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11 - South Africa

Published online by Cambridge University Press:  06 January 2010

John Dugard
Affiliation:
Honorary Professor of Law, Centre for Human Rights, University of Pretoria; Professor Emeritus, University of Leiden
David Sloss
Affiliation:
Santa Clara University, School of Law
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Summary

INTRODUCTION

Any study of the role of domestic courts in the enforcement of treaties in a particular state is built on the assumption that the state in question is an active member of the international community, with courts aware of the state's international treaty obligations. Such an assumption is certainly true of present-day South Africa, but it was not always so. From 1948 to 1994, while the country pursued the policy of apartheid, South Africa was an isolated pariah state with few treaties and courts largely unconcerned about the country's international obligations. Although South Africa was a party to the Charter of the United Nations – which was not incorporated into domestic law – it refused to become a party to many multilateral treaties, particularly in the fields of African organization, human rights, and humanitarian law. Bilateral treaties were entered into, but even here difficulties were encountered. For instance, most states outside of southern Africa declined to enter into extradition agreements with South Africa or terminated existing agreements. Both the all-white executive and all-white legislature were positively hostile to the international community as it sought to persuade, and later compel, South Africa to abandon apartheid. The courts were likewise unsympathetic to arguments premised on customary international law or treaty obligations. For instance, the South African Appellate Division refused to be guided by the human rights clauses in the UN Charter in its interpretation of the reasonableness of racial discrimination.

Type
Chapter
Information
The Role of Domestic Courts in Treaty Enforcement
A Comparative Study
, pp. 448 - 475
Publisher: Cambridge University Press
Print publication year: 2009

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References

Dugard, J., The South African Judiciary and International Law in the Apartheid Era, 14 S. Afr. J. Hum. Rts.110 (1998)Google Scholar
Woolfrey, D.J.G., The Application of International Labour Norms to South African Law, 12 SAYIL135 (1986–87)Google Scholar
Botha, N., Incorporation of Treaties under the Interim Constitution: A Pattern Emerges, 20 SAYIL196 (1995)Google Scholar
Keightley, R., Public International Law and the Final Constitution, 12 S. Afr. J. Hum. Rts.405, at 408 (1996)Google Scholar
Botha, N., Treaty Making in South Africa: A Reassessment, 25 SAYIL69, at 75–78 (2000)Google Scholar
Schneeberger, J., A Labyrinth of Tautology: The Meaning of the Term “International Agreement” and Its Significance for South African Law and Treaty-Making Practice, 26 SAYIL1, at 5–7 (2001)Google Scholar
Scholtz, W., A Few Thoughts on s 231 of the South African Constitution, 26 SAYIL202 (2004)Google Scholar
Botha, N., Treaty Making in South Africa: A Reassessment, 25 SAYIL69, at 91 (2000)Google Scholar
Vyver, J. D., Universal Jurisdiction in International Criminal Law, 24 SAYIL107, at 130 (1999)Google Scholar
Ngolele, E., The Content of the Doctrine of Self-Execution and Its Limited Effect in South African Law, 31 SAYIL153 (2006)Google Scholar
Olivier, M., Exploring the Doctrine of Self-Execution as Enforcement Mechanism of International Obligations, 27 SAYIL99 (2002)Google Scholar
Baxter, R. R., International Law in Her “Infinite Variety,” 29 ICLQ549 (1980)CrossRefGoogle Scholar
Aust, A., The Theory and Practice of Informal International Instruments, 35 ICLQ787 (1986)CrossRefGoogle Scholar
Olivier, M., Informal International Agreements under the 1996 Constitution, 22 SAYIL63 (1997)Google Scholar
Schneeberger, J., A Labyrinth of Tautology: The South African Treaty Law and Treaty-Making Practice, 26 SAYIL1 (2001)Google Scholar
Dugard, J., The Role of International Law in Interpreting the Bill of Rights, 10 S. Afr. J. Hum. Rts.208 (1994)Google Scholar
Dugard, J., International Human Rights Norms in Domestic Courts: Can South Africa Learn from Britain and the United States?inKahn, Ellison (ed.), Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner221, 234–36 (1983)Google Scholar
Dugard, J., The Revocation of the Mandate for South West Africa Revisited, 1 S. Afr. J. Hum. Rts.154, 159 (1985)Google Scholar
Motala, Z., The Constitutional Court's Approach to International Law and Its Method of Interpretation in the “Amnesty Decision”: Intellectual Honesty or Political Expediency? 21 SAYIL29 (1996)Google Scholar
Botha, N., Treaties after the 1996 Constitution: More Questions Than Answers, 22 SAYIL95, 102 (1997)Google Scholar
Botha, N., The Role of International Law in the Development of South African Common Law, SAYIL253, 259 (2001)Google Scholar
Rubin, N., International Labour Law and the Law of the New South Africa, 115 SALJ685 (1998)Google Scholar
Dugard, J., The Influence of International Human Rights Law on the South African Constitution, Current Legal Probs. 305 (1996)CrossRefGoogle Scholar
Dugard, J., International Law and the South African Constitution, 8 EJIL77 (1997)CrossRefGoogle Scholar
Dugard, J., The Role of Human Rights Standards in Domestic Law: The Southern African Experience, in The Future of UN Human Rights Treaty Monitoring269 (Alston, P. & Crawford, J. eds., 2000)CrossRefGoogle Scholar
Maluwa, T., International Human Rights Norms and the South African Interim Constitution 1993, 19 SAYIL14 (1993/94)Google Scholar
Botha, N., International Law in the Constitutional Court, 20 SAYIL222 (1995)Google Scholar
Botha, N., Riding the Tide: South Africa's “Regular” Courts and the Application of International Law, 21 SAYIL174 (1996)Google Scholar
Wet, E., The Place of Public International Law in the New South African Constitutional Order: With Special Reference to International Human Rights and Humanitarian Law, 1 Recht in Afrika (published by African Law Association) 207 (1998)Google Scholar
Blake, R.C., The World's Law in One Country: The South African Constitutional Court's Use of Public International Law, 115 SALJ668 (1998)Google Scholar
Prévost, D., South Africa as an Illustration of the Development in International Human Rights Law, 24 SAYIL211 (1999)Google Scholar
Ford, J., International and Comparative Influence on the Rights Jurisprudence of South Africa's Constitutional Court, in Constitutional Democracy in South Africa 1994–2004 (Plessis, M. du & Pete, S., eds.) 33 (2004)Google Scholar
Strydom, H., South Africa and International Law – From Confrontation to Co-operation, 47 F.R.G. Y.B. Int'l L.160, 193 (2004)Google Scholar
Botha, N. and Olivier, M., Ten Years of International Law in the South African Courts: Reviewing the Past and Assessing the Future, 29 SAYIL42 (2004)Google Scholar

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  • South Africa
    • By John Dugard, Honorary Professor of Law, Centre for Human Rights, University of Pretoria; Professor Emeritus, University of Leiden
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.012
Available formats
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  • South Africa
    • By John Dugard, Honorary Professor of Law, Centre for Human Rights, University of Pretoria; Professor Emeritus, University of Leiden
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.012
Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

  • South Africa
    • By John Dugard, Honorary Professor of Law, Centre for Human Rights, University of Pretoria; Professor Emeritus, University of Leiden
  • Edited by David Sloss
  • Book: The Role of Domestic Courts in Treaty Enforcement
  • Online publication: 06 January 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511635458.012
Available formats
×