We are all international lawyers now: The Constitution’s international-law trifecta comes of age
Authors Andreas Coutsoudis, Max du Plessis
Affiliations: Advocate, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal; Advocate, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 136 Issue 3, p. 433-462
The Constitution and its interpretation by the courts have brought about a sea-change in the nature and extent of international-law use and acceptance in South Africa. What one sees is a careful weaving together of international law and our domestic law by the Constitutional Court and other courts: an autochthonous South African approach to international law’s use and application. The article focuses on three critical elements of this transformation what we call the Constitution’s international-law trifecta. First, the Constitution requires all domestic statutes to be interpreted as far as possible to comply with and give effect to international law. Secondly, the Constitution expressly provides for all customary international law to form part of South African law. It must be applied, and can be applied, directly. Thirdly, flowing from the Constitution’s enshrining of the rule of law, the courts have determined that it is a justiciable violation of the principle of legality for public officials to act (or take decisions) in violation of South Africa’s international-law obligations, whether inside or outside South Africa. As we attempt to show in this article, this trifecta’s accumulative effect heralds a significant new vista for constitutionally recognised and incorporated international law in the domestic sphere. The leitmotif of this dawning epoch may well be that we are all international lawyers now.