Theme 14: General Provisions PDF

Lecture theme 14: General Provisions Inquire what the constitutional requirements regarding international agreements are. What is an international treaty? ▪ A treaty is a written (international) agreement between states inter se, or between states and international organisations, which agreement i...

Lecture theme 14: General Provisions Inquire what the constitutional requirements regarding international agreements are. What is an international treaty? ▪ A treaty is a written (international) agreement between states inter se, or between states and international organisations, which agreement is then governed by the principles of international law. Inquire and distinguish between bilateral and multilateral international treaties. ▪ Some treaties are bilateral, which means that they are between two states only. ▪ Other treaties are multilateral, which means that they involve many states. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Do provincial governments play a direct role in foreign affairs? ▪ No, all aspects of treaties and foreign affairs are reserved entirely for the national government. Provincial governments have no powers in such functional areas. Contemplate the process of ratification of a treaty. ▪ Many treaties do not come into force without a prior process of ratification. ▪ Ratification is the act of endorsing the signing of a treaty. ▪ The ratifying state thus has an opportunity to reconsider the treaty and to make changes to its own laws in order to comply with the treaty. Treaties normally indicate whether ratification is required. ▪ The South African Constitution requires Parliament to ratify a treaty. Where Parliament has agreed to the ratification of or accession to a treaty by resolution, such treaty will be binding on the Republic of South Africa. ▪ However, some treaties come into force without the need for ratification. According to the South African doctrine of judicial precedent, ratification of a treaty is not required where an intention to dispense with ratification can be inferred from the nature of the treaty and manner in which it was negotiated. ▪ The immediate enforcement of treaties is usually applicable to bilateral treaties or treaties of a technical, administrative or executive nature. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire and distinguish between the two approaches followed regarding the implementation of international treaties in a country’s domestic law. ▪ In addition to ratification, the implementation of treaties in the domestic law of a state is also important. ▪ Two approaches can be distinguished in this regard. In terms of the dualist approach, a distinction is made between the binding force of a treaty in international law and in the domestic law of a country. The provisions of the relevant treaty cannot be implemented until domestic law has been enacted. ▪ In contrast, the monist approach does not require a further act of legislative incorporation before a treaty becomes part of that country’s municipal law. ▪ Before 1994, South Africa followed the British approach and thus required a treaty to be incorporated into domestic law before a court could invoke the content of such a treaty. ▪ Legislative incorporation was achieved by including the provisions of the treaty in an Act of Parliament, or by annexing the treaty to a statute in the form of a Schedule or by means of a proclamation by the executive. When will an international agreement be binding on the Republic of South Africa? ▪ Treaties that are binding on South Africa internationally but not domestically can further be employed as a guide to the interpretation of ambiguous statutes or as evidence of a customary rule of international law. ▪ However, such treaties cannot be applied directly by the South African courts. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. When will an international agreement become law in the Republic of South Africa? ▪ Although the Interim Constitution favoured the monist approach, the final Constitution advocates the dualist approach. ▪ Self-executing provisions of agreements that have been approved by Parliament are law in South Africa unless they are inconsistent with the Constitution or any other Act of Parliament Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share.