International Law overrides the South African constitution for group self-determination

There exists a category of international law so fundamental that no country can opt out of it. These are called jus cogens norms, which means peremptory norms of general international law. The International Law Commission has confirmed that these norms exist above the domestic laws of any individual state, including national constitutions.

What are these overriding norms?

The Commission has compiled an annex draft, listing the core norms that carry this supreme status. They are:

• The prohibition of aggression
• The prohibition of genocide
• The prohibition of crimes against humanity
• The basic rules of international humanitarian law
• The prohibition of racial discrimination and apartheid
• The prohibition of slavery
• The prohibition of torture
• The right of self determination

Self-determination as a Peremptory Norm

The right of self determination sits on this list. The Commission has described this right as having a peremptory character. This means it is not simply a principle that states are encouraged to follow. It is a binding rule that overrides conflicting domestic law.

The Commission has been careful in how it words this norm. It uses the formulation “the right of self determination” though it has at times also referred to it as “the right to self determination.” Either way, the substance remains the same. It is a hard rule of international law.

The list is not exhaustive

Importantly, the Commission has made clear that this list does not cover every possible peremptory norm. It does not purport to capture all jus cogens norms that currently exist or that may emerge in the future. It also does not reflect every norm the Commission has previously recognised as having a peremptory character in the course of its work.

For example, in earlier work on the law of treaties, the Commission also pointed to the prohibition of piracy and the sovereign equality of states as fundamental principles. The annex is therefore a floor, not a ceiling.

No hierarchy among the norms

One further point deserves attention. The Commission states clearly that the norms in the annex are presented in no particular order. Their order does not signify any hierarchy among them. The right of self determination therefore stands equal to every other norm on the list, including the prohibition of genocide and the prohibition of torture.

When a domestic constitution, including the South African Constitution, contains provisions that conflict with the right of self determination as a peremptory norm of general international law, international law prevails. This is not a political argument. It is the formal position of the International Law Commission as set out in its report on the work of its seventy first session.

The right of self determination is not a right that any government can take away by passing a law or drafting a constitution. It belongs to the people, and it is protected by the highest tier of international law that exists.