oa Constitutional Court Review - Three-level games : thoughts on and international law

Volume 4, Issue 1
  • ISSN : 2073-6215



This case comment considers certain specific effects of courts' decisions on national politics and in international political arenas. As we shall see, the Constitutional Court in upset the accepted separation of powers applecart in the domain of international political dynamics. Put pithily, the decision brought the courts more pervasively into a playing field ordinarily the domain of politicians and the political branches.

However, in the commentary below the focus is not upon whether this incursion is good or bad in normative terms. The objective here is descriptive in nature. I analyse certain consequences of in the context of existing dynamics between political negotiations and municipal law-making in South Africa in order to better understand what is at stake, strategically, when certain issues pertaining to international agreements are in play. I shall contend that the majority's approach in is a new development in regard to the way in which courts in South Africa approach the interpretive import and effect of international law. Whilst deferring analysis of certain questionable features of the judgment for another day, this comment emphasises the extent to which the courts in South Africa have emerged as strategic actors with respect to international political decision-making.

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