The implementation of international law in Germany and South Africa , livre ebook
538
pages
English
Ebooks
2015
YouScribe est heureux de vous offrir cette publication
538
pages
English
Ebooks
2015
YouScribe est heureux de vous offrir cette publication
Publié par
Date de parution
01 janvier 2015
Nombre de lectures
2
EAN13
9781920538361
Langue
English
Poids de l'ouvrage
3 Mo
South Africa, the power house of the African continent, as well as Germany, Europe’s largest economic power, are faced with an intricate maze of international obligations, whether related to the United Nations, the World Trade Organization, the African Union or the European Union (EU), international human rights law, international humanitarian law, or any other sub-regime of international law. The two countries are in a different position when facing the implementation of this maze of obligations. South Africa is a developing economy that faces various capacity challenges which, at times, also impact the manner and extent to which it implements its international treaty obligations. Germany, ont the other hand, benefits from comparatively well-funded institutes of international law and a well-trained academic community, which have contributed to the successful implementation of much of international law. But as the relevant chapters in this volume show, the German case is not without its own complexities.As a result, an exchange of ideas and experiences pertaining to the implementation of international obligations can prove fruitful for both countries. Moreover, such an exchange could also serve as a useful point of departure for other countries in Southern Africa that face similar challenges in relation to implementation. The current book explores suitable techniques of implementation of international law, by comparing South Africa with Germany. After a general overview of the status of international law within Germany and South Africa respectively, it focuses on the implementation of international instruments pertaining to key sub-areas of international law in the two countries. These include the United Nations Charter (peace and security), the international law of the sea, international economic law, international environmental law, international human rights law, international criminal law, regional integration, and the status of international judicial decisions before domestic courts.About the editors:Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law in the Faculty of Law of the University of Pretoria.Holger Hestermeyer is Professor at King’s College London, UKRüdiger Wolfrum is professor of international law at the Heidelberg University Faculty of Law and director emeritus of the Heidelberg Max Planck Institute for Comparative Public Law and International Law.
Voir
Publié par
Date de parution
01 janvier 2015
Nombre de lectures
2
EAN13
9781920538361
Langue
English
Poids de l'ouvrage
3 Mo
The implementation of international law in Germany and South Africa
Erika de Wet University of Pretoria, South Africa & University of Bonn, Germany
Holger Hestermeyer King’s College London, UK
Rüdiger Wolfrum Max Planck Institute, Heidelberg, Germany
2015
The implementation of international law in Germany and South Africa
Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.
For more information on PULP, see www.pulp.up.ac.za
Printed and bound by: BusinessPrint, Pretoria
To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 pulp@up.ac.za www.pulp.up.ac.za
Cover: Yolanda Booyzen, Centre for Human Rights
ISBN: 978-1-920538-36-1
© 2015
A.
B.
C.
D.
E.
F.
TABLE OF CONTENTS
Affiliation of authors
Introduction Erika de Wet, Holger Hestermeyer & Rüdiger Wolfrum
v
vii
General overview The reception of international law in the German 12legal order: An introduction Rüdiger Wolfrum, Holger Hestermeyer & Silja Vöneky The reception of international law in the South African 2legal order: An introduction 23 Erika de Wet
The Charter of the United Nations The United Nations Charter and the German 3legal order 52 Mehrdad Payandeh The United Nations Charter and the South African 488legal order Dire Tladi
The International law of the sea The international law of the sea in Germany 5 Alexander Proelss The international law of the sea in South Africa 6 Patrick Vrancken
International economic law International economic law in Germany 7Leonie Hensgen International economic law in South Africa 8Engela Schlemmer
International environmental law International environmental law in Germany 9 Wolfgang Durner International environmental law in South Africa 10Lisa Chamberlain & Tumai Murombo
International human rights law International human rights law in Germany 11Nicola Wenzel International human rights law in South Africa 12Lilian Chenwi
iii
112
144
182
212
240
277
308
339
G.
H.
I.
International criminal law International criminal law in Germany 13Kirsten Schmalenbach International criminal law in South Africa 14Christopher Gevers
376
403
Regional integration The implementation of European Union law in 15Germany 444 Holger Hestermeyer The implementation of African Union law in 16468South Africa Bonolo Dinokopila
International judicial decisions The status and effect of international judicial 17496decisions in the German legal order Matthias Herdegen The status and effect of international judicial 18decisions in the South African legal order 519 Erika de Wet
iv
AFFILIATIONS OF AUTHORS
Chamberlain, Lisa is the Deputy Director at the Centre for Applied Legal Studies (CALS) and Senior Lecturer, School of Law, University of the Witwatersrand (Wits), Johannesburg, South Africa.
Chenwi, Lilian is an Associate Professor of International Law at the University of the Witwatersrand, Johannesburg, South Africa.
De Wet, Erika is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law at the Faculty of Law, University of Pretoria, South Africa. She is also Honorary Professor in the Faculty of Law, University of Bonn, Germany.
Dinokopila, Bonolo is a Senior Lecturer at the Department of Law of the University of Botswana as well as an attorney and partner of Dinokopila Lekgowe Attorneys, Gaborone, Botswana.
Durner, Wolfgang is the Director of the Bonn Institute for Water Law and a Professor of Public Law at Bonn University, Germany. Gevers, Christopher is a lecturer in the School of Law, University of KwaZulu-Natal, Durban, South Africa.Hensgen, Leonie is completing a Masters in development cooperation at the Swiss Federal Institute of Technology in Zurich (ETHZ) and is a project assistant with Helvetas Swiss Intercooperation in Nepal.
Herdegen, Matthias is a Professor and Director of the Institute of Public Law and Director at the Institute of Public International Law of the University of Bonn, Germany.
Hestermeyer, Holger is a Reader at the Dickson Poon School of Law at King’s College, London, United Kingdom.
Murombo, Tumai is Director and Associate Professor of Law, Mandela Institute, School of Law, University of the Witwatersrand, Johannesburg, South Africa. Payandeh, Mehrdad is a Junior Professor for Public Law and Public International Law at the Heinrich-Heine-University of Düsseldorf, Germany. Proelss, Alexander is Professor of Public Law, Public International Law and European law, at the University of Trier, Germany, as well as the Director of the Institute of Environmental and Technology Law of the University.
Schlemmer, Engela is a Professor in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg, South Africa.
Schmalenbach, Kirsten is a Professor of Public International Law and European Union Law at the Paris Lodron University Salzburg, Austria. She is also the Head of the Department of Public International Law, and the Vice Dean of the Law Faculty.
v
Tladi, Dire is a Fellow at the Institute of International and Comparative Law in Africa and Professor of International Law at the Faculty of Law, University of Pretoria. He is also a member of the United Nations International Law Commission.
Vöneky, Silja is Co-Director of the Institute for Public Law and Professor of Public International Law and Ethics of Law at the University of Freiburg, Germany.
Vrancken, Patrick is a Professor of law and incumbent of the South African Research Chair in the Law of the Sea and Development in Africa, funded by the Department of Science and Technology, managed by the National Research Foundation and hosted by the Nelson Mandela Metropolitan University in Port Elizabeth, South Africa.
Wenzel, Nicola works as legal officer for the German Federal Ministry of Justice,inter aliain the international human rights department.
Wolfrum, Rüdiger is Director emeritus of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany and Co-Director of the Max Planck Foundation for International Peace and the Rule of Law. He is also a judge and former president of the International Tribunal for the Law of the Sea and a member of the Institut de Droit International.
vi
INTRODUCTION
Erika de Wet, Holger Hestermeyer & Rüdiger Wolfrum
Both the developed and developing world are striving to create an effective and just international order. That order is directed at facilitating peaceful co-existence of nations and at cooperation to find and implement solutions to challenges that know no boundaries, including issues as diverse as international peace and security, climate change and economic cooperation to name but a few. Given the scope of these challenges and the need for international cooperation, compliance with international law has become a vital component of the rule of law.
Non-compliance with international law can have grave consequences, not only because of the risk of countermeasures by other states, but also and more importantly because of its impact on global cooperation, as well as the message it sends concerning the role of law as a framework for ordering society. As integral players of the world community as well as of regional organisations, South Africa, the power house of the African continent, as well as Germany, Europe’s largest economic power, are faced with an intricate maze of international obligations, whether related to the United Nations (UN), the World Trade Organization (WTO), the African Union (AU) or the European Union (EU), international human rights law, international humanitarian law, or any other sub-regime of international law.
The challenges involved in implementing international law in South Africa are revealed, for example, by the fact that a number of important international treaties which South Africa has ratified have remained unimplemented. For example, despite the fact that South Africa was a founding member of the UN, no statute has ever been adopted to facilitate domestic implementation of UN Security Council decisions in South Africa. As a result, South Africa has to implement every Security Council decision on an ad hoc basis, which can lead to great delays i n implementation or even non-implementation. Moreover, the absence of a domestic regulatory framework that guides the government on the
vii
viiiIntroduction
execution of Security Council resolutions aggravates the lack of clear direction in South Africa’s foreign policy, reflected in its ambivalent relationship towards the economic and military measures that were taken recently against Libya.
This discrepancy between South Africa’s formal commitment to international law and the implementation of that law is a direct result of scarce capacity in the field of international law and the manner in which it interacts with regional and domestic legal orders. South African universities after the adoption of the Constitution of the Republic of South Africa, 1996 have emphasised – for understandable reasons in the light of its history – the development of capacity in the area of human rights. An unintended but nonetheless very real result of this development was a neglect of other sub-areas of international law, as well as the inter-action between these sub-regimes and the domestic legal order – despite the prominent role attributed to international law in the Constitution.
The current German experience differs significantly from the South African one. When the Max Planck Institute for Comparative Public Law and International Law,one of the project partners of this proposal, was founded in 1924 (at the time, of course, as a Kaiser Wilhelm Institute), it was meant to compensate a perceived lack of knowledge in the field of international law in the German research community. Nowadays, comparatively well-funded institutes of international law and a well-trained academic community have ensured successful implementation of much of international law. But some difficulties remain. Thus, from the point of view of legal education, the fact that to this day international law is merely optional in German law schools is out of touch with the increasing impact of international law on almost all fields of law.
The European experience, ranging from a string of decisions of the Bundesverfassungsgerichtrelated to the European Union (EU), to a number of cases clarifying the relationship of the European human rights system to German law, has led to an intense discussion of how to implement the relevant regional obligations, a discussion that will become more complex when the EU accedes to the European human rights system. While the German case is not without its own complexities and pitfalls, it can serve as a valuable example for South Africa in trying to improve its record of implementation of international obligations. This in turn could also serve as a useful point of departure for other countries in the region that face similar challenges in relation to implementation. German scholars, on the other hand, should be aware of the recent developments particularly in South African constitutional law, making the South African Constitution one of the most internationally ‘open’ in the world.
The current book is the result of a workshop held on 16 and 17 May 2014, which was aimed at identifying suitable techniques of implementation of international law, by comparing South Africa with
Introduction ix
Germany. The workshop was organised in the context of a three year collaborative partnership between the Institute for International and Comparative Law in Africa in the Faculty of Law of the University of Pretoria and the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. This collaborative partnership was sponsored by the Alexander von Humboldt-Foundation and the workshop and book were also sponsored by the Konrad-Adenauer-Stiftung.
The book commences with a general introduction regarding the status of international law within Germany and South Africa respectively. The overviews introduce issues such asthe status of treaties and customary international law in the domestic legal order; the procedure for the ratification and incorporation of treaties; the relevance of soft law for the domestic order (for example, as guidelines for interpretation of domestic law by courts/the executive); as well as the role of courts in applying and enforcing international law.
The thematic sections focus in more depth on the status and implementation of international instruments pertaining to key sub-areas of international law in Germany and South Africa. These include the United Nations Charter (peace and security); the international law of the sea, international economic law, international environmental law, international human rights law and international criminal law; regional integration; and the status of international judicial decisions before domestic courts.
Each of these thematic sections consists of chapters devoted to the situation in Germany and South Africa respectively. In order to strengthen coherence between sections, all authors were encouraged to focus on similar questions in relation to their specific sub-areas. These include an identification of the relevant international law obligations (such as treaty, custom or soft law), as well as their development on a more general and regional specific level. Thereafter the chapters address the manner of incorporation, which isinter aliaby the constitutional determined dispensation of the two countries. In Germany the manner of incorporation is often also affected by the fact that certain international obligations enter the national legal order via the EU. Subsequently, the chapters devote attention to the role of national courts in applying and developing international law. The chapters conclude by assessing the main achievements by and challenges for Germany and South Africa in relation to the implementation of the international obligations in question. The editors have deliberately refrained from drawing any conclusions in a concluding chapter. Given the diversity of the sub-areas addressed and the complexity of each of the issues at stake, the drawing of conclusion at this stage seems premature. Instead the volume is intended to engender further debate and reflection on a topic which remains highly relevant and challenging in modern international law.
xIntroduction
The bibliography at the end of each chapter includes the publication details of books cited in the respective chapter, while detailed information on all other references are provided in the relevant footnotes. Cross-references between chapters are undertaken by an arrow (→) in the body of the text.
A: General overview
