Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations
The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliame...
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| Format: | Article |
| Language: | Afrikaans |
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North-West University
2019-10-01
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| Series: | Potchefstroom Electronic Law Journal |
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| Online Access: | https://journals.assaf.org.za/index.php/per/article/view/6253 |
| _version_ | 1818064533589065728 |
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| author | Francois Venter |
| author_facet | Francois Venter |
| author_sort | Francois Venter |
| collection | DOAJ |
| description | The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts.
This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms.
Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism.
While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern. |
| first_indexed | 2024-12-10T14:37:31Z |
| format | Article |
| id | doaj.art-f974c7e5fe8f4cb8a2cc2d57efd20743 |
| institution | Directory Open Access Journal |
| issn | 1727-3781 |
| language | Afrikaans |
| last_indexed | 2024-12-10T14:37:31Z |
| publishDate | 2019-10-01 |
| publisher | North-West University |
| record_format | Article |
| series | Potchefstroom Electronic Law Journal |
| spelling | doaj.art-f974c7e5fe8f4cb8a2cc2d57efd207432022-12-22T01:44:48ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812019-10-012210.17159/1727-3781/2019/v22i0a6253Judicial Defence of Constitutionalism in the Assessment of South Africa's International ObligationsFrancois Venter0Research fellow at the faculty of law, North-West University and founding editor of PERThe (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts. This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms. Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism. While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern.https://journals.assaf.org.za/index.php/per/article/view/6253International human rightsconstitutionalismaccountabilitydualismtreatiesinternational relations |
| spellingShingle | Francois Venter Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations Potchefstroom Electronic Law Journal International human rights constitutionalism accountability dualism treaties international relations |
| title | Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations |
| title_full | Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations |
| title_fullStr | Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations |
| title_full_unstemmed | Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations |
| title_short | Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations |
| title_sort | judicial defence of constitutionalism in the assessment of south africa s international obligations |
| topic | International human rights constitutionalism accountability dualism treaties international relations |
| url | https://journals.assaf.org.za/index.php/per/article/view/6253 |
| work_keys_str_mv | AT francoisventer judicialdefenceofconstitutionalismintheassessmentofsouthafricasinternationalobligations |