T6 International Law in SA Domestic Courts

Question 1

What are the constitutional imperatives irt to IL?

Answer 1

1. Section 39(1)
2. Section 231
3. Section 232
4. Section 233

Question 2

What is section 39(1)?

Answer 2

Constitution mandates courts to consider IL when interpreting BOR.

Question 3

What is section 231?

Answer 3

Specifies that international agreements become law in SA when enacted into domestic legislation by Parliament.

Question 4

What is section 232?

Answer 4

Customary IL recognised as part of SA law unless it conflicts with the Constitution or domestic legislation.

Question 5

What is section 233?

Answer 5

Courts are required to interpret any legislation in a manner consistent with IL obligations.

Question 6

What is the importance of section 39(1)?

Answer 6

Ensures that SA’s human rights jurisprudence aligns with international human rights norms.

Question 7

Can an Act of Parliament override customary international law?

Answer 7

Only if it does not violate the Constitution

Question 8

What is the doctrine of the extraterritorial application of the Constitution?

Answer 8

The extent to which a state’s constitution can be applied to actions and individuals outside its own territory.

Question 9

What are the principles of the doctrine of extraterritorial application of the Constitution?

Answer 9

1. Sovereignty
2. Jurisdiction
3. Effects doctrine
4. Protection of national interests
5. International treaties and agreements
6. Judicial precedents and interpretations
7. Compliance with IL.

Question 10

What is the element of sovereignty?

Answer 10

States have sovereignty over their territory and the authority to regulate within it and a state cannot impose its laws on another state’s territory without consent.

Question 11

What is the element of jurisdiction?

Answer 11

States exercise jurisdiction based on different principles including:
1. Territorial
2. Personal
3. Universal

Question 12

What is territorial jurisdiction?

Answer 12

The right to enforce laws within one’s own country.

Question 13

What is personal jurisdiction?

Answer 13

The right to apply laws over individuals based on their nationality or citizenship, even when they are outside the state.

Question 14

What is universal jurisdiction?

Answer 14

In certain cases, states may claim jurisdiction regardless of the location of the crime or the nationality of the offenders.

Question 15

What is the element of effects doctrine?

Answer 15

A State can assert jurisdiction over extraterritorial conduct if that conduct has substantial effects within its territory.

Question 16

What is the element of protection of national interests?

Answer 16

A state may extend its constitutional protections to its citizens abroad to protect their rights and interests.

Question 17

What is the element of judicial precedents and interpretations?

Answer 17

Judicial interpretations can shape how a constitution is applied extraterritorially.

Question 18

What is the element of compliance with IL?

Answer 18

States must ensure that their extraterritorial actions comply with IL including respect for human rights, non-interference in the internal affairs of other states, and adherence to international treaties.

Question 19

What are the limitations and challenges of extraterritorial application of a constitution?

Answer 19

1. Enforcement
2. Sovereignty concerns
3. Judicial reluctance