Making Sense of the South African Court's Evolving Approach to the Application of Unincorporated Treaties, by Andreas Coutsoudis

ABSTRACT: Treaties, which over the last few decades have increased in number and scope, play a significant role in determining the content and reach of international law. It often falls to domestic courts to mediate the interface between international treaty law and domestic law and reconcile those laws by determining if and how treaties find application in the domestic sphere. In that context, this article provides an account of the evolving nature of South African courts’ application of unincorporated treaties (those that have not been incorporated into domestic law by legislation) within the framework of the Constitution. The article begins by outlining the various ways in which treaties find application in South African law before providing a critical evaluation of the courts’ approach to the application of unincorporated treaties. The Constitutional Court’s jurisprudence has in successive cases evolved, if not always consistently, to recognise that unincorporated treaties do, in many circumstances, create domestically enforceable obligations for the government, given the integrative international law injunctions of the Constitution. Having considered the courts’ evolving approach to the application of unincorporated treaties, the article argues that the courts need to adopt an approach to the application of unincorporated treaties that is guided by four principles anchored in the Constitution. The approach should be: holistic (having due regard to the whole Constitution); harmonising (ensuring that, where possible, domestic law and international law do not conflict); certain; and rigorous. Flowing from these four principles, the article makes certain proposals for charting the course ahead, so that South Africa, a country whose Constitution is often heralded as particularly friendly to international law, is not found, in practice, to be no more than a fair-weather friend of international law.