Interpretation of the Constitutional provisions relating to international law

Michele Olivier

doi:10.17159/1727-3781/2003/v6i2a2864

Abstract

The 1993 Constitution,1 for the first time in South African history accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African domestic law. This step was a symbolic break from the apartheid legal system, which was closely associated with the violation of international law and indicated to the international community that South Africa was willing to abide by internationally accepted rules. More important, however, for South African lawyers are the fundamental changes the constitutional regulation of international law introduced into South African law.  The 1993 Constitution dealt with the conclusion of international agreements (sections 82(1)(i) and 231(2)), the status of international law in South African law (section 231(3) and (4)) and the role of international law in interpreting the chapter on fundamental rights (section 35(1)). These provisions were substantially taken over by the 1996 Constitution. The provisions relating to the entry into international agreements and the status thereof in terms of South African law are once again dealt with under section 231. The provisions on customary international law are dealt with separately under section 232. Section 233 deals with the role of international law in the interpretation of legislation, whilst section 39, the equivalent of section 35 of the 1993 Constitution, provides for international law in interpreting the Bill of Rights.

Highlights

The 1993 Constitution, for the first time in South African history accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African domestic law. This step was a symbolic break from the apartheid legal system, which was closely associated with the violation of international law and indicated to the international community that South Africa was willing to abide by internationally accepted rules
For South African lawyers are the fundamental changes the constitutional regulation of international law introduced into South African law
The 1993 Constitution dealt with the conclusion of international agreements (sections 82(1)(i) and 231(2)), the status of international law in South African law (section 231(3) and (4)) and the role of international law in interpreting the chapter on fundamental rights (section 35(1))

Summary

INTRODUCTION

The 1993 Constitution, for the first time in South African history accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African domestic law. The 1993 Constitution dealt with the conclusion of international agreements (sections 82(1)(i) and 231(2)), the status of international law in South African law (section 231(3) and (4)) and the role of international law in interpreting the chapter on fundamental rights (section 35(1)). These provisions were substantially taken over by the 1996 Constitution. This paper will look at three leading court cases bearing on the constitutional status of international law: S v Makwanyane on the interpretation of section 35 of the 1993 Constitution pertaining to the role of international human rights law in the interpretation of the Bill of Rights. The judgments by the Cape High Court and the Constitutional Court in Harksen v President of the Republic of South Africa and Others on the interpretation of the term ‘international agreement’ as provided for by section 231 by both the 1993 and 1996 Constitutions

MAKWANYANE AND ANOTHER

CAPE HIGH COURT APPLICATION

THE CONSTITUTIONAL COURT APPLICATION

CONCLUSION