The Constitutional Court’s judgment in the SADC Tribunal case : international law continues to befuddle

Abstract

This article considers the Constitutional Court judgment in the SADC Tribunal judgment from the perspective of the methodology of international law. The judgment came to the conclusion that the President’s conduct in participating in the SADC’s decisions to remove its Tribunal’s jurisdiction over complaints from individuals was unlawful and unconstitutional. This conclusion was based on two international law propositions: first, on the proposition that the SADC decisions were in breach of international law; second, that the decisions of SADC can be imputed to the South African government. The article shows that the judgment does not apply the methodology of international law in arriving at these propositions. It argues that in keeping with South Africa’s reputation as a having an ‘international law-friendly’ framework, our pinnacle Court should do more to respect the methodology of international law.