The reception of international Law in the South African legal order: an introduction
Erika de Wet[*]
1Background
1.1Constitutional provisions pertaining to international law
1.2Statutory references to international law
2The status of treaties in the domestic legal order
2.2Treaty conclusion and implementation
2.2.1The need for incorporation
2.2.2The definition and classification of treaties
2.2.3Self-executing treaties
2.3Treaty termination
3The status of customary international law in the domestic legal order
4. The role of the judiciary in the interpretation and application of international law
4.1 International (human rights) instruments guiding interpretation
4.2 Deference to the Executive
5 The status of decisions of international courts in the domestic legal order
5.1 (Waiving of) immunity from execution
5.2 The common law as a vehicle for enforcement of ‘foreign’ judgments
6 Conclusion
1 Background
The Republic of South Africa is a unitary state with a common law tradition. Its common law is a blend of Anglo-American and Roman-Dutch Law. The latter refers to the legal system that applied in Holland during the seventeenth and eighteenth centuries. It comprised a mixture of medieval Dutch law and the Roman law of Justinian as received in Holland.[1] Roman-Dutch law was transported to the Cape when the Dutch settled there in 1652. Subsequently the principles of Roman-Dutch law were strongly influenced by English law, following the British occupation of South Africa in the early nineteenth century.[2]
Although South Africa became a republic (thereby rejecting the British Queen as head of state) only in 1961, it has been self-governing since 1910. Moreover, it was recognized as a sovereign state under international law already during the 1930s, a fact formalized inter alia by theStatus of the Union Act 1934.Apartheid became the official state policy after the victory of the National Party in 1948. Between 1948 and the country’s first democratic elections in 1994, the country’s apartheid policies lead to its international isolation. During this time South Africa refused to become a party to many multilateral treaties, particularly in the field of African organization, human rights, and humanitarian law.[3]However, this position changed significantly after the first multi-racial elections on 27 April 1994 and thesubsequent enactments of the interim Constitution in 1994 and the so-called final Constitution in 1997.[4]
Under the finalConstitution, executive power is vested in a President, who is both the chief of state and head of government. Legislative authority is granted to a bicameral legislature consisting of the National Assembly, which elects the President; and the National Council of Provinces, which has special powers to protect regional interests, including the cultural and linguistic traditions of ethnic minorities. The judicial system is based on a combination of Roman-Dutch law and English common law. The Constitutional Court is the highest court for interpreting and deciding constitutional issues, while the Supreme Court of Appeal is the highest court for non-constitutional matters.
Following the 1994 elections, most sanctions imposed by the international community in opposition to the system of apartheid were lifted. South Africa rejoined the Commonwealth (which it left in 1961) on 1 June 1994 and was accepted by the UN General Assembly on 23 June 1994. South Africa also subsequently became a member of the Southern African Development Community (SADC) and served as the African Union’s (AU) first president from July 2003 to July 2004.
The subsequent sections will illuminate in more detail the relationship between international law and domestic law since the introduction of the new constitutional dispensation. The analysis will first introduce theconstitutional provisions and statutory references pertaining to international law. Thereafter it will explore the status of treaties in the domestic legal order, with references inter alia to the different categories of treaties and the extent to which they need to be incorporated by Parliament in order to have effect within the Republic. Subsequently, the chapter examines the limited role that customary international law has thus far played in the domestic order, before outlining the role of the judiciary in interpreting and applying international law.
The final section focuses on an area that has only recently gained practical relevance and remains conceptually under-developed, namely that of the status of decisions of international courts before South African courts. As subsequent chapters will give an in-depth analysis of the current status of various sub-areas of international law in the Republic, the aim of this chapter is limited to introducing the general principles governing the relationship between international and domestic law, thereby provide a contextual background for the subsequent chapters.
1.1Constitutional provisions pertaining to international law
Unlike the earlier constitutions of 1910, 1961, and 1983, the interim Constitution expressly recognized international law and the role it had to play in municipal law. The provisions in the interim Constitution that specifically dealt with international law covered the signature and ratification of international agreements and their application in domestic law,[5] the status of customary international law in South African domestic law,[6] as well as the interpretive role of international law.[7] The final Constitution of 1996 envisaged only minor changes with respect to these provisions.[8] Of particular importance are sections 231–233 of the Constitution, as well as section 39, which constitutes a part of the Bill of Rights.
Section 231 regulates the signing, ratification, and implementation of international agreements (treaties):
1) The negotiating and signing of all international agreements is the responsibility of the national executive.
2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
3) 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.
4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.
Section 232 concerns customary international law and determines that ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.’
Section 233 requires an international law friendly interpretation of legislation: ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’
Of particular importance in the practice of courts is section 39 concerning the interpretation of the constitutional Bill of Rights:
1) When interpreting the Bill of Rights, a court, tribunal or forum:
a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
b) must consider international law; and
c) may consider foreign law.
2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
Reference should also be made to section 200(2) of the Constitution, which regulates the Defence Force: ‘The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.’
These provisions marked a formal turning point in the country’s approach towards international law, especially regarding the use of international human rights law as a guideline for interpreting the Constitution. Although South Africa’s common law tradition implies that decisions of foreign courts have been influential since its inception, until 1994 this influence was largely restricted to areas of private and commercial law.[9] Before 1994 no reference was made to decisions of international monitoring bodies in the human rights field because South Africa was not party to any human rights treaties and many of its policies were directly at odds with the principles embodied in international human rights law. However, since the adoption of the interim and final Constitutions, decisions of international human rights bodies and of foreign courts pertaining to international law are frequently invoked, as will be discussed in section 4.[10]
1.2Statutory references to international law
It is also worth noting that various statutes refer expressly to international law, in accordance with section 233 of the Constitution, which requires ordinary legislation to be interpreted in accordance with international law.[11] In some instances the legislation makes clear that it is to be interpreted in accordance with international law. In other instances the statute incorporates language that resembles that contained in international instruments, including ones that are not binding on South Africa. This enhances the ability of the executive and the courts to interpret the legislation in accordance with present and future developments in relation to the relevant area of international law.[12]
An example of a statute that explicitly requires interpretation consistent with international law is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. This provides that any person interpreting the Act may be mindful of international law.[13] Similarly, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 provides that a court applying the Act must consider conventional and customary international law.[14] In addition, the Labour Relations Act 66 of 1995 states that one of the primary objects of the Act is to give effect to obligations incurred by the Republic as a member state of the International Labour Organization (ILO) and requires the Act to be interpreted in compliance with the public international law obligations of the Republic.[15]
2 The status of treaties in the domestic legal order
2.1 The definition and classification of treaties
The term ‘international agreement’ in the Constitution is synonymous with the term ‘treaty’ as defined in Article 2(1) in theVienna Convention on the Law of Treaties 1969 (Vienna Convention).[16]This meaning has developed in the practice of the Office of the Chief State Legal Adviser in the absence of a definition of ‘international agreement’ in the Constitution and despite the fact that South Africa is not a party to the Vienna Convention. The term ‘international agreement’ in section 231 is therefore to be understood as referring to written agreements between subjects of international law that embody legally enforceable rights and obligations.[17]
This view also seems to have been endorsed by the Constitutional Court in the Harksen case,[18] which concerned the attempt by Jürgen Harksen to prevent his extradition to Germany where he was charged with fraud.[19] One of the issues central to the dispute was whether ad hoc extradition under section 3(2) of the Extradition Act 1962[20] (where South Africa had not concluded an extradition agreement with the requesting state) should also comply with the constitutional prerequisites for an international agreement. The question was whether the signature (consent) of the South African President to a statement that permitted the extradition of Harksen to Germany constituted an international agreement.[21] The Constitutional Court determined that presidential consent in terms of section 3(2) of the Extradition Act was a domestic act, implying that in accordance with South African domestic law Harksen could be brought before a magistrate’s court in order to initiate the extradition proceedings.[22] It did not amount to an ‘international agreement’ in terms of section 231 of the Constitution, as it was not an instrument that intended to create international legal rights and obligations between state parties.[23]
No provision is made for oral agreements or for unilateral acts in either the Constitution or in the Manual on Executive Acts of the Office of the President of South Africa (Manual), which serves as a guide to the practice of the Office of the Chief State Legal Advisor.[24] As far as the written agreements are concerned, section 231 of the Constitution distinguishes between two types of agreements. The first requires parliamentary approval in terms of section 231(2), meaning that both houses of Parliament (the National Assembly and the National Council of Provinces) sitting separately have to give approval, before theExecutive may give its consent to bind the Republic on the international level.[25]
The second concerns technical, administrative or executive agreements that can, in accordance with section 231(3), be concluded by the national executive alone.[26] Although Parliament has to be notified about these agreements, they are exempt from the sometimes lengthy parliamentary approval procedure. The Constitution does not give any indication of which agreements would qualify as technical, administrative or executive.[27] The internal practice that has developed within the Office of the Chief State Legal Adviser is to consider as ‘technical’ those agreements that do not have major political significance; do not require additional budgetary allocation from Parliament over and above the budget provided by particular government department; and agreements that do not impact domestic law.[28] They are often of a bilateral nature and concern routine agreements for which a single government department is responsible for implementation. This encompasses the vast majority of agreements that South Africa has concluded since 1994.[29]
The procedure foreseen for ‘technical’ agreements in section 231(3) requires an average of three months. Despite being of an expedited nature, the procedure is not always fast enough to accommodate the requirements of modern-day international relations. In such circumstances the executive prefers informal agreements because of their simplicity, swiftness, flexibility, and confidentiality. However, they do not create reciprocal rights and duties under international law, even though they are almost always honoured in practice.[30] Since they are of a non-binding nature, they are also exempt from the procedures prescribed in section 231 of the Constitution.[31]
The frequent use of technical agreements and informal agreements implies that a large number of agreements are excluded from the democratic verification process. The situation is particularly acute in relation to informal agreements. Whereas Parliament is at least notified about the conclusion of technical agreements in accordance with section 231(3), no such notification occurs in relation to informal agreements.[32] Although these expedited procedures are necessary for the conduct of efficient international relations in the twenty-first century, it can be problematic from the perspective of democratic accountability that lies at the heart of section 231(2).[33] However, at the time of writing there has not yet been any case before a South African court challenging a particular classification of an agreement by the executive as ‘technical’, nor of the validity of informal agreements.
The role of Parliament in the ratification processalso has implications for reservations to treaties. In those instances where treaties are subject to the parliamentary process foreseen in section 231(2), Parliament will have the opportunity to scrutinize the reservation attached by the executive.[34] In addition, Parliament may also insist on additional reservations. The issue of reservations does not, however, seem to play a prominent role in South African treaty-making and the domestic courts have not yet been confronted with interpretation issues pertaining to reservations, such as their legality or scope.
2.2 Treaty conclusion and implementation
2.2.1The need for incorporation
In accordance with section 231(1) of the Constitution the negotiation and signature of treaties is the exclusive competence of the executive; Parliament has no role to play at this level. Moreover, the Manual indicates that the provinces may not enter into agreements governed by international law, except as agents of the national executive. The individual concerned would therefore have to require specific authorization to this effect by way of Presidential Minute together with credentials issued by the Department of International Relations and Co-operation.[35]
Section 231(2) and (3) of the Constitution exclusively regulatesthe conditions under which the Republic would be bound by international agreements on the international level. In order for treaties to apply domestically, section 231(4) prescribes that these agreements must first be enacted into domestic law by means of legislation, unless their provisions are self-executing. This approach was confirmed by the Constitutional Court in the AZAPOand Glenistercases,[36] as well as the Supreme Court of Appeal in the ProgressOfficeMachines case.[37]The Azapo case concerned the 1949 Geneva Conventions on the Laws of War, while the Glenister case pertained to various international and regional treaties combating corruption. The Progress Office Machines case for its part concerned the World Trade Organization (WTO) Agreement and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade. TheProgress Office Machinesand Azapocases will be explored in more detail in sections 2.2.2 and 3respectively. Although the issue of self-executing treaties will also be illuminated below, this concept has thus far remained a dead letter in the practice of South African courts.[38]
Four principle methods are employed to transform treaties into municipal law. The first and most simple technique of incorporation is considering the pre-existing legislation sufficient to give effect to subsequent treaty obligations. An example is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973, which South Africa ratified in 1975.[39] Second, the provisions of a treaty may be embodied in the text of an Act of Parliament. This, for example, was the case with the Implementation of the Rome Statute of the International Criminal Court Act, which implemented South Africa’s obligations under the Rome Statute of the International Criminal Court 1998, which South Africa ratified in 2000.[40] Third, the treaty may be included as a schedule to a statute. One example of such wholesale importation is the World Heritage Convention Act 49 of 1999. By way of a schedule, the Act incorporates into South African law the entire Convention concerning the Protection of the World Cultural and Natural Heritage of 1972.[41]