The object of this thesis is to investigate the application of international law in
municipal law, and more specifically to focus on international human rights law. A
determination of the sources of international human rights law constitutes the point of
departure. Treaties are the primary source of international human rights law, followed
by customary law. Recent authority indicates that the formation of customary human
rights law differs from that of customary international law in general. There are,
however, also international documents on human rights not falling within the scope of
the traditional sources as embodied in section 38 of the Statute of the International
Court of Justice. Non-binding sources of law, or soft law - most notably the Universal
Declaration of Human Rights - are shown to play an important role in the formation of
both treaties and custom and directly influence state practice.
Theoretical explanations expounding the application of international law in the
domestic law of states are examined, assessing their suitability for effective
implementation of international human rights instruments. Since the application of
international law in municipal law depends on, and is regulated by rules of domestic
law, the relevant rules of legal systems which may, due to historical factors or
regional proximity, impact on South Africa, are examined. State practice points to two
primary methods of dealing with international law obligations in domestic law, namely
transformation (associated with the dualist theory) or direct application (associated
with the monist theory). The specific method of incorporation adopted by a state is
often closely related to that state's constitutional system. The advantages and
disadvantages associated with each particular method are related to the intricacies of
individual legal systems. From an internationalist perspective the often misunderstood doctrine of direct application, has the advantage of making the
intended protection afforded by human rights treaties to individuals directly
enforceable by domestic courts with a minimum of state intervention.
The position of international law in South Africa is assessed against this background.
South Africa's constitutional history under British rule followed British law requiring
legislative transformation of treaty obligations, but permitting customary law to be
directly incorporated into common law. The position of international law became
constitutionally regulated in South Africa with the introduction of a constitutional
democracy. Drafting errors and practical difficulties experienced with the 1993
Constitution, were largely ironed out by the 1996 Constitution. The post-apartheid
Constitutions introduced changes and new dimensions compared to the pre-1993
position of international law, including: the consideration of international law when
interpreting the constitutionally protected human rights; the involvement of the
legislature in the treaty-making process; and provisions for both transformation and
direct application of treaties subject to the provisions of the Constitution. Customary
international law is confirmed as forming part of South African law, and courts are
obliged to interpret legislation in accordance with international law.
An analysis of court decisions after 1993 reveals the following broad trends:
(i) The impact of international law as part of South African law is still largely
overlooked.
(ii) The majority of references to international law by the courts are to international
human rights agreements and decisions by international tribunals under
section 39 of the Bill of Rights.
(iii) The distinction between international law and comparable foreign case law, as
directed by section 39, is often blurred.
(iv) No distinction is made between international hard and soft law when deciding
on human rights matters.
(v) Courts have refrained from applying international human rights obligations
which form part of South African law because they are self-executing or form
part of customary international law.
(vi) Binding international human rights obligations are only referred to for
comparative purposes.
(vii) The term "treaty" is interpreted in accordance with the definition of the Vienna
Convention on the Law of Treaties. The intention to create legally binding
obligations is therefore implicit.
It has been the policy of the post-apartheid South African government to ratify or
accede to the major international human rights agreements as swiftly as possible.
The execution of this policy has, however, met with numerous problems. As a result,
South Africa has to date not become party to the International Covenant on
Economic Social and Cultural Rights. Many treaties to which South Africa is a party
have not yet been incorporated into South African law and compulsory reports on the
Convention on the Elimination of All Forms of Racial Discrimination, the Convention
on the Elimination of Discrimination Against Women and the International Covenant
on Civil and Political Rights are overdue.
Despite the post-apartheid euphoria about the creation of a human rights culture in
South Africa and the formal commitment by government to give effect to international
human rights instruments, much remains to be done before South Africa can be
regarded as formally complying with international human rights standards. / Law / LL. D. (Law)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/743 |
| Date | 01 1900 |
| Creators | Olivier, Michèle Emily |
| Contributors | Botha, N. J., kakolwk@unisa.ac.za |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (xi, 378 p.) |
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