Theme 3 - Relationship between international law and national law Flashcards
What is the monist theory ?
Domestic courts are required to apply International Law rules directly without adopting them into law or without being transformed by the legislature.
What is the dualist theory ?
Requires International Law to be applied by domestic courts only if ‘adopted’ by such courts, or transformed into local law by legislation.
What is harmonisation ?
- In cases of conflict between International Law and national law, the judge must apply municipal law.
- International law will bind the state internationally.
Discuss customary international law.
- Section 232 states that Customary International Law is part of South African law unless it is inconsistent with the Constitution or an Act of Parliament.
- Section 233 states when interpreting any legislation, every court must prefer a reasonable interpretation that is consistent with International Law over any alternative interpretation that is inconsistent.
What requirements must be fulfilled before a rule can be elevated to a status of Customary International Law ?
- usus.
- opinio juris.
What is the correct approach to proving Customary International Law ?
In Minister of Justice v SALC the court said that the constitutional role of the domestic courts is not to develop customary international law but to ascertain its current state and to apply it.
Discuss the three legal steps and implications as explained in the Glenister case.
National executive negotiates & signs.
- Does not automatically bind the Republic; unless it is of a technical, administrative or executive nature.
Approval by resolution of parliament.
- Doesn’t make it law in South Africa, unless it is self-executing agreement.
- South Africa incurs responsibilities towards other States if it fails to observe treaty.
Enacted into law by national legislation.
- Becomes law.
- Enjoys same status as any other legislation; unless parliament explicitly elevates it to a superior status in relation to its general application or in the event of a conflict between the treaty and domestic legislation.
Discuss withdrawal from treatiies.
- In the Democratic Alliance case, held that the proper construction of section 231 of the Constitution is that the executive must first seek approval from parliament before delivering a notice of withdrawal.
- The high court found that a notice of withdrawal is the equivalent of ratification, which requires approval in terms of section 231(2) of the Constitution.
Discuss treaties of a technical, administrative or executive nature.
In terms of section 231(3), an international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
Discuss self-executing treaties.
In terms of section 231(4), 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.
Discuss the methods employed by the legislature in the transformation process.
- The provisions of a treaty may be embodied in the text of an Act of Parliament.
- The treaty may be included as a schedule to a statute.
- An enabling Act of Parliament may give the executive power to bring a treaty into effect in municipal law by means of a proclamation or government notice in the Government Gazette.
Discuss resolutions of International Organisations.
- Resolutions are not treaties, most are non-binding.
- If South Africa wants to make such resolutions to law, it must enact legislation to that effect.
