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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The Place of Public International Law in the New South African Constitutional Order: With Special Reference to International Human Rights and Humanitarian Law
Author:De Wet, Erika
Year:1998
Periodical:Recht in Afrika = Law in Africa = Droit en Afrique
Issue:2
Pages:207-234
Language:English
Geographic term:South Africa
Subjects:international law
public law
human rights
Law, Human Rights and Violence
Politics and Government
Abstract:Section 35(1) of South Africa's interim Constitution and section 39(1) of the final 1996 Constitution require courts to have regard to applicable public international law when interpreting the Bill of Rights. The author examines the effect of this obligation on the work of the Constitutional Court by commenting three judgements, rendered under the interim Constitution, concerning the constitutionality of the death penalty (S. v. Makwanyane and another, decision delivered 6 June 1995), the language rights of minorities (dispute concerning the constitutionality of certain provisions of the Gauteng School Education Bill of 1995, decision of 29 February 1996), and the granting of amnesty to perpetrators of crimes under the apartheid regime (Azanian Peoples Organisation-Azapo and others v. President of the Republic of South Africa and others, decision delivered 30 May 1996). The author concludes that the Constitutional Court has yet to develop a uniform and consistent strategy with respect to which international instruments to consider as interpretation guidelines. Conceptual clarity on the importance of binding versus non-binding international law in the context of South Africa is lacking. It also seems as if the Constitutional judges were not comfortable with public international law once it moved beyond the boundaries of international human rights law, and that they were unaware of recent developments in the field of international humanitarian law. Notes, ref., sum.
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