The ‘Casserole’ Constitution: The South African Constitution and International Law

15 Pages Posted: 1 Jan 2020

See all articles by Penelope Andrews

Penelope Andrews

New York Law School; New York Law School

Date Written: December 14, 2019

Abstract

The transition from authoritarianism and apartheid to constitutional democracy in South Africa came at the end of a decades long global struggle to end apartheid. Arguably the global anti-apartheid movement was the most significant human rights movement of the late 20th century. Louis B. Sohn and Henry Richardson, both eminent international law scholars, have noted how the struggle against apartheid influenced and impacted the development of international law, especially then evolving international principles aimed at eliminating racism and apartheid. Indeed, with the passage of the International Convention on the Suppression and Punishment of the Crime of Apartheid in 1973, apartheid was declared a crime against humanity.

In this essay I reflect on the impact and the role of international law in the drafting of the South African constitution as well as in the jurisprudence of the Constitutional Court. I also address the challenges of incorporating international human rights law into the constitutional project, and in particular the possibilities for generating a vigorous democracy and wide respect for human rights through such incorporation. The central question that I raise is whether universality as a value, norm or consensus, as reflected as part of the international law corpus, is sufficient to impel compliance, especially at the local level.

Keywords: human rights, constitutional law

JEL Classification: K33, K30

Suggested Citation

Andrews, Penelope, The ‘Casserole’ Constitution: The South African Constitution and International Law (December 14, 2019). NYLS Legal Studies Research Paper No. 3503960. Available at SSRN: https://ssrn.com/abstract=3503960 or http://dx.doi.org/10.2139/ssrn.3503960

Penelope Andrews (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
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212-431-2351 (Phone)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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