NATIONAL LAW AND INTERNATIONAL LAW
Theories
Monism
- Don’t need to adopt IL to apply it.
Dualism
- IL needs to be adopted to apply.
Harmonization
- IL conflicts with NL domestically NL applies.
- IL conflicts with NL internationally IL applies.
The Constitution & CIL
Before Consti
- Consti did not make provision for IL.
- Courts applied a stricter test than IL for proving CIL
DU TOIT v KRUGER CIL rule to apply
- Universally accepted.
NDULI CIL rule to apply
- Universal recognition.
INTER-SCIENCE Correct approach
RESEARCH - Does not need universal recognition.
S v PETANE CIL rule to apply
- Widely accepted.
,Under Consti
- S232 CIL forms part of NL unless inconsistent with Consti or legi
o Compels court to:
(1) Determine existence of CIL rule.
(2) Determine whether rule is consistent with Consti or legi.
o IL trumps common law and judicial decisions.
- S233 when interpreting legi the court must prefer an interpretation
consistent with IL.
- Minister of Justice v SALC role of courts
o Ascertain and apply CIL not develop it.
Domesticating treaties
3 steps Set out in Glenister case
1. National executive negotiates and signs the treaty
- Does not automatically bind SA unless: NAR
o It is of a T / A / E nature s231(3).
2. Approval by resolution of Parliament
- Does not make it NL unless:
o It is a self-executing agreement s231(4).
- SA incurs liability if it doesn’t observe the treaty.
3. Ratification
- Treaty becomes NL
o Enjoys same status as other legi unless parliament makes it superior.
, Withdrawal from a treaty
Democratic Alliance case
- S231 executives’ powers to enter into treaties does not translate into
powers to withdraw from them
o Withdrawal = ratification.
o S231(2) withdrawal needs approval from Parliament (SoP).
Treaties of T / A / E nature
Earth Life case
- Agreements of routine nature flowing from daily activities of government
activities.
- Come into force by signature don’t need ratification
o No approval from Parliament.
- BUT s231(3) agreement must be tabled in NA and NCoP within reasonable
time.
Self-executing treaties
Quagliani case
- S231(4) Consti self-executing treaties approved by parliament do not have
to be enacted into NL to apply.
- Court did not see need to define “self-executing treaty” because the EA sets
out enforcement for the agreement
Theories
Monism
- Don’t need to adopt IL to apply it.
Dualism
- IL needs to be adopted to apply.
Harmonization
- IL conflicts with NL domestically NL applies.
- IL conflicts with NL internationally IL applies.
The Constitution & CIL
Before Consti
- Consti did not make provision for IL.
- Courts applied a stricter test than IL for proving CIL
DU TOIT v KRUGER CIL rule to apply
- Universally accepted.
NDULI CIL rule to apply
- Universal recognition.
INTER-SCIENCE Correct approach
RESEARCH - Does not need universal recognition.
S v PETANE CIL rule to apply
- Widely accepted.
,Under Consti
- S232 CIL forms part of NL unless inconsistent with Consti or legi
o Compels court to:
(1) Determine existence of CIL rule.
(2) Determine whether rule is consistent with Consti or legi.
o IL trumps common law and judicial decisions.
- S233 when interpreting legi the court must prefer an interpretation
consistent with IL.
- Minister of Justice v SALC role of courts
o Ascertain and apply CIL not develop it.
Domesticating treaties
3 steps Set out in Glenister case
1. National executive negotiates and signs the treaty
- Does not automatically bind SA unless: NAR
o It is of a T / A / E nature s231(3).
2. Approval by resolution of Parliament
- Does not make it NL unless:
o It is a self-executing agreement s231(4).
- SA incurs liability if it doesn’t observe the treaty.
3. Ratification
- Treaty becomes NL
o Enjoys same status as other legi unless parliament makes it superior.
, Withdrawal from a treaty
Democratic Alliance case
- S231 executives’ powers to enter into treaties does not translate into
powers to withdraw from them
o Withdrawal = ratification.
o S231(2) withdrawal needs approval from Parliament (SoP).
Treaties of T / A / E nature
Earth Life case
- Agreements of routine nature flowing from daily activities of government
activities.
- Come into force by signature don’t need ratification
o No approval from Parliament.
- BUT s231(3) agreement must be tabled in NA and NCoP within reasonable
time.
Self-executing treaties
Quagliani case
- S231(4) Consti self-executing treaties approved by parliament do not have
to be enacted into NL to apply.
- Court did not see need to define “self-executing treaty” because the EA sets
out enforcement for the agreement
