Unit 3 - The relationship between National Law and International Law Flashcards
What are the three theories explaining the interplay between International Law and National Law ?
- Monist theory.
- Dualist theory.
- Harmonisation.
Discuss 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.
Discuss 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.
Discuss 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 in the South African Constitutional order.
- According to section 232, is part of South African law unless it is inconsistent with the Constitution or an Act of Parliament.
- Common law and judicial decisions are subordinate to customary International Law.
- According to section 233, when interpreting any legislation, every court must prefer a reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent’.
Is there a stricter test in South African domestic law than International Law for proving customary International Law ?
The constitutional role of the domestic courts is not to develop customary international law but to ascertain its current state and to apply it.
Minister of Justice v SALC case.
What are the three legal steps and implications as explained in the Glenister case ?
- National Executive negotiates and signs.
- Approval by resolution of parliament.
- Enacted into law by national legislation.
What is the legal effect of the national executive negotiates and signs step ?
Does not automatically bind the Republic; unless it is of a technical, administrative or executive nature.
Glenister case.
What is the legal effect approval by resolution of parliament step ?
- 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.
Glenister case.
What is the legal effect of the enacted in to law by national legislation step ?
- 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.
Glenister case.
Discuss the withdrawal from treaties.
- 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.
Democratic Alliance case.
Discuss treaties of a technical, administrative or executive nature.
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 resolutions of International Organizations.
- Resolutions are not treaties, and most are non-binding.
- If South Africa wants to make such resolutions to law, it must enact legislation to that effect.
Discuss the binding resolutions of the Security Council of the UN.
- It empowers the President to incorporate resolutions of the Security Council into municipal law by proclamation in the Government Gazette.
- And to provide for the implementation of such resolutions under the South African law.
- However, the Act is not yet in force.
