Research 2002

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Faculty of Law
Department of Public Law

Selected Highlights from Research Findings

Researchers has undertaken the first comprehensive reassessment of the role of international law in South African municipal law necessitated by the fundamental constitutional change from parliamentary sovereignty to constitutional democracy, focusing specifically on South Africa's position vis-à-vis international human rights instruments. For the first time in South African history the South African Constitution of 1993 accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African law. This step introduced fundamental changes into South African law. These international law related provisions, which were substantially taken over by sections 39, 231, 232 and 233 of the 1996 Constitution, deal with the entry into international agreements, the status of treaties and customary international law in South African law and the role of international law in the interpretation of the Bill of Rights and legislation. The position of international human rights law in South African law is assessed against the background of prevailing international law theory expounding the relationship between international law and domestic law and practice adopted by other states. State practice points to two primary methods of dealing with international law obligations in domestic law, namely transformation (associated with the dualist theory) or direct application (associated with the monist theory). The specific method of incorporation adopted by a state is closely related to that state's constitutional system. An analysis of court decisions and government policy after 1993 reveal that, despite the corrective action introduced by the post-apartheid Constitutions and the fact that South Africa has become a party to the most important international human rights instruments, international human rights law appear to play a far less significant and change-inducing role in a post-apartheid legal system than visionaries had hoped for.
Contact person: Dr ME Olivier.

 

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