Public International & Immigration Law Advocates
What is Public International & Immigration Law?
Public international law is that body of rules and laws that regulates relations between states and the governments of those states, for example in relation to air and sea traffic, fishing zones, international trade, extradition, refugees, etc. The rules and laws originate primarily from treaties (which are essentially agreements), but they may also arise from customary international law (which is a body of rules akin to the common law in domestic legal orders). The value and importance of international law has gained prominence since 1994 under the Constitution. Section 232 of the Constitution, for example, tells us that: “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”
But international law is also needed in the interpretation of existing law. That much is clear from section 233 which provides that: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alter
Also, the interpretation clause in the Bill of Rights, section 39(1)(b), instructs that: “When interpreting the Bill of Rights, a court, tribunal or forum must consider international law.”
Generally speaking, therefore, international law is important not only for pure international law matters, ie. those that relate to relations between states and the governments of those states – air and sea traffic, fishing zones, international trade, extradition, refugees, etc. – but also when it comes to giving meaningful content to certain aspects of our own domestic laws.
For the purposes of interpreting our own Constitution and Bill of Rights, it seems as though all established rules of customary international law are relevant. It also seems as though all conventions and human rights treaties would similarly be relevant notwithstanding issues of South Africa’s ratification or failure to ratify them. When it comes to interpreting legislation, however, only international law that is binding on South Africa is relevant. That being said, South Africa is currently a party to most of the leading human rights instruments which is proof of the state’s commitment to the values contained therein, such as: the International Covenant on Civil and Political Rights (ratified in 1998); the Covenant on Economic, Social and Cultural Rights (signed in 1994 but yet to be ratified); the International Convention on the Elimination of All Forms of Racial Discrimination (ratified in 1998); the Convention on the Elimination of All Forms of Discrimination Against Women (ratified in 1995); the Convention on the Rights of the Child (ratified in 1995); and the Torture Convention (ratified in 1998).
It is in the area of human rights that the impact of international law is probably most prevalent. That is because of the commitment that our Constitution makes to ensuring that all law in South Africa is compliant with the values that underlie the Bill of Rights. These values, a product of natural law, are essentially the same values that flow through international human rights law. We see this in cases involving police brutality, torture, and the denial of access to justice because, in these types of situations, there is a wealth of human rights treaties and conventions that can be consulted. There is also a very resourceful and developed body of human rights jurisprudence which has emerged from various international law tribunals such as the European Court of Human Rights, the International Court of Justice, the Inter-American Court of Human Rights, and other ad hoc committees and courts. This vast body of international law can usefully be applied to give meaning and substance to our own law.