South African Yearbook of International Law. Volume 13, 1987-1988. (Pretoria: VerLoren van Themaat Centre for International Law, University of South Africa, 1989. Pp. 554. Index. R25; $25.)

1989 ◽  
Vol 83 (4) ◽  
pp. 983-983
Keyword(s):  
South Africa ◽  
International Law ◽  
South African

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 17 South Africa: South African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Comparative Approach ◽  
Private International Law ◽  
Rules And Principles ◽  
The Hague ◽  
The Republic ◽  
Contractual Obligations ◽  
Academic Authors

This chapter provides the reader with comments on the Hague Principles from the perspective of South African private international law of contract.Private international law in the Republic of South Africa is historically based on Roman–Dutch and English law, but is today influenced by domestic constitutional values, especially in the fields of international family and succession law. In the realm of the international law of obligations, the impact of the English common law is particularly strong. The notion of ‘the proper law of the contract’ is therefore widely used to indicate the law applicable to contractual obligations. The sources of private international law of contract are almost exclusively case law and the opinions of academic authors. The South African courts have always followed a comparative approach in respect of private international law, initially under the influence of an internationalist understanding of the conflict of laws. The courts would therefore certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of South African private international law.

scholarly journals Consent, custom and international law in South Africa: What Australian lawmakers could learn

2019 ◽  
Vol 44 (3) ◽  
pp. 197-202
Author(s):  
Stephen Young
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Mineral Resources ◽  
Bill Of Rights ◽  
Customary Laws ◽  
Traditional Communities

This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.

scholarly journals Interpretation Consistent with International Law? The Detention of Asylum Seekers in South Africa

Refuge ◽  
2002 ◽  
pp. 6-11
Author(s):  
Jaya Ramji
Keyword(s):  
South Africa ◽  
Human Rights ◽  
International Law ◽  
South African ◽  
Asylum Seekers ◽  
Training Programs ◽  
International Standards ◽  
African Government ◽  
Human Rights Standards ◽  
And Training

On paper, South African law concerning detention of asylum seekers appears consistent with international standards. However, the text of the Act is vague and overly broad, permitting interpretations inconsistent with international human rights standards. Further, in practice, officials often fail to uphold even the lowest standards of the Act, in violation of South African law. In order to protect the rights of asylum seekers, the South African government should institute formal guidelines and training programs, as well as a system of strong supervision and accountability, to ensure that the Act and Regulations are interpreted in a manner consistent with international law. Such a step will enable South Africa to live up to its noble post-apartheid human rights ideals.

scholarly journals PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Ashley Charles Moorhouse ◽  
David Abrahams
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Subject Matter ◽  
Review Process ◽  
The State ◽  
The South ◽  
Customary International Law ◽  
National Implementation ◽  
The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause. 

Part 1 The Cold War Era (1945–89), 31 South African Incursions into Lesotho—1982

2018 ◽  
Author(s):  
Reinold Theresa
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Progressive Development ◽  
Self Defense ◽  
Un Security Council ◽  
Un General Assembly ◽  
Legal Arguments ◽  
The Right ◽  
The Cold War

This chapter discusses the legality of South Africa’s incursion in Lesotho in 1982. After describing the facts of the case, it presents the legal arguments of the main protagonists – South Africa and Lesotho - and canvasses the positions taken by the UN General Assembly, the UN Security Council, as well as other important diplomatic players. It then assesses the legality of the intervention and discusses its impact on the progressive development of international law. It concludes that the incursion violated Article 2(4) of the UN Charter and that, in light of the overwhelmingly negative international reaction, the raid could not trigger an expanded reading of the right to self-defense, as was claimed by South Africa.

South African Law on Immunities

2019 ◽  
pp. 663-684
Author(s):  
Hennie Strydom
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
International Criminal ◽  
Criminal Court ◽  
African Union ◽  
Regional Organizations ◽  
International Treaty ◽  
Customary International Law ◽  
Head Of State

This chapter describes South Africa’s law governing the immunity of foreign states and officials, as well as of regional organizations. As the chapter explains, this law is made up of a combination of customary international law, international treaty law, English law, parliamentary legislation, and constitutional law. The chapter begins by describing the domestic status of international law in South Africa. It then describes in detail the 1981 Foreign States Immunities Act, including the various limitations on and exceptions to immunity set forth in the Act. After discussing the immunity of foreign states, it addresses head of state and diplomatic immunities and describes the controversial Bashir case from 2015 concerning a request from the International Criminal Court that South Africa arrest and surrender a sitting head of state. Finally, the chapter discusses the immunity of regional organizations and their staff, in particular the African Union and the South African Development Community.

The Interaction between Section 233 of the South African Constitution and the Commentaries to the OECD Model Tax Convention on Income and on Capital

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Enelia Jansen van Rensburg
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
The South ◽  
Double Taxation ◽  
The Republic ◽  
South African Constitution

The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law. The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.

Liberty of Entering in International Agreements and Compliance of International Obligations

2021 ◽  
Vol 18 (1) ◽  
pp. 105-127
Author(s):  
Elisa Tino
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
International Agreements ◽  
Constitutional Court ◽  
The South ◽  
Member States ◽  
High Court ◽  
International Obligations

Abstract In August 2019 South Africa withdrew its signature from the Protocol on sadc Tribunal signed in 2014 by 9 sadc Member States. This decision was adopted in compliance with the judgment of the South African High Court as confirmed by the Constitutional Court which ruled that the participation of the President in the decision to suspend the sadc Tribunal, as well as his signature of the 2014 Protocol were unconstitutional, unlawful and irrational. These rulings are particularly ground-breaking in light of the conclusions they reached and raised some interesting implications under international law.

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