Farewell to the Rules-Based Order
As political analysts debate the reasons for Trump’s victory, one contributing factor is surely the utter failure of Biden’s Gaza policies. As the US has continued to fund an Israeli war of annihilation against Gaza, the democratic ticket became a hard sell for many who care about Palestinians. Yet, Gaza has also triggered a veritable renaissance of international litigation. With Gaza destroyed and Trump in the White House, this tension may have reached a terminal point. And yet, I argue, the ghost of a rule-based order lingers in our political imagination despite its inability to shape outcomes.
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South Africa v Israel: A Solomonic Decision as “Constructive Ambiguity”
In its wise Order of 26 January 2024, the ICJ managed to make a virtue out of a necessity: Israel was not prohibited from continuing its combat operations but was reminded of its strict compliance with international humanitarian law and its obligation to avoid genocide. At the same time, the ICJ reiterated the requirement to respect the most fundamental rights and the core of humanitarian law to all warring factions. Despite still essentially being a court for inter-state disputes – it put the individual, the human being, at the centre. Henceforth, the ICJ’s order of provisional measures is a Solomonic decision at its best and a further step towards the “humanization of international law”.
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Measuring with Double Legal Standards
Less than two hours after Israel had closed its pleadings, the German Government released a press statement, announcing its intent to intervene as a third party under Article 63 of the Statute of the ICJ (ICJ Statute). Therefore, it can be assumed that Germany did not take sufficient time to conduct a comprehensive assessment prior to its decision. At all costs, it sought to be perceived as being on Israel’s side. Germany’s decision may not appear startling given that it had previously intervened in both genocide proceedings against Russia (Ukraine v Russia case) and Myanmar (Rohingya case). However, in the latter case, Germany joined Gambia in upholding a purposive construction of Article II Genocide Convention, which would seem to present a serious obstacle to support Israel. Thus, this contribution investigates whether Germany, in its intervention in the "Genocide in the Gaza Strip case", would be able to abandon its previous submissions in the Rohingya case and instead adopt a more restrictive construction of the Article II Genocide Convention.
Continue reading >>A Promising Future?
The Choice on Termination of Pregnancy Act 92 of 1996 (Choice Act) provides the legislative framework that regulates access to abortion in South Africa. It is noted for its liberal stance on abortion and for this reason South Africa ‘serves as a global role model of reform in the area of abortion laws’. Despite its celebrated reproductive rights affirming approach, there are several on-ground issues that undermine the aims of the Act and the reproductive rights and health of those seeking abortion care. In this blog, I position the Choice Act within its historical and contemporary context which provides the necessary backdrop to demonstrate why the Act offers a ground-breaking approach to legislative regulation of abortion care. Thereafter, I explore some of the barriers to access and consider some key state efforts to overcome these issues, thus demonstrating a commitment to ensuring access to abortion care as part of the continuum of sexual and reproductive health care.
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A Seismic Shift
On 1 September 2022, the Eastern Cape High Court handed down its eagerly anticipated judgment in the case of Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (the Shell case). The judgment had the effect of setting aside an exploration right that would have enabled Shell to conduct seismic surveys off South Africa’s coastline, in its search for oil and gas reserves. The judgment has been hailed by social and environmental justice activists alike. Although the case was decided more narrowly on administrative law principles, I argue that the judgment holds greater significance in that it highlights the importance of civil society activism and the crucial role of the judiciary in upholding constitutionally protected social and environmental rights.
Continue reading >>No Expropriation without Compensation in South-Africa’s Constitution – for the Time Being
This week the Parliament of South Africa voted against amending section 25 of the Constitution to provide for “expropriation without compensation” after four years of contestations. But all is not lost. Land reform has been placed on the public agenda, and the state is under more pressure than ever to ensure that a successful land reform program delivers.
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An Ordinary Result for the Rule of Law
Late on Wednesday 7 July, former South African President Jacob Zuma turned himself in to police. He thus just about complied with the Constitutional Court’s judgment on 29 June, which found him in contempt of court and sentenced him to 15 months’ imprisonment. This is not a victory for the rule of law. It simply is the rule of law.
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COVID-19 in South Africa: A Year in Review
On 15 March 2020 with only 61 cases and 0 deaths recorded, President Ramaphosa quickly decided that swift action was required and declared a state of disaster. Despite this quick action, South Africa has recorded the highest number of cases in Africa. This post will consider whether its response has been legitimate, proportionate and subject to appropriate judicial oversight.
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“Race” and the Constitution: A South African perspective
For a South African constitutional lawyer, watching from afar, the current debate in Germany on the removal of the word “race” from section 3 of article 3 of the German Basic Law, is perplexing. In the South African context, a similar call would widely be viewed as a regressive step aimed at protecting white privilege and reinforcing the social and economic dominance of the white minority. The South African and German contexts and histories differ, and the word “race” might have different connotations in German than it has in English, but it may nevertheless be of interest to consider why the words “race”, “racial” and “non-racialism” are mentioned in several provisions of the South African Constitution.
Continue reading >>Open Secrets, Private Freedoms – The South African Constitutional Court Legalizes Marijuana Use in Private
Two weeks ago, the South African Constitutional Court legalized marijuana use under certain circumstances. Apart from its immediate impact, this ruling may signal shifts in the Court’s institutional self-conception.
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Fighting the Backlash – The South African High Court on the Suspension of the SADC Tribunal
Today, the South African Constitutional Court may have the last word on a case concerning South Africa's suspension of the Southern African Development Community Tribunal. On 1 March 2018, the South African High Court found that this foreign policy decision violated substantive human rights. Even though it is easy to criticize the judgment for its scarce reasoning, the decision entails intriguing ideas for building a more principled foreign relations law in the South African context.
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South Africa’s Withdrawal from the ICC: The High Court Judgment and its Limits
Domestic legal challenges to the South Africa government’s decision to withdraw from the ICC are underway, and while the first instalment has a distinctly Brexit flavor, it also foreshadows more substantive constitutional arguments to come.
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