Is it Possible to Define the Impossible – What is a ‘Community’ for Purposes of Section 235 of the Constitution of South Africa?

2020 ◽  
Vol 27 (4) ◽  
pp. 826-854
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
Cultural Heritage ◽  
International Law ◽  
Constitutional Law ◽  
National Level ◽  
Self Determination ◽  
Common Language ◽  
Language Community ◽  
Minority Nationality ◽  
State Constitutional Law

The Constitution of South Africa contains the promise in Section 235 that any community that shares a common language and cultural heritage may be granted self-determination. The Constitution does not give any guidance about who the communities are that qualify for this self-determination. Terms such as minority, nationality and peoples have been notoriously difficult to define. The term ‘community’ has now been added to this list. In this article, consideration is given to international law and state constitutional law to ascertain how the term ‘community’ can be applied in South Africa; whether the term ‘culture’ should be used to expand or restrict the composition of the language community; and whether the community should be organised at a national level or whether local and regional communities could also qualify for a form of self-determination.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

Constitutional Protection of the Right to Self-Determination

2021 ◽  
pp. 1-21
Author(s):  
Marishet Mohammed Hamza
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Democratic Republic ◽  
Self Determination ◽  
Comparative Perspective ◽  
Constitutional Protection ◽  
Domestic Legislation ◽  
The Right ◽  
Legal Right

Abstract The right to self-determination is an essential international law principle that holds an erga omnes character. Also, the right is often enshrined under domestic legislation, including constitutions. The 1995 Federal Democratic Republic of Ethiopia Constitution (fdre Constitution) is one such constitution and, uniquely, it explicitly recognizes the right to self-determination including the right of secession as an unconditional right of the nations, nationalities, and peoples in Ethiopia. This paper selects the fdre Constitution and analyses whether such constitutional law frameworks better address some of the contentious matters concerning the right to self-determination under international law. In a comparative perspective (with international law), the article analyses, inter alia, how the fdre Constitution approach the questions of who the subjects of the right to self-determination are, and the substantive guarantees for exercising internal and external aspects of the right to self-determination with particular emphasis on secession as a legal right.

ENGAGING WITH INTERNATIONAL LAW

2020 ◽  
Vol 69 (3) ◽  
pp. 505-519
Author(s):  
Abdulqawi Ahmed Yusuf
Keyword(s):  
International Relations ◽  
International Law ◽  
Self Determination ◽  
Past Century ◽  
Common Language ◽  
Privacy Rights ◽  
The Past ◽  
International Obligations ◽  
Multilateral System ◽  
Positive Evolution

AbstractThis article considers the positive evolution of international law in the past century, and the emergence of a rules-based multilateral system under the UN Charter, which has, inter alia, enabled formerly colonised peoples to exercise their right to self-determination and prohibited the use of force in international relations. The author reaffirms his faith in the ability of international law to provide a common language for the international community to face successfully common challenges, such as poverty, global warming, and the protection of privacy rights in the era of social media and artificial intelligence. Looking beyond traditional beneficiaries and duty-bearers of international obligations, the author makes a case for all actors to engage in respecting, upholding and promoting international law.

International and Foreign Law in Domestic Constitutional Law

2021 ◽  
pp. 373-392
Author(s):  
Muna Ndulo
Keyword(s):  
United States ◽  
South Africa ◽  
International Law ◽  
Constitutional Law ◽  
World Wide ◽  
The United States ◽  
Post Conflict ◽  
Foreign Law ◽  
Domestic Courts

This chapter illustrates the role of international and foreign law in domestic constitutional law. Through the case analysis of South Africa (a post conflict state) and the United States (often seen as a country that is not too friendly to international and foreign legal systems), it discusses the role of international and foreign law in reconciling the regional development of the rule of law in a country, by working closely together with domestic constitutional law. The domestic courts both in the United States and South Africa, whenever they deem it appropriate, do consider international and foreign law in the resolution of disputes before them. The conditions under which each jurisdiction may resort to foreign or international law, as well as the criteria used for taking them into consideration, vary. However, most importantly, this practice should be encouraged as it promotes the uniform interpretation of international law and the progressive advancement of norms world-wide, which are aspects that are especially important in the field of human rights.

Ambivalent Self-Determination

2021 ◽  
pp. 280-294
Author(s):  
Maria Cahill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
International Treaties ◽  
International Treaty ◽  
Atypical Case ◽  
Correct Procedure ◽  
The Eu

This chapter focuses on the interface between international law and Irish constitutionalism. Part I examines how Ireland achieved constitutional self-determination first on the basis of and then in violation of an international treaty. The remainder of the chapter concentrates on the place of international law within the framework provided by the 1937 Constitution. Part II highlights how constitutional law has, in general, required that international treaties may neither displace the content of the Constitution nor curtail the competences of the legislature or the courts; as such, it seeks to preserve self-determination as substantive constitutional integrity. Part III focuses on the atypical case of the EU, for which the concept of self-determination used is consciously ambivalent about substantive constitutional integrity, tolerating significant compromises as long as they are made using the correct procedure: in other words, self-determination is reconceived as procedural constitutional integrity.

scholarly journals Zagrożenie życia narodu jako przesłanka wstępna derogacji zobowiązań w dziedzinie praw człowieka

2020 ◽  
pp. 9-41
Author(s):  
Tadeusz Jasudowicz
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
Political Rights ◽  
States Of Emergency ◽  
Treaty Monitoring ◽  
Public Emergency ◽  
Civil And Political Rights

To determine the fate of human rights in extreme situations, the treaties contain a mechanism for derogating from obligations, i.e. derogations from their enforceability in such exceptional situations. The initial and fundamental criterion under which derogation steps are admissible is the existence of an exceptional public emergency that threatens the life of the nation, as referred to in Article 4(1) of the International Covenant on Civil and Political Rights and Article 15(1) of the European Charter of Human Rights, and about which Professor Anna Michalska wrote so competently in 1997. Neither the constitutions of modern states nor their practice of introducing states of emergency are helpful in defining this criterion more precisely; most often, they do not use it at all. Unfortunately, it is not to be found in Chapter XI of the Polish Constitution “States of Emergency”, nor in the laws of 2002 regulating these states. In the practice of the treaty monitoring bodies (Human Rights Committee in the ICCPR system; the European Commission and the Court of Human Rights in the ECHR system), we do not find incontestable nor indisputable indications. The concept of the “nation” is referred to society as a whole and is to be associated with its physical survival. In the author’s opinion, this is not the correct approach, as it is and must be about a “living nation”, a nation effectively exercising its rights. The enslavement of a nation, its subjugation, elimination of opportunities for its self-determination – far from its extermination – can unquestionably meet the requirements of the criterion of a threat to the life of the nation. The study of constitutional law (the nation-sovereign) and international law (the principle and right to self-determination of the nation) unequivocally confirms this thesis.

Territorial Modifications and Breakups in Federal States

1996 ◽  
Vol 33 ◽  
pp. 41-74 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
Federal States ◽  
Domestic Law ◽  
Extensive Practice ◽  
The Way

SummaryThis article considers the way in which territorial modifications and breakups in federal states are dealt with in domestic and in international law. It investigates whether federal states permit separatist claims of their minorities for “internal modifications” on the basis of constitutional Law, such as the formation of new member units or the merger of existing member units, and whether domestic law knows of any secessionist claims for “external modifications,” such as the formation of new sovereign states or the merger or association with existing states. The extensive practice surveyed by the author allows for a new outlook on the well-known problem of “self-determination.”

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