Document Type
Article
Publication Date
2010
ISSN
0272-5037
Publisher
Cambridge University Press
Language
en-US
Abstract
In recent years, commentators have questioned the extent to which African courts would rely upon foreign law or resort to rules of international law in their domestic decision making. I Comparatively, the African continent offers an interesting and important point of departure for exploring the influence of international law on domestic legal systems. While Africa boasts a number of new constitutional democracies, Africa is also home to a number of countries that remain burdened by colonial legacies and conflict.
It would not be unreasonable to expect international and foreign law to meet with considerable resistance or to be rejected as a remnant of an unjust and unpleasant colonial past, particularly given the political imperative in many post-colonial states to move beyond the past. In South Africa, however, not only have international and foreign legal sources been received and relied upon by the judiciary, but the judiciary has reshaped the substance of international law through reconciling indigenous and international normative concepts in revolutionary ways that advance human dignity.
My remarks consider the South African Constitutional Court's ("the Court") expansive use of international and foreign legal sources to inform understandings of substantive human rights. First, it explains the distinctive status granted to international law by the country's constitution. Next, it examines how international and foreign legal sources have been used as interpretive resources and reconciled with indigenous sources of normative authority by different justices on the country's Constitutional Court in selected landmark human rights cases. In conclusion, it explores the potential consequences of the Court's current approaches to incorporating international and foreign legal sources.
Recommended Citation
Erika George,
International Law and African Judiciaries: The Example of South Africa
,
in
104
American Society of International Law Proceedings
329
(2010).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3857
Comments
This panel was convened at 10:45 a.m., Friday, March 26, 2010, by its moderator, Angela Banks of William & Mary School of Law, who introduced the panelists: Erika George of S.J. Quinney College of Law; Obiora Okafor of Osgoode Hall Law School; and Jeremy Levitt of Florida A&M University College of Law.