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2 January 1995
Theme 4 - Constitutional principles
THE STATUS
OF THE VOLKSREG IN THE NEW CONSITUTION
1. Section 231(4) of the Republic
of Sc,Ltth Africa Constitution Act (200/93) (the "Transitional cconstitlttion"}
deals with the role
of pub‑lic international law in South African law, and
reads:
"The rules i:.f international public law binding the Republic form
part cif the law of the Republic, unless incompatible with this
Constitution or
an Act of Parliament".
2. It is suggested that this provision be retained
in the final con‑stitution, but amended as follows:
"Generally
accepted rules of international law and rules of public in‑ternational law
form part of the law of the Republic".
- Several
objections can be raised to the present wording of
Section
231(4):
3.1 It only refers to "rltles of
international public law...", a con‑siderably narrower formulation than
that suggested. The
formulation "generally acceptable rules of international
law" is in accordance wi'th those found in inter alia Namibian, German and
Italian constitlt‑tions (sections 144, 25 and 101101). This suggested
formulation will also include specific, regional and
customary international
law, as well as the reference to "general principles of law recognised by
civilised nations" as contained
in Section 38 of the Statute of the
International Tribunal. Ob.jection may be raised to its vagueness, but after
interpretational
precedents set in Nambia and Germany the con‑stitutional
court should have nc, problems with the exact parameters and content
of the
formulation.
3.2 The phrase "...binding the Republic..." serves no
apparent pur‑pose, is confusing and must be scrapped. Naturally no-one
intends in‑corporating international laws not binding on SA into municipal
laws. The phrase will only create problems of interpretation.
3.3 The
phrase unless incompatible with this Constitution or an Act of Parliament.."
should be scrapped in toto. The German constitu‑tion
makes no provision
for the exclusion of international law from German law and also states expressly
that international rules will
en‑.joy precedence over legislation (Section
25). Section 25 of the German constitution reads as follows: "The general rules
of public interna‑tional law shall be an integral part of Federal law.
They shall create precedence over statutes and shall
directly create rights and
duties for the inhabitants of the Federal territory."
With human rights
in mind, the German approach should be followed in the final SA constitution.
It should not be possible to exclude
the
applicability of international
'law from municipal law by legislation and it should be stated expressly that
the rules of international
law enjoy precedence over municipal laws. This will
mean that internation‑al ccinvl-ntions regarding the prcttection of human
rights will form part of SA municipal law to the extent in which such
conventions are ac‑cepted as public international law.
In this way human
rights can be given double protection in SA (in terms of the Human Rights
Charter as well as direct application
of international law rules regarding the
protection of human rights) with the added advantage that
intl-rnation‑al,developments
in human rights will automatically and
immediately be incorporated intc, SA law.
4. In the light of the above
and the emphasis being put on the protec‑tion of human rights/basic rights
in the transitional
constitution (see also Sect,ions 231,,35(1), 116(2), 226(7)
and 227(2)(d)) the real intention that international law should form
part of the
measures prc.‑tecting human rights in SA (Sec 35(.1.) and 116(2)) and the
support of most of the political parties,
it is not inappropriate and there
should be no objection to a provision in the new constitution maling
international law directly
applicable to the individual. Such provi‑sions
exist in the German constitution (Sec 25) and the Dutch con‑stitution
(Secticens 93 and 94, i.r.o. provisions of international agreements) and the
Macedonian constitution (Sec 8).
It could read as follows:
"The
basic rights and freedoms enjoying recognition in international law, shall apply
directly to SA citizens and shall enjoy precedence
over any legal
provision".
A provision in respect of the direct protection of human
rights will accord with recent international developments: during the World
Conference on Human Rights (Vienna, 93) it was decided that international
protection of human rights should focus on the individual,
not on groups, while
Section 25 of the European Convention of Human Rights confers on
indi‑viduals the right to petition the
Council of Europe directly on
viola‑tions of human rights by one of the contracting states.
A
Stemmet
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