LCP4807 October
November Portfolio
(COMPLETE
ANSWERS) Semester
2 2025 - DUE 31
October 2025
[Document subtitle]
[School]
[Course title]
, Exam (elaborations)
LCP4807 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE
31 October 2025
Institution
University Of South Africa (Unisa)
Course
International Human Rights Law (LCP4807)
LCP4807 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 31
October 2025; 100% TRUSTED Complete, trusted solutions and explanations.
QUESTION 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. (25)
QUESTION 1.1
Introduction
The relationship between international law and municipal (domestic) law has long been a subject
of debate. The extent to which international law applies directly within a state depends on the
legal theory adopted by that state — typically monism or dualism. In South Africa, the 1996
Constitution provides a hybrid framework that draws elements from both systems, reflecting a
progressive approach toward the incorporation and application of international law.
1. Theoretical Approaches
1.1 Monism
Definition:
Monism holds that international law and municipal law form part of a single legal
system. Under this view, once a state becomes a party to an international treaty, or when a
rule of customary international law emerges, it automatically becomes part of domestic
law without the need for legislative incorporation.
Key implication:
International law can be directly invoked in domestic courts, provided it is not in conflict
with national constitutional provisions.
, 1.2 Dualism
Definition:
Dualism maintains that international law and municipal law are distinct systems
operating independently.
International law must be transformed or incorporated through domestic legislation
before it can have effect in municipal courts.
Key implication:
Treaties and customary rules have no domestic effect unless Parliament expressly enacts
them.
2. Application in South Africa
South Africa’s current framework — post-1994 — reflects a constitutional blend of both
monist and dualist elements.
2.1 The Constitutional Framework
Key provisions in the Constitution of the Republic of South Africa, 1996 include:
Section 231 – International Agreements
o (1) The negotiation and signing of international agreements is the responsibility of
the national executive.
o (2) An international agreement binds the Republic only after it has been approved
by Parliament.
o (4) However, a self-executing provision of an agreement that has been approved
by Parliament is law in the Republic, unless inconsistent with the Constitution or
an Act of Parliament.
o (5) Customary international law is law in the Republic unless inconsistent with
the Constitution or an Act of Parliament.
➤ Implication: Treaties require parliamentary approval (dualism), while customary
international law applies automatically (monism).
Section 232 – Customary International Law
o “Customary international law is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament.”
o ➤ Direct incorporation — monist approach.
Section 233 – Interpretation of Legislation
November Portfolio
(COMPLETE
ANSWERS) Semester
2 2025 - DUE 31
October 2025
[Document subtitle]
[School]
[Course title]
, Exam (elaborations)
LCP4807 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE
31 October 2025
Institution
University Of South Africa (Unisa)
Course
International Human Rights Law (LCP4807)
LCP4807 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 31
October 2025; 100% TRUSTED Complete, trusted solutions and explanations.
QUESTION 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. (25)
QUESTION 1.1
Introduction
The relationship between international law and municipal (domestic) law has long been a subject
of debate. The extent to which international law applies directly within a state depends on the
legal theory adopted by that state — typically monism or dualism. In South Africa, the 1996
Constitution provides a hybrid framework that draws elements from both systems, reflecting a
progressive approach toward the incorporation and application of international law.
1. Theoretical Approaches
1.1 Monism
Definition:
Monism holds that international law and municipal law form part of a single legal
system. Under this view, once a state becomes a party to an international treaty, or when a
rule of customary international law emerges, it automatically becomes part of domestic
law without the need for legislative incorporation.
Key implication:
International law can be directly invoked in domestic courts, provided it is not in conflict
with national constitutional provisions.
, 1.2 Dualism
Definition:
Dualism maintains that international law and municipal law are distinct systems
operating independently.
International law must be transformed or incorporated through domestic legislation
before it can have effect in municipal courts.
Key implication:
Treaties and customary rules have no domestic effect unless Parliament expressly enacts
them.
2. Application in South Africa
South Africa’s current framework — post-1994 — reflects a constitutional blend of both
monist and dualist elements.
2.1 The Constitutional Framework
Key provisions in the Constitution of the Republic of South Africa, 1996 include:
Section 231 – International Agreements
o (1) The negotiation and signing of international agreements is the responsibility of
the national executive.
o (2) An international agreement binds the Republic only after it has been approved
by Parliament.
o (4) However, a self-executing provision of an agreement that has been approved
by Parliament is law in the Republic, unless inconsistent with the Constitution or
an Act of Parliament.
o (5) Customary international law is law in the Republic unless inconsistent with
the Constitution or an Act of Parliament.
➤ Implication: Treaties require parliamentary approval (dualism), while customary
international law applies automatically (monism).
Section 232 – Customary International Law
o “Customary international law is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament.”
o ➤ Direct incorporation — monist approach.
Section 233 – Interpretation of Legislation
