PBL 210 Exam - Theme 14: General Provisions & Traditional Arrangements of Constitution PDF

PBL 210: EXAM THEME 14: GENERAL PROVISIONS & TRADITIONAL ARRANGEMENTS OF CONSTITUTION ________________________________________  In the final chapter of the Constitution, we find: a) Principles of international law. b) Self-determination. c) Agency and delegation. d) Definitions. e) Traditional arr...

PBL 210: EXAM THEME 14: GENERAL PROVISIONS & TRADITIONAL ARRANGEMENTS OF CONSTITUTION ________________________________________  In the final chapter of the Constitution, we find: a) Principles of international law. b) Self-determination. c) Agency and delegation. d) Definitions. e) Traditional arrangements. INTERNATIONAL LAW:  All SA Constitutions pre-1993 ignored International Law because it was regarded as inferior to SA domestic law.  Interim Constitution & Constitution of RSA, 1996 changed this and gave International Law a central place in SA’s new Constitutional dispensation. International Law = the body of law which regulates or binds states in the world in relation to their relationships with other states.  Sources of International Law: a) International conventions. b) Customary International Law. c) General provisions of law recognised by civilised nations. d) Judicial decisions. e) Teachings of mostly high qualified publicists on international law. S 231 OF C: INTERNATIONAL ARRANGEMENTS  A treaty = written agreement between states, which is governed by international law.  Treaties can be bilateral (just between 2 states) or multilateral (involves many states)  S 231 is divided into 2 stages: 1) S 231(1) & S 231(2) 2) S 231(4) & S 231(5) - CHRISTELLE SAMONS PBL 210: EXAM - - 1) First stage: S 231(1) & 231(2) Negotiating + signing of all international agreements = responsibility of national executive. After national executive negotiated + signed international agreement, they go back to parliament. At parliament, the international agreement binds the republic only after it has been approved by a resolution which was adopted by both houses of parliament (NA & NCoP) After both houses passed agreement, national executive can go back and ratify the international agreement. When national executive ratifies the agreement, it is binding the republic on international level. 2) Second stage: S 231(4) & S 231(5) - Any international agreement becomes law in Republic when it is enacted into law by national legislation, meaning that an Act of Parliament is required for the international agreement to become part of SA’s domestic law. - SA is then bound by the international agreement.  Constitution determines that treaty-making powers are shared between national executive and national legislature.  Constitution provides that negotiating + signing of all international agreements is the responsibility of the national executive. - Department of International Relations and Co-operation is in practice responsible for taking part in drafting + negotiating treaties.  Many treaties do not come into force without a prior process of ratification.  Ratification = act of endorsing the signing of a treaty. - CHRISTELLE SAMONS PBL 210: EXAM  Dualist approach = provisions of a treaty cannot be implemented until domestic law has been enacted.  Monist approach = does not require a further act of legislative incorporation before a treaty becomes part of a country’s municipal law.  In SA we follow a dualist approach. Glenister case:  Court confirms the international agreement that has been adopted in Parliament by resolution, and ratified by the executive is binding on SA.  Failure to observe the provisions of this agreement may result in SA incurring responsibility towards other signatory state parties to that international agreement.  International agreement that has been ratified by national executive + has been adopted by resolution, by parliament under S 231(1), does not become part of our law until it is incorporated into SA law.  International agreement that has not been incorporated into our law, by Act of Parliament, cannot be a source of rights & obligations. S 233 OF C: APPLICATION OF INTERNATIONAL LAW When interpreting any legislation, every SA court must prefer any reasonable interpretation of the legislation that is consistent with international law every any alternative interpretation that is inconsistent with international law. - CHRISTELLE SAMONS