scholarly journals TEORI INTERNASIONALISME DALAM SISTEM HUKUM NASIONAL

2015 ◽  
Vol 9 (2) ◽  
pp. 199
Author(s):  
Ninon Melatyugra
Keyword(s):  
International Law ◽  
South African ◽  
The State ◽  
Process Theory ◽  
The South ◽  
Legal Process ◽  
Crucial Problem ◽  
Municipal Law ◽  
South African Constitution ◽  
Transnational Legal Process

<p><strong>Abstrak</strong></p><p>Konstitusi suatu negara memegang peran penting dalam menjelaskan posisi hukum internasional dalam sistem hukum nasional. The South African Constitution adalah salah satu contoh konstitusi yang menjabarkan secara eksplisit mengenai kedudukan hukum internasional sehingga mempreskripsi pengadilan untuk menggunakan hukum internasional secara langsung dalam wilayah domestik. Masalah muncul bagi negara yang tidak memiliki ketentuan eksplisit dalam konstitusi, seperti Indonesia, namun praktiknya terdapat penggunaan hukum internasional oleh agen negaranya. Artikel ini menawarkan teori internasionalisme untuk memberi dasar legitimasi bagi negara yang ingin patuh terhadap hukum internasional di saat konstitusi tidak memiliki ketentuan eksplisit yang mengaturnya. Teori ini dibangun dengan fondasi 2 teori yakni teori <em>transnational legal process </em>yang menitikberatkan pada bagaimana negara memperlakukan hukum internasional, dan teori <em>international constitution </em>yang berfokus pada bagaimana perlakuan hukum internasional tersebut bersifat konstitusional. </p><p> </p><p><em><strong>Abstract </strong></em></p><p>A constitution of a nation holds an important role to define international law before municipal law. The South African Constitution is an example of constitutions that explain explicitly the position of international law and prescribe its courts to observe international law in domestic zone. A crucial problem has risen in States which have no explicit provisions in their constitutions, like Indonesia, but the State agent acts of using international law are often found. This article offers internationalism theory in order to give the States a legitimacy to be comply with international law although the constitution lacks the explicit provisions. The theory contains 2 basic theories which are transnational legal process theory that stresses on how states treat international law properly; and international constitution theory that focuses on how the treatment becomes constitutional.</p>

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. 

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.

Professor John Dugard: A South African Perspective

2007 ◽  
Vol 20 (4) ◽  
pp. 955-964 ◽  
Author(s):  
MAX DU PLESSIS
Keyword(s):  
Human Rights ◽  
International Law ◽  
South African ◽  
The South ◽  
International Court Of Justice ◽  
Human Rights Abuses ◽  
International Court ◽  
The Government ◽  
South African Constitution ◽  
The Impact

This article considers the work of John Dugard in the field of human rights and international law and the impact thereof on the South African legal landscape. After tracing the importance of Dugard's early work in South Africa in the fields of legal philosophy, human rights, and international law, the article turns to consider the later achievements in Dugard's prestigious career. The author highlights the numerous cases in which Dugard appeared as counsel before the South African courts, and considers the impact that Dugard had on the drafting of the South African Constitution in relation to international law and its use in interpreting the South African Bill of Rights. The final section of the article considers the shameful failure of the South African government to support Dugard in his bid to be appointed as a judge of the International Court of Justice. The author concludes that notwithstanding the fact that the government has not accorded him the recognition he deserves, Dugard's pioneering human rights work continues unabated in his various positions, including in his role as the UN Special Rapporteur on human rights abuses in occupied Palestine.

scholarly journals Recalibrating Everyday Space: Using Section 24 of the South African Constitution to Resolve Contestation in the Urban and Spatial Environment

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Thomas Coggin
Keyword(s):  
South African ◽  
Shape Space ◽  
Prima Facie ◽  
The State ◽  
The South ◽  
African City ◽  
Spatial Environment ◽  
South African Constitution ◽  
The Right ◽  
Everyday Space

Positioned as existing predominantly within a green agenda, the right to an environment (section 24 of the Constitution of the Republic of South Africa, 1996) presents numerous opportunities for rights-based interpretation in the "brown" urban and spatial environment. In this article I conduct such an exercise, focussing on both the right to freedom of movement (section 21 of the Constitution) and the right to the safety and security of the person (section 12 of the Constitution). I begin by drawing out the historical and contemporary spatial implications of both rights, drawing on empirical research that demonstrates how the enclosure of everyday space through gating practices and private securitisation in the South African city serves to extend spatial apartheid into the current day. A siloed interpretation of both rights, however, leads to an impasse between the two. Both rights are prima facie of an equal value in a constitutional setting. To resolve this standoff, I argue for the use of the environmental right as a constitutional value. This is an underutilised right in the South African Constitution, and yet it holds much promise given how it seeks to protect the health and wellbeing of both present and future generations. There are two benefits to employing the environmental right as a constitutional value. First, the environmental right situates both section 12 and section 21 in a symbiosis of individual claims to shared resources, in the process recalibrating the human ecology of the urban and spatial environment away from the centrality of dominant actors and towards a polycentricity of interests. In so doing, section 24 provides a fuller and more connected picture of both rights. Second, the duty implicit in the environmental right reveals how to begin realising these rights on a wider scale that goes beyond individual injustices and towards community justice. I argue strongly that this duty exists on the state: left unattended to, everyday space becomes the preserve of those with the means – financial or otherwise – to shape space according to their own anti-public interests. In this regard, I present two instances of policy and legal choices available to the state that serve to undo contemporary experiences of spatial apartheid

Revisiting the Monism and Dualism Dichotomy: What does the South African Constitution of 1996 and the Practice by the Courts tell us about the Reception of SADC Community Law (Treaty Law) in South Africa?

2021 ◽  
Vol 29 (1) ◽  
pp. 168-182
Author(s):  
Moses Retselisistoe Phooko
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Main Question ◽  
The South ◽  
The Rule Of Law ◽  
Community Law ◽  
Municipal Law ◽  
Major Shift ◽  
South African Constitution

The jurisprudence of the (suspended) SADC Tribunal shows that the Tribunal was prepared to utilise the principles of democracy, human rights and the rule of law contained in the Treaty of the Southern African Development Community (SADC Treaty) to ensure that SADC member states fulfil their treaty obligations. The decisions rendered by the SADC Tribunal and the participation of the South African former President in a process that halted the functioning of the Tribunal have brought interesting legal developments in the South African legal system in so far as the reception and application of SADC community law in South African municipal law is concerned. The argument presented in this article is that the recent seemingly monist approach by the courts represents a major shift from a prescribed procedure provided for in the Constitution of South Africa, 1996 (the Constitution). The practice by the courts further ignores the dualist nature of South Africa's legal system. The main question presented in this discourse is whether a departure by the courts from a constitutionally mandated procedure of domesticating SADC community law into municipal law signifies a new and settled norm which entails that South Africa now follows a hybrid system (i.e. monism and dualism) of treaty incorporation? In light of this possible legal uncertainty, I propose that South Africa adopts a harmonisation theory to address the legal gap created by the courts.

Does German Law Still Matter?A Few Remarks about the Relevance of Foreign Law in General and German Law in Particular in South African Legal Development with Regard to the Issue of Constructive Expropriation

2002 ◽  
Vol 3 (9) ◽  
Author(s):  
Hanri Mostert
Keyword(s):  
International Law ◽  
South African ◽  
German Law ◽  
Comparative Law ◽  
Fundamental Rights ◽  
The South ◽  
Legal Principles ◽  
Legal Development ◽  
Foreign Law ◽  
South African Constitution

Ever since its enactment, Sec. 39 para. 1 of the South African Constitution has fascinated lawyers with an inclination for comparative law. Subsections (b) and (c) of this provision compels the South African judiciary to consider international law and enables it to consider foreign law in the interpretation of any of the fundamental rights espoused by the Constitution. Sec. 35 para. 1 of the Transitional (Interim) Constitution, which preceded the 1996 Constitution, contained a similar provision. Meanwhile, it has become a feature of the South African Constitutional Court's decision-making process to work comparatively in the solution of many of the issues brought before it. Thus, the new Constitution, apart from introducing a new constitutional and political order in South Africa, gave rise to renewed interest in comparative law and the reception of foreign legal principles.

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