, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION 1
1. “Whatever the jurisprudential basis for the application of international law in municipal law
may be, the undeniable fact is that international law is today applied in municipal courts with
more frequency than in the past. In so doing courts seldom question the theoretical explanation
for their recourse to international law.”
1.1. With the above background, critically discuss the two approaches and the application of
international law in South Africa.
In South Africa, the application of international law in municipal law is governed by two main
approaches: dualism and monism, each influencing how international law interacts with the domestic
legal framework. Both approaches have distinct implications for the implementation of international
law in South African courts.
1. Dualism Approach
The dualist approach treats international law and domestic law as separate and distinct systems.
Under this view, international law cannot directly affect domestic law unless it is incorporated
through legislation. South Africa largely follows this dualist model, as reflected in its Constitution.
According to Section 231 of the Constitution, treaties do not automatically become part of South
African law but require approval by Parliament before they are incorporated. This means that
international law, particularly treaty law, must be transformed into domestic law for it to have legal
effect. Section 232 of the Constitution similarly places customary international law on an equal
footing with common law, provided it does not conflict with the Constitution or local legislation1 .
This transformation process ensures that international law does not override domestic legal norms
but can be invoked if the state chooses to incorporate it. For instance, the adoption of international
treaties like the International Covenant on Civil and Political Rights (ICCPR) requires national
legislative action to become applicable in South Africa's courts.
2. Monism Approach
In contrast, the monist approach holds that international law and domestic law form a unified legal
system. Under monism, international law automatically becomes part of domestic law without the
need for separate domestic legislation. This approach is prevalent in many European nations but is
less common in South Africa. While South African courts have recognized the value of international
human rights law in interpreting domestic laws, the dualist framework remains dominant.
1: (John Dugard et al., 2018, p. 87)
QUESTION 1
1. “Whatever the jurisprudential basis for the application of international law in municipal law
may be, the undeniable fact is that international law is today applied in municipal courts with
more frequency than in the past. In so doing courts seldom question the theoretical explanation
for their recourse to international law.”
1.1. With the above background, critically discuss the two approaches and the application of
international law in South Africa.
In South Africa, the application of international law in municipal law is governed by two main
approaches: dualism and monism, each influencing how international law interacts with the domestic
legal framework. Both approaches have distinct implications for the implementation of international
law in South African courts.
1. Dualism Approach
The dualist approach treats international law and domestic law as separate and distinct systems.
Under this view, international law cannot directly affect domestic law unless it is incorporated
through legislation. South Africa largely follows this dualist model, as reflected in its Constitution.
According to Section 231 of the Constitution, treaties do not automatically become part of South
African law but require approval by Parliament before they are incorporated. This means that
international law, particularly treaty law, must be transformed into domestic law for it to have legal
effect. Section 232 of the Constitution similarly places customary international law on an equal
footing with common law, provided it does not conflict with the Constitution or local legislation1 .
This transformation process ensures that international law does not override domestic legal norms
but can be invoked if the state chooses to incorporate it. For instance, the adoption of international
treaties like the International Covenant on Civil and Political Rights (ICCPR) requires national
legislative action to become applicable in South Africa's courts.
2. Monism Approach
In contrast, the monist approach holds that international law and domestic law form a unified legal
system. Under monism, international law automatically becomes part of domestic law without the
need for separate domestic legislation. This approach is prevalent in many European nations but is
less common in South Africa. While South African courts have recognized the value of international
human rights law in interpreting domestic laws, the dualist framework remains dominant.
1: (John Dugard et al., 2018, p. 87)
