2.1.3 The International Norms
Under the Cape Verdean legal system, international law is law of the land.
40 As such,
international norms, independent of their conventional, customary, international
organisation related origin, can be applied as a regulatory basis with reference to
topics which they cover, and with a higher ranking than ordinary legislation (article
12(4)). Thus, arguably, in the event of the country being bound by international rules
related to personal data protection,
41 the Constitution determines, according to the
principle of respect for international law (article 11(1)) and the norms on reception of
international law in the Cape Verdean Legal System (article 12), that they be taken
into account by courts and other authorities that apply the law, as well as by
legislative and regulatory organs whenever they enact domestic acts regarding
those subjects.
42 For this reason, even if there are few international customary
norms in the data protection field, the existent treaties that include rules on privacy
or personal data protection can have a direct impact on Cape Verdean Data Protection Law if, according to article 12(2), the country, with respect of constitutional
procedure, freely consents to be bound by them, they are in force and duly published
in the official gazette of the Republic.
African Sources of the Law This is particularly important because the African
Union, the continental organisation of which Cape Verde is a member, approved
recently in the 23rd Ordinary Session of its Assembly in Malabo, the African Union
Convention on Cyber Security and Personal Data Protection
43 which contains some
non-self-executing norms, including relevant rules on security in electronic transactions, personal data protection and cyber security and combat on cyber crime. This
is not applicable internally, however, because, under paragraph two of article 12, it
has neither entered into force,
44 nor has Cape Verde consented to be bound by it
as yet.
The same can be said of a legal instrument of 16th February 2010 named
Supplementary Act on Personal Data Protection within ECOWAS (Economic Community of Western African States), sub-regional Organization of which the country
40 In general, see Pina-Delgado (2018).
41 Follow Bygrave (2010), pp. 165–200; Zhao (2014), pp. 1–13, and also with interest
Schulhofer (2016).
42 See the decision to the Request by the Attorney General to the Constitutional Court to Control the
Constitutionality of Article 9(2) of the Law on the Judicial Council, Ruling No 07/2016, of 10 May,
J. Pina Delgado (rap.), 2.4.1. and ff.
43 For a general presentation, Abdulrauf and Fombad (2016), pp. 67–97.
44 According to the ‘List of countries which have signed, ratified/acceded to the African Union
Convention on Cyber Security and Personal Data Protection, African Union, 12/11/2018’, available
at www.au.int/web/sites/default/files/treaties/29560-sl-african_union_convention_on_cyber_secu
rity_and_personal_data_protection.pdf, by December 2018, only 11 countries signed and 3 ratified
this convention.
82
J. Pina-Delgado
Under the Cape Verdean legal system, international law is law of the land.
40 As such,
international norms, independent of their conventional, customary, international
organisation related origin, can be applied as a regulatory basis with reference to
topics which they cover, and with a higher ranking than ordinary legislation (article
12(4)). Thus, arguably, in the event of the country being bound by international rules
related to personal data protection,
41 the Constitution determines, according to the
principle of respect for international law (article 11(1)) and the norms on reception of
international law in the Cape Verdean Legal System (article 12), that they be taken
into account by courts and other authorities that apply the law, as well as by
legislative and regulatory organs whenever they enact domestic acts regarding
those subjects.
42 For this reason, even if there are few international customary
norms in the data protection field, the existent treaties that include rules on privacy
or personal data protection can have a direct impact on Cape Verdean Data Protection Law if, according to article 12(2), the country, with respect of constitutional
procedure, freely consents to be bound by them, they are in force and duly published
in the official gazette of the Republic.
African Sources of the Law This is particularly important because the African
Union, the continental organisation of which Cape Verde is a member, approved
recently in the 23rd Ordinary Session of its Assembly in Malabo, the African Union
Convention on Cyber Security and Personal Data Protection
43 which contains some
non-self-executing norms, including relevant rules on security in electronic transactions, personal data protection and cyber security and combat on cyber crime. This
is not applicable internally, however, because, under paragraph two of article 12, it
has neither entered into force,
44 nor has Cape Verde consented to be bound by it
as yet.
The same can be said of a legal instrument of 16th February 2010 named
Supplementary Act on Personal Data Protection within ECOWAS (Economic Community of Western African States), sub-regional Organization of which the country
40 In general, see Pina-Delgado (2018).
41 Follow Bygrave (2010), pp. 165–200; Zhao (2014), pp. 1–13, and also with interest
Schulhofer (2016).
42 See the decision to the Request by the Attorney General to the Constitutional Court to Control the
Constitutionality of Article 9(2) of the Law on the Judicial Council, Ruling No 07/2016, of 10 May,
J. Pina Delgado (rap.), 2.4.1. and ff.
43 For a general presentation, Abdulrauf and Fombad (2016), pp. 67–97.
44 According to the ‘List of countries which have signed, ratified/acceded to the African Union
Convention on Cyber Security and Personal Data Protection, African Union, 12/11/2018’, available
at www.au.int/web/sites/default/files/treaties/29560-sl-african_union_convention_on_cyber_secu
rity_and_personal_data_protection.pdf, by December 2018, only 11 countries signed and 3 ratified
this convention.
82
J. Pina-Delgado