Approval of an International Treaty in Parliament: How Does Section 231(2) ‘Bind the Republic’?

Constitutional Court Review V (2013) 417-434

18 Pages Posted: 19 Jul 2015

See all articles by Franziska Sucker

Franziska Sucker

School of Law, University of the Witwatersrand

Date Written: December 13, 2013

Abstract

Here’s a question that exorcises jurist and academic alike: When and how is South Africa bound by an international treaty at the international level and/or the domestic level?

This uncertainty has been made patently obvious in several judgments of the Constitutional Court. Glenister is the most recent manifestation. In Glenister, this question of how and when South Africa is bound arose because the relevant international treaty, the Corruption Convention, was signed and ratified by the national executive, but not incorporated in South African law.

The Court was unable to establish whether the Convention was approved by resolution in Parliament as required in sec 231(2). In justifying its conclusions, the Glenister-Court focuses on 231(2) and the binding effect of such an approval for South Africa. It’s worth noting that a closely split minority and majority disagree as to how an international treaty approved by resolution in Parliament binds South Africa.

The Glenister-Court contends that an approval has direct effect in terms of the Republic’s obligations at international level and domestic constitutional effect, when international obligations entered into are ‘intrinsic to the Constitution itself’. The minority counters that an approval binds South Africa only on the international plane.

This judicial disagreement must give us pause. For we have, as yet, no definitive answer to the question as to how an approval of an international treaty by resolution in Parliament, binds South Africa.

According to 231(2) ‘[a]n international agreement binds the Republic only after it has been approved by resolution in’ Parliament, ‘unless it is an agreement referred to in subsection (3)’. In contrast to both the minority-and-majority-judgment, I suggest that an approval, as required in 231(2), does not bind South Africa at the international level.Thus, in order for the endorsement ‘binds the Republic’ to have legal effect, it must have domestic effect in terms of a good faith obligation. This requirement, in turn, has significant implications for the reasoning in Glenister.

Keywords: Constitutional law and relation to international aw

JEL Classification: k33

Suggested Citation

Sucker, Franziska, Approval of an International Treaty in Parliament: How Does Section 231(2) ‘Bind the Republic’? (December 13, 2013). Constitutional Court Review V (2013) 417-434, Available at SSRN: https://ssrn.com/abstract=2537731

Franziska Sucker (Contact Author)

School of Law, University of the Witwatersrand ( email )

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Johannesburg, Gauteng 2050
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