that different rights have different implications for democracy, and in the case of our Constitution, for "an open democratic society based on freedom and equality", means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question. In the process regard must be had to the provisions of s 33(1) (of the Interim Constitution) and the underlying values of the Constitution, bearing in mind that ... "the role of the Court is not to second-guess the wisdom of policy choices made by legislators".

In this contribution it will be endeavoured to provide a formula for the "weighing up of competing values, and ultimately an assessment based on proportionality" as set out by the Court.In paragraph 8, however, the conclusions will be applied to the position of child victims in terms of article 39 as discussed in the previous publication.


2 Public subjective rights

It is accepted as a point of departure that the child quaindividual and the State are involved in a legal relationship as legal subjects endowed with legal subjectivity.3For purposes hereof the relationship will be referred to as the public law relationship. Within the relationship it must be accepted as a sine qua non that the State is not only endued with State sovereignty, but also that it makes use of its authority to act prescriptively.4As an explanatory model for the public law relationship the theory of public subjective rights, which is of German origin, recognises that the relationship is multi-dimensional, and it also accepts the existence of State sovereignty as a given. However, as will be set out infra, it does not consider the State as a legal subject in the relationship. In order to substantiate the argument that this approach is fundamentally wrong, viewpoints of authors of the so-called Reformed Tradition will be applied to the German exposition.5It will be argued not only that the State is by its very nature called upon to recognise the (public, subjective) rights of the individual and to create legal channels by means of which the rights may be enforced, but also that it must provide an infrastructure that makes provision for the fundamentally secure living of the everyday lives of individuals. In this fashion it is endeavoured to nuance the legal position of the State and the individual vis-à-viseach other in order to move away from the idea of the public law relationship as one characterised by an abuse of State authority or one characterised by excessive individual claims against the State.

It will be argued that the public law relationship should not be viewed as one characterised by State authority but rather that its balance-point should be determined legally; it is indeed possible to balance the State's competence to act prescriptively with the reciprocal claims, rights and obligations of the individual. This conclusion is substantiated by the fact that the public law relationship should be characterised by the subjective legal claims of both the State and the individual to certain legal objects on the one hand, and on the other that the subjective legal claims and obligations of both the State and the individual are to be traced back to the fact that the State, being a social entity, is historically founded and juridically destined. As will be explained later herein, this viewpoint of the State activates different status aspects of the individual, which serves not only to explain the obligation of the individual to respect the sovereignty of the State, but also his competence to establish subjective rights against the State.

2.1 The notion of public subjective rights

2.1.1 Introduction

The concept at the core of this chapter is that of public subjective rights.Public subjective rights are similar to private subjective rights and can in essence be regarded as a legal subject's legally protected claims to a certain legal object.6Epping provides the following explanation for the concept:

Ein subjektives Recht is die Rechtsmacht die dem Einzelnen von der Rechtsordnung zur Wahrung seiner Interessen verliehen worden ist. Dem steht das objective Recht gegenüber, dem eine solche Rechtsmacht des Eizelnen nicht zu entnehmen ist.

A modern, authoritative exponent of the theory is Alexy. He explains that the theory in essence entails that A (a natural or juristic person) has a right to O, an object, against S (the State).7In this example A is the bearer of a right whereas S is the addressee of the right. In the public law relationship S is always the State. A and S are in their respective capacities not only in a legal relationship vis-á-viseach other but also in respect of O. In the public law relationship the object of A's right is the conduct of S.8Alexy elucidates the relationship between A, S and O by providing a practical example commonly found in Bills of Rights, namely that everyone has the right to life. Clearly O is the condition of A to be alive and as such is an object of a subjective right of A's. However, A's relation to O is only an abbreviated exposition of a complex relationship of subjective rights and competences also in relation to S in terms of which A is endowed with the subjective right to demand from S "negativ ein Recht auf Leben"9and positively that S shall protect and further his life ("sich schützend und fördernd vor dieses Leben stellt").10In terms of this exposition A therefore has not only a right against S (negatively) not to kill him, but also (positively) that S must protect his life from wrongful infringement. A distinction can therefore be drawn between individual rights to negative State conduct ("die Rechte auf negative Handlungen"), which may be termed preventative rights ("Abwehrrechte"), and rights to positive State conduct ("Leistungsrechte").11

2.1.2 Preventative rights ("Abwehrrechte")

Preventative rights may be sub-divided into three categories. The first is the right of A that S will not prevent or impede particular conduct of his, the bearer of the right. The second is the right that S will not prejudice certain qualities ("Eigenschaften") or situations ("Situationen") of A. The third is the right of A that S will not terminate particular relations of A, the bearer of the right.

A's right that S will not prevent or impede specific conduct of A's ("Nichthinderung von Handlungen")

Typical examples of conduct that may be prevented or impeded may include the prevention or impeding of A's right to movement("Fortbewegung"), expressionof opinion ("Meinungsäußerung") and confession of faith ("Kundgabe des Glaubens"). The difference between the prevention and the limitation of A's preventative rights can be explained as follows: conduct of A will be prevented when S creates conditions which make it factually impossible for A to exercise his rights. On the other hand, S will limit the right to act of A when he (S) creates conditions that might cause an impediment for A to exercise his right. Alexy explains it as follows:

Definiert man die Begriffe der Ver- und der Behinderung auf diese Weise, so verhindert eine Erhöhung der subjektiven Zugangsvoraussetzungen für einen Beruf, die A, wenn auch unter größten Mühen und Opfern, erfüllen kann, das Ergreifen dieses Berufs durch A nicht, sie behindert es aber.12

In relation to preventative rights, one must also distinguish the possibility that S can make it legally impossible for A to exercise his right. In this respect it is important to note that it is only a "Rechtsakt" that can be made legally impossible. A "Rechtsakt" is one which came into force in terms of constitutive legal prescripts ("konstitutive Rechtsnormen") and which may be exercised in terms of such legal prescripts only. For instance, it would not be possible to exercise the right to elect (members of parliament) if it was not made possible by legal prescripts allowing for and regulating elections. Due to the fact that such acts come into existence by reason of constitutive norms, they may be described as institutional acts ("institutionelle Handlungen"). Institutional acts become impossible when the constitutive norms in terms of which they exist are terminated. It will be explained infrathat when a "Rechtsakt" is made impossible the competence of A is directly affected as he is deprived of the opportunity to effect legal change/take part in legal intercourse in terms of the particular constitutive legal prescript. The right that this may not happen falls in the category of rights to negative State conduct ("Abwehrrechte") as it entails that S may not terminate constitutive norms in terms of which A's institutional acts are made impossible.

A's right that S will not terminate qualities and situations of A ("Eigenschaften und Situationen")

The second group of negative acts of S which serve as the basis for individual rights comprises individual qualities or situations which may not be terminated by S. Such include A's right to life and to be healthy.

A's right that S will not terminate certain legal relations ("Rechtligen Positionen")

The third group of rights to negative acts of the State include the right that S will not terminate certain legal relations of A. Such may include the right to property.

2.1.3 The right to positive State action ("Leistungsrechte")

Two categories of rights to positive State action may be distinguished; the right to factual and the right to normative conduct of the State respectively. The right to factual conduct of the State would, for instance, include the right to provision of an "Existenz-minimum". The right to positive normative conduct of the State on the other hand would include the right that S establishes legal norms ("staatliche Normsetzungsakte"). Alexy provides examples to explain the nature of these rights, but regrettably refrains from furnishing reasons for the activation of this right of A. It will be argued in paragraph 6.2 infrathat this right of A relates to the juridical destination of the State.


3 Competence/Capacity ("Kompetenz")

It is trite that legal subjectivity concerns the legal ability to participate in legal intercourse as a legal subject. In this way the term corresponds with the Afrikaans concept "kompetensie".13For purposes hereof the term competence will be used. The term competence/capacity (Afrikaans - "kompetensie"; German - "Kompetenz") refers to the ability to take part in legal intercourse. However, in German jurisprudence the concept is also seen as the ability to cause legal change. It is submitted that prima facie the ability to take part in legal intercourse and the ability to cause legal change are interchangeable concepts. The concept comprises legal capacity (the capacity to hold offices as a legal subject and to have the rights and obligations resulting from the holding of such offices), the capacity to act (the capacity to conclude juridically relevant acts,14 and the capacity to litigate (the capacity to act as a litigant). The extent to which it is possible for a legal subject so to participate is determined by his legal status.15 Competence qua ability does not pertain to a legal object.

3.1 Private law

In private law a legal subject's competence indicates his ability to participate in legal intercourse, for example by concluding a contract, entering into a marriage, drawing up a will, et cetera.16 The nature and extent of a person's competences depend on a variety of factors. Such include, amongst others, age, domicile and extra-marital birth. It is commonly accepted that a legal subject disposes of the following competences: legal capacity, the capacity to act, and the capacity to litigate.

3.2 Public law

In German jurisprudence the concept goes under various names such as "Macht", "Rechtsmacht", "Kompetenz", Ermächtigung", "Befugnis", "Gestaltungsrecht", or "rechtliches Können".17Alexy defines it as:

[d]aß durch bestimmte Handlungen des oder der Inhaber der Kompetenz die rechtliche Situation geändert wird.18

The concept is not further refined in the public law sphere. However, it will be endeavoured to indicate that in principle there is no reason to limit the classification to private law. It will also be accepted for the purposes hereof that participation in legal intercourse and the ability to effect legal change, as Alexy describes it, are interchangeable.

The State is a legal subject. As such it has competences accruing to it, which competences stem from its legal subjectivity. It will be argued infrathat the State's foundation in the historical aspect of rea