The ‘Casserole’ Constitution: The South African Constitution and International Law
15 Pages Posted: 1 Jan 2020
Date Written: December 14, 2019
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: Suggested Citation