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By Dr Caitlin Goss. Dr Goss is a Lecturer in Law at the TC Beirne School of Law at the University of Queensland, Australia. She completed her doctoral studies at the University of Oxford, where she was a Graduate Teaching Assistant in Public International Law, and she works on comparative constitutional law and international law.
In recent months, there has been much discussion in public law about whether the executive branch of government has the prerogative or power to withdraw from a treaty regime without legislative support. This question, answered in the negative in the case of R (Miller) v Secretary of State for Exiting the European Union in relation to ‘Brexit’, shares some parallels with the recent decision of the High Court of South Africa, in which the South African government’s purported withdrawal from the Rome Statute of the International Criminal Court was held to be invalid, and unconstitutional.
In response to the High Court’s decision, the government of South Africa has now revoked its notice of withdrawal. In this post, I summarise the judgment in Democratic Alliance v Minister for International Relations, the context in which it arose, and the issues that remain to be determined.
South Africa and the ICC: Context
South Africa was a founding member and early supporter of the ICC, but in recent years the position of the government has changed, in light of criticisms of the court as targeting African states, and in particular, due to the complex situation surrounding the arrest warrants issued by the International Criminal Court (‘ICC’) for Sudanese President Omar al-Bashir. South Africa is not the only state to consider withdrawing from the ICC in response to these issues; Burundi and Gambia both notified the Court of their withdrawal in late 2016, although Gambia has since revoked its withdrawal. Under the terms of art 127 of the Rome Statute, a state’s withdrawal from the Statute takes one year to become effective.
The case before the High Court
On 19 October 2016, the Minister of International Relations, on behalf of the government of South Africa, deposited notice of its withdrawal from the Rome Statute, with the Secretary-General of the United Nations. In the notice, the government stated that its withdrawal was the result of ‘conflicting obligation[s]’, namely the obligation to arrest Al Bashir under the terms of the ICC’s arrest warrant, and the duty to grant diplomatic immunity to Al Bashir, under both custom and treaty law.
This decision turned on a question of domestic constitutional law, rather than international law. The primary issue was whether ‘the national executive’s power to conclude international treaties…also includes the power to give notice of withdrawal from international treaties without parliamentary approval’ (at ). South Africa allocates the authority to negotiate and enter into treaties to its executive, while reserving the power to ratify and implement those treaties for the legislature. Under s 231 of the Constitution, the established procedure for the incorporation of a treaty into domestic law is as follows:
South Africa completed the first step on 17 July 1998 as one of the founding signatories of the Rome Statute, and then completed the second step on 27 November 2000, when it ratified the Statute. On 16 August 2002, South Africa passed the Implementation Act, which incorporated its obligations under the Rome Statute into domestic law.
As the High Court commented, ‘[t]here is no debate about the scheme of s 231 as far as treaty-making is concerned’; therefore the question that arose in this case was how the reverse process, which is not specifically provided for in the Constitution, must work. Through its withdrawal notice, the government purported to begin the undoing of South Africa’s treaty obligations by withdrawing its support from the treaty.
The argument advanced by the Government had two key parts. First, the government argued that just as executive action may commence the process of treaty-making, so may it begin the process of treaty withdrawal. In the absence of an explicit requirement for parliamentary withdrawal from a treaty, the government argued that the necessity for parliamentary approval should not ‘be lightly implied…into the Constitution’ (judgment at ). Secondly, the government argued that even if parliamentary approval is required for withdrawal from a treaty, that condition could be fulfilled after the executive’s notification of withdrawal; as the government announced its intention to table legislation repealing the Implementation Act shortly after issuing the withdrawal notice, then the issue would be resolved.
In rejecting these arguments, the Court emphasised the importance of a few key principles. Firstly, in relation to the separation of powers, while it remains the role of the executive to formulate policy in relation to foreign affairs, it is the role of the legislature to bind the state through treaty ratification, and therefore it is also the prerogative of the legislature to undo that binding through parliamentary resolution. Secondly, the court emphasised the rule of law and the principle of legality, which were defined together in an earlier decision of the Constitutional Court (Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council at –) as the principle that ‘all government action must comply with the law’, that is, that ‘the exercise of public power is only legitimate where lawful’. Thirdly, as a result of this purported, invalid exercise of power, the purported withdrawal is ‘invalid and has no effect in law’ (at ), and so a subsequent repeal of the Implementation Act could not remedy this defect. Moreover, the fact that the Minister of Justice asked parliament to consider the repeal bill ‘urgently’ undermines the role of parliament as ‘the principal legislative organ of the state’, with the court finding it ‘must be free to carry out its functions without interference’ (at ). Indeed, it is not certain that parliament would pass the legislation, especially after the possibility of public consultation, and parliamentary debate. If the executive’s withdrawal notice was effective at international law, and the bill then failed to pass, South Africa would be in the curious position of having legislation enforcing and implementing a treaty to which it was no longer a party (at –).
Following the decision of the UK Supreme Court in Miller, the UK government promptly introduced the European Union (Notification of Withdrawal) Bill, which will confer on the Prime Minister the power to notify the European Union of the UK’s intention to withdraw from the EU under art 50 of the Treaty of Lisbon.
If the South African government similarly proceeds with its plans to quit the ICC and repeal the Implementation Act, then several constitutional issues may arise. The High Court contemplated this possibility in its judgment, while finding it unnecessary to resolve the substantive question of whether South Africa’s withdrawal from the ICC would amount to a failure of the state’s constitutional obligation to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’ (at ; ). One factor identified by the South African Litigation Centre (‘SALC’) is that the Implementation Act provides not only for the implementation of obligations relating to the ICC, but also establishes the statutory basis for the exercise of universal jurisdiction before South African Courts. As such, a straight repeal of this legislation would not only sever South Africa’s connection with the ICC, but foreclose a possible basis for the exercise of jurisdiction over serious crimes. Whether this would amount to a failure to protect rights is another question, and one which has not been fully developed, either in the submissions of the Democratic Alliance before the High Court, or in the various submissions of the SALC.
One possible consequence of the decision, as Hannah Woolaver has argued, is that this decision ‘may result in the executive becoming less willing to join treaties, or encourage the South African government to take further isolationist steps’.
As an alternative to withdrawal, South Africa could seek to use its role as a regional leader to push for reform of the ICC; Max du Plessis has written about various reforms that South Africa could seek within the existing order of the ICC, including crucially for present purposes, to ‘push for a political resolution to the question of whether serving heads of state should have immunity’.
The case, and the ongoing issues that may arise if the parliament does pass legislation supporting withdrawal from the ICC, is of particular interest in the context of the South African Constitution, a text in which international law is given unusual prominence. Customary international law is law in South Africa unless it is ‘inconsistent with the Constitution or an Act of Parliament’ (s 232), and every court must, in interpreting legislation, ‘prefer any reasonable interpretation…that is consistent with international law…’ (s 233). The incorporation of international law in the Constitution (see also Article 39(1)(b) of the Bill of Rights) — and in its predecessor, the interim Constitution of the Republic of South Africa (Act 200 of 1993) — have formed a vital part of the rejection of the previous order.
As Jeremy Sarkin has detailed, during the apartheid era, South Africa had ‘little regard for international or comparative law’, and its implementation of apartheid, which is a crime against humanity (see also Article 7(1)(j) of the Rome Statute), made it a ‘pariah’ in the international community. Sarkin cites a 1989 Paper by the South African Law Commission, in which it stated that:
It cannot be envisaged that human rights norms as enshrined in international law can to any extent play a part — let alone a significant part — in the decision of the protection of group and individual rights in South Africa. Safety does not lie in the hope that our courts will apply the norms of international law.
The drafting of the Interim Constitution, and the current Constitution reflected a turn towards the international community, and also a new era of constitutional supremacy, rather than parliamentary supremacy. Article 4(1) of the Interim Constitution stated that the Constitution was the ‘supreme law of the Republic and any law or act inconsistent with its provisions shall…be of no force’; Dion Basson has described this as a ‘radical departure’ from the previous order.
John Dugard has described how the requirement for parliamentary involvement in treaty ratification and accession, which was created in the Interim Constitution, and modified into its current format in s 231(2), reflected the drafters’ motivations of ‘transparency and accountability — which had played little role in the Apartheid State’. However as Dugard also notes, these provisions bring with them additional bureaucratic issues, and in many cases delay the operation of treaties. South Africa’s possible withdrawal from the ICC presents a number of interesting and ongoing issues for the constitutional law framework of South Africa, and for its engagement with international law.