International and Municipal Law

Question 1

What is monism?

Answer 1

International and municipal law are one and the same. Therefore, domestic courts are obliged to directly apply international law, which is incorporated without any official act of adoption. This is a ‘theory of incorporation’, which has no regard for state sovereignty over the legal system.

Question 2

What is dualism?

Answer 2

International and municipal law are completely different systems. Therefore, domestic courts can only directly apply international law if it is adopted by such courts, or transformed into local law by legislation. This is a ‘theory of transformation’, which has regard for state sovereignty over the legal system.

Question 3

What is the harmonization theory?

Answer 3

A realisation that the whole body of international law cannot be directly applied by municipal courts. Hence, it can act as directive in the common law, but may be overridden by statutory rules and acts.

Question 4

Is there precedent in international law?

Answer 4

No. International law knows no rule of stare decisis.

Question 5

What are the two ways in which international law is applied in South African domestic law?

Answer 5

International law can either be directly applied and form part of our municipal law, or it can be applied indirectly and used to interpret domestic law.

Question 6

How are treaties directly applied in SA law?

Answer 6

Two questions:

1) does it bind SA in the international sphere? [s231(1-3)]
2) does it form part of domestic law? [s231(4)]

Only if the answer to both these questions is yes, can the international treaty be directly applied and enforced by domestic courts as part of domestic law.

Question 7

What does Section 231(4) of the Constitution say?

Answer 7

Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.

Question 8

What was held in AZAPO v President of RSA?

Answer 8

International conventions and treaties do not become part of the municipal law of our country, enforceable at the instance of private individuals in our courts, until and unless they are incorporated into the municipal law by legislative enactment.

Question 9

What was held in Glenister v President of RSA?

Answer 9

International law has a special place in South African law. An international agreement that has been ratified in Parliament is binding on South Africa on the international plane. It only becomes binding on South African citizens if it is incorporated into SA law by national legislation. However, because SA is bound under international law to create an independent anti-corruption unit, it is bound to follow through with such a commitment and create such a unit.

Question 10

What is a self-executing provision?

Answer 10

South African courts are reluctant to explore the meaning of this term [Quagliani]. It remains to be seen what characterises a treaty as self-determining.

Question 11

How is customary law directly applied?

Answer 11

Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament [s232]. One must look at:

1) state practice
2) opinio juris

Question 12

What was held in Trendtex v Nigeria?

Answer 12

The Bank of Nigeria could not plead sovereign immunity, because:

1) it was not a department of the state of Nigeria
2) the transaction was commercial, and not governmental, in nature

The theory of incorporation was held to be correct. The doctrine of absolute immunity has changed to one of restrictive immunity, because states frequently engage in commercial transactions. When states transact on the international plane, they are subject to the legal jurisdiction of foreign courts, and cannot claim sovereign immunity.

Question 13

How is international law indirectly applied to interpret legislation?

Answer 13

When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with binding international law over any alternative interpretation that is inconsistent with international law [s233].

Question 14

How is international law indirectly applied to interpret the Bill of Rights?

Answer 14

39. (1) When interpreting the Bill of Rights, a court, tribunal or forum—
    (a) must promote the values that underlie an open and democratic society based
    on human dignity, equality and freedom;
    (b) must consider international law; and
    (c) may consider foreign law.
40. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Lower threshold than Section 233, but can consider any source of international law, be it binding or not. International law must be considered when developing the common law [Carmichele].

Question 15

What was held in DA v Minister of IR?

Answer 15

A notice of withdrawal from a treaty does require parliamentary approval. The executive cannot unilaterally withdraw from a treaty.

Question 16

What does Article 27 of the Vienna Convention say?

Answer 16

A state cannot rely on domestic law to justify a breach of an international obligation.

Question 17

What was held in the Alabama Claims Arbitration?

Answer 17

Britain was selling warships to Southern representatives even though it had obligations to neutrality. It removed the weapons from the ship so that under the domestic law it would not qualify as a warship. They would then re-load the weapons onto the ship after the sale. The Arbitral panel held that just because the ships did not qualify as warships under the domestic law, it did not mean that it escaped its international law obligations.