Authored By: Lameez Fakier
Lameez Fakier
INTRODUCTION
A sense of legal responsibility (opinio juris) and consistent state practice gives rise to customary international law (CIL), which is crucial in understanding South Africa’s Constitution. Unless it conflicts with domestic law, the 1996 Constitution recognizes CIL as law in South Africa (Section 232) and encourages judges to take international law into account when interpreting the Bill of Rights (Section 39(1)(b)).
Main Discussion
The Role of Customary International Law
In situations where domestic law may be ambiguous or changing, CIL offers a framework for interpreting constitutional rights. Because of its integration, South African courts are able to:
- Boost protections for disadvantaged groups by bringing domestic rights into compliance with international standards.
- Direct how the Constitution is interpreted in relation to social protections, criminal justice, and human rights.
- Close the gaps between the law and societal norms for ethics to guarantee that constitutional interpretation is morally and legally sound.
For instance, the Constitutional Court interpreted the right to physical integrity under Section 12 of the Constitution by citing international standards against torture in the case of Minister of Safety and Security v. Van Duivenboden.1
Human Rights Protections
By providing guidance on how to interpret equality, freedom of speech, and protection from arbitrary detention, CIL enhances human rights protections. The Constitutional Court demonstrated how international standards might influence revolutionary domestic decisions in S v. Makwanyane, where it cited international human rights law to support the repeal of the death penalty.2
Children’s Rights
Children’s rights are enshrined in Section 28 of the Constitution and are further upheld by CIL, which is represented in documents like the United Nations Convention on the Rights of the Child (CRC).3 CIL’s significance in practical child protection was demonstrated in Christian Education South Africa v. Minister of Education, when the court evaluated whether school regulations were in line with constitutional rights by taking into account international standards.
Criminal Justice and State Responsibility
CIL has a significant impact on criminal justice, especially when it comes to laws that forbid arbitrary imprisonment, torture, and genocide. Courts have used customary international norms to interpret constitutional safeguards under Sections 12 and 35 in situations like The State v. Ndhlovu.4Furthermore, the interaction of domestic law, international criminal norms, and state obligations is highlighted by South Africa’s adoption of the Rome Statute of the ICC, which embodies CIL principles on war crimes and crimes against humanity.5
Practical Implications
Utilising CIL in South Africa brings to light a number of crucial factors:
- Dynamic Nature: Courts have to look at changing international agreements and state actions.
- Balancing Acts: While upholding constitutional primacy, domestic law may clash with international standards, necessitating cautious judicial interpretation.
- The rights-centered method The interpretation of constitutional rights in the areas of criminal justice, children’s protection, and human rights is guaranteed to be in line with international norms when domestic legislation is aligned with CIL.
Given that it directly influences domestic legal decisions and upholds justice and rights, CIL is not theoretical.
Conclusion
In interpreting South Africa’s Constitution, customary international law is essential because it connects domestic rights, human rights, and criminal justice with international standards. Its incorporation into judicial reasoning guarantees that domestic law will continue to be progressive, principled, and consistent with global norms. The strategy used by South Africa is an excellent example of how national and international standards can coexist peacefully, enhancing the Constitution’s ability to protect and transform.
Reference(S): (OSCOLA)
- S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 33–35
- Universal Declaration of Human Rights GA Res 217A (III), UN GAOR, 3rd sess, UN Doc A/810 (1948) https://www.un.org/en/about-us/universal-declaration-of-human-rights
- Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (CC) paras 28–30 4. The PDF of the Convention text on the UNTS volume 1465: UN TS Volume 1465 PDF
- Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) paras 30–32
- UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
- The State v Ndhlovu (unreported, High Court Pretoria, case no. 134/2018)
- Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
1 The PDF of the Convention text on the UNTS volume 1465: UN TS Volume 1465 PDF
2. S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 33–35; Universal Declaration of Human Rights GA Res 217A (III) https://www.un.org/en/about-us/universal-declaration-of-human-rights
3 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) paras 30–32; UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
4 The State v Ndhlovu (unreported, High Court Pretoria, case no. 134/2018)
5 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
