The role of international law in the interpretation of socio-economic rights in South Africa

["Civil rights -- South Africa", "South Africa -- Constitution of the Republic of South Africa, 1996", "Constitutional law -- South Africa", "Social rights -- South Africa", "Economic rights -- South Africa", "International law -- South Africa", "Law -- Interpretation and construction"]

Petherbridge, Demichelle ; Rudman, Annika

Stellenbosch University

Others  :  https://scholar.sun.ac.za:443/bitstream/10019.1/96561/1/petherbridge_international_2015.pdf

瑞士|英语

来源: Stellenbosch University

【 摘 要 】

ENGLISH ABSTRACT: The 1993 and 1996 South African Constitutions protect socio-economic rights as justiciablerights. As legal guarantees, these rights have the potential to address the socio-economichardship experienced by many South Africans today. However, their contribution towards thiswill depend largely on how these rights are interpreted. The 1993 and 1996 Constitutionsoblige courts to consider international law when interpreting the Bill of Rights. Thisdissertation examines the relationship between this interpretative mandate and theConstitutional Court's adjudication of the socio-economic rights entrenched in the Bill ofRights. In particular, this dissertation investigates whether the Court has developed a clearmethodological approach to the consideration of international law in its interpretation of theBill of Rights, and how the Court has applied such an approach to the interpretation of socioeconomicrights.This dissertation shows that, while the Constitutional Court has developed amethodological approach to the consideration of international law when interpreting the Billof Rights, its approach remains embryonic. In particular, the Court has not fully developedclear analytic guidelines indicating how courts should consider international law sources. Inaddition, the Court has not fully explored the relevance of specific sources of internationallaw to the interpretative exercise. Nevertheless, this dissertation argues that themethodological approach developed thus far provides the Court with an important means ofengaging with international law in judicial reasoning, which can enrich the Court'sinterpretative process. Moreover, a detailed investigation into the Court's socio-economicjurisprudence reveals that the Court's consideration of international law is inconsistent andsporadic. However, the analysis also demonstrates that when the Court has consideredinternational law in its adjudication of socio-economic rights, it has done so in various waysand to various degrees. In addition, the analysis reveals how the Court's application of thereasonableness model of review, developed within the context of positive duties imposed bysocio-economic rights, limits a substantive consideration of international law in thedevelopment of the normative content of socio-economic rights. A key contribution of thisdissertation is the detailed analysis of the Court's methodological approach to the consideration of international law sources developed thus far, and the demonstration of howthis can be applied within the field of socio-economic rights. In addition, this dissertationidentifies relevant international human rights standards and adjudicative approachespertaining to socio-economic rights and illustrates how the Court can engage with these sources to support and enhance the development of South Africa's socio-economic rightsjurisprudence.