by Des Palm, CapeXit – 7 July 2020
The right to Independence according to the South African Constitution and South African Law has been discussed in our last article, but how does this tie in with International Law?
Self-determination is a force of powerful magnitude, a philosophical stance, a moral value, a social movement, a potent ideology, that also may be expressed, in one of its many guises, as a legal right in international law.
International Covenant on Civil and Political Rights Article 1
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
- The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
The government of RSA signed and ratified this covenant in January 2015, and it came into force on 12 April 2015.
**Ratification – the process by which a government formally approves the signing of an agreement. The state considers itself a party to the treaty after it has been ratified and is then bound under international law.
African Charter on Human and People’s Rights Article 20
- All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
- All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
The RSA government signed this Charter on 16 March 2004, and it was ratified on 17 December 2004.
The following can be found in the SA Constitution:
Section 231. International agreements
- The negotiating and signing of all international agreements are the responsibility of the national executive.
- An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
- An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
- Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
- The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.
The Montevideo Convention
This convention sets out the definition, rights, and duties of statehood. Most well-known is Article 1, which sets out the four criteria for statehood that have been recognized by international organizations as an accurate statement of customary international law:
The state as a person of international law should possess the following qualifications:
- a permanent population
- a defined territory
- the capacity to enter into relations with the other states.
The Vienna Protocols
Adopted by the World Conference on Human Rights in Vienna on 25 June 1993
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social, and cultural development.
Self-determination is a human right and states have the obligation to respect, protect and fulfil the right of self-determination.
CapeXit NPO has bound itself to actively promote and achieve the independence of the Western Cape within the prescribed rights of national and international law, the constitutional rights as contained within the South African constitution as well as other referred to articles and conventions as undersigned and ratified by South Africa and/or international articles and models acceptable to the international community.