The rising use of international law by African judiciaries.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Friday, March 26, 2010, by its moderator, Angela Banks of William & Mary School of Law, who introduced the panelists: Erika George of S.J. Quinney College of Law; Obiora Okafor of Osgoode Hall Law School; and Jeremy Levitt of Florida A&M University College of Law. *

* Obiora Okafor did not submit remarks for the Proceedings.

INTERNATIONAL LAW AND AFRICAN JUDICIARIES: THE EXAMPLE OF SOUTH AFRICA

In recent years, commentators have questioned the extent to which African courts would rely upon foreign law or resort to rules of international law in their domestic decision making. (1)

Comparatively, the African continent offers an interesting and important point of departure for exploring the influence of international law on domestic legal systems. While Africa boasts a number of new constitutional democracies, Africa is also home to a number of countries that remain burdened by colonial legacies and conflict.

It would not be unreasonable to expect international and foreign law to meet with considerable resistance or to be rejected as a remnant of an unjust and unpleasant colonial past, particularly given the political imperative in many post-colonial states to move beyond the past. In South Africa, however, not only have international and foreign legal sources been received and relied upon by the judiciary, but the judiciary has reshaped the substance of international law through reconciling indigenous and international normative concepts in revolutionary ways that advance human dignity.

My remarks consider the South African Constitutional Court's ("the Court") expansive use of international and foreign legal sources to inform understandings of substantive human rights. First, it explains the distinctive status granted to international law by the country's constitution. Next, it examines how international and foreign legal sources have been used as interpretive resources and reconciled with indigenous sources of normative authority by different justices on the country's Constitutional Court in selected landmark human rights cases. In conclusion, it explores the potential consequences of the Court's current approaches to incorporating international and foreign legal sources.

INTERNATIONAL LAW IN THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

South Africa has demonstrated a firm constitutional commitment to promote respect for international law and to permit reference to foreign law. The constitution of the Republic of South Africa includes an express requirement that international law be respected as law of the Republic. (2) The South African constitution recognizes both international agreements and customary international law as incorporated into the law of the Republic. Notably, with few exceptions, the constitutions of other African states with provisions on international law do not include express recognition of customary international law. (3)

The South African constitution requires that regard be given to international law even when questions of constitutional or local law are under review. According to Article 39, when interpreting the constitution, "a court, tribunal or forum must consider international law" and "may consider foreign law." (4) Moreover, when interpreting legislation, courts "must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."

CONSTITUTIONAL COURT CASES: INTERNATIONAL AND FOREIGN LAW AS INTERPRETIVE AIDS

The Court has applied constitutional provisions pertaining to international law expansively, more expansively perhaps than a plain reading of the text would seem to require in some of its most celebrated cases. In human rights cases, it is not unusual for the Court to reference the full range of sources of international law identified in the Article 38(1) of the Statute of the International Court of Justice.

In its relatively brief existence, the Court has confronted a number of important human rights cases and has ruled on a range of civil, political, social, economic, and cultural rights. International and foreign legal sources have informed the Court's efforts to give substantive content to the fights contained in the country's constitution and influenced public discourse.

South Africa's constitution is silent on the question of capital punishment. In its 1995 decision, S. v. Makwanyane, the Court spoke--it told the world that the death penalty had no place in the new nation. The eleven members of the Court reached this conclusion unanimously, in eleven separate opinions. Most members of the Court relied on or referenced international or foreign legal sources.

Judge Chaskalson, president of the Court, extols the value of international and foreign authorities when confronting questions as complicated and contested as capital punishment. Properly understood in the context of South Africa's constitution, Chaskalson defines international law to include "non-binding as well as binding law," such that both are appropriately used as "tools of interpretation." (5) Using these tools, Chaskalson's opinion explores evidence of a global trend towards abolition. He concludes that a majority of world's nations in practice oppose capital punishment because only a minority allow capital punishment, and then only in the most extreme instances.

After acknowledging a number of the binding international instruments that could "provide guidance as to the correct interpretation" of particular South African constitutional provisions, Chaskalson reviews the jurisprudence of a number of foreign jurisdictions. The United States was observed to be on a path so fraught with the pragmatic problems of both endless litigation over and arbitrary application of the death penalty as to caution against South Africa following a similar route.

Judges Langa, Madala, and Mokgoro incorporate discussions of international law as well as the African concept of "ubuntu" in their opinions. In particular, Judge...

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