Exam (elaborations)
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
- Course
- Institution
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024 QUESTIONS WITH DETAILED ANSWERS
[Show more]
Seller
Follow
pablitoh11
Reviews received
Content preview
FUR2601 Assignment 2Semester 2 2024 - DUE 27
September 2024
[Company address]
,FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
Question 1
Describe The Role Of And How Extensively The Constitutional Court Used International
Law As Well As Foreign Law In The Interpretation Of The Rights In The Bill Of Rights.
(10 Marks)
The Constitutional Court of South Africa plays a crucial role in interpreting the Bill of
Rights, which forms part of the country’s Constitution. In its interpretive process, the
Court has frequently referenced international law and foreign law to ensure that its
rulings align with global human rights standards and comparative constitutional
practices. Here is a detailed discussion on this subject:
The Role of International Law
1. Binding and Non-Binding International Law: The Constitutional Court
distinguishes between binding international law (such as treaties that South
Africa has ratified) and non-binding international law (such as customary
international law and international human rights instruments that South Africa has
not ratified). Binding international law must be applied, while non-binding
international law should be considered when interpreting the Bill of Rights.
2. Section 39(1)(b) of the Constitution: This section explicitly mandates that when
interpreting the Bill of Rights, a court, tribunal, or forum must consider
international law. This directive ensures that South Africa's human rights
framework is harmonized with international standards.
, 3. Influence of International Human Rights Instruments: The Court often
references international human rights instruments, such as the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, and the African Charter on Human and Peoples' Rights, to interpret the
scope and application of rights within the Bill of Rights.
The Role of Foreign Law
1. Comparative Constitutional Law: Section 39(1)(c) of the Constitution states
that courts may consider foreign law when interpreting the Bill of Rights. This
provision encourages the Constitutional Court to look at how other jurisdictions,
particularly those with similar constitutional frameworks, have addressed similar
issues.
2. Persuasive Precedents: The Court uses foreign jurisprudence as a persuasive
tool to enrich its own interpretations. For example, it frequently refers to decisions
from jurisdictions with well-developed human rights jurisprudence, such as the
United States, Canada, Germany, and India.
Extent of Use
1. Case Law Examples:
o S v Makwanyane (1995): The Constitutional Court’s landmark decision to
abolish the death penalty relied heavily on international human rights
norms and comparative constitutional principles. The Court referred to
various international treaties and foreign judgments to underscore the right
to life and the prohibition against cruel and inhuman punishment.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller pablitoh11. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $2.83. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
75632 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now