Child Rights at the Core: The Use of International Law in South African Cases on Children’s Socio-Economic Rights

Abstract

The Constitution of the Republic of South Africa, 1996, explicitly protects the socioeconomic rights of children and adults. When interpreting these provisions in the Bill of Rights, the Constitution states that international law ‘must be considered’. This refers to binding and non-binding international legal instruments such as the treaties and the General Comments made by the supervisory bodies. This article argues that the courts have an essential role to play in the realisation of international human rights law. Analysis of the judgments of the South African courts shows however that there are flaws in their use and enforcement of international and regional human rights law. Analysis of the courts tend merely to mention some of the applicable international law provisions without considering them in sufficient detail. Binding international law relevant to the rights of children is not given the same attention as non-binding international law. It is argued that the courts have not properly defined the scope and content of children’s socio-economic rights. Recommendations are made as to how the courts could strengthen their role in promoting the socioeconomic rights of children through the considered use and enforcement of international law.