| Law internationalization development,changed the face of human legal life,promoted the ethnic,national and regional laws of exchange and the fusion,prompting legal civilization produce qualitative leap,so law internationalization inevitably become one of the focus of the legal science scholar,along with the development of economic globalization and regional integration,The phenomenon of internationalization of law has become increasingly prominent.This is an important feature reflected in the development of modern law,the product of the continuous development and perfection of modern legal system,and the fruit of the political,economic,cultural and mutual communication and integration of all countries in the world.As time goes by and moves forward,the process of legal internationalization has been promoted to the traditional field of domestic public law,and the phenomenon of constitutional internationalization is emerging day by day.After The Second World War,all countries in the world generally formulated written constitutions after the war,and almost all stipulated the unconstitutional review system.The trend of constitutional internationalization is divided into two branches in the development:On the one hand,is the world in the constitution and judicial review activities and learn from each other,countries also began to learn from each other or judicial review is quoted foreign legal resources and decision,the court judge between exchanges and learning opportunities also gradually increased,and the countries of mistrust of the government,they are generally designed the system of separation of powers,Especially to improve the status and image of judicial power.A new constitution usually sets up a constitutional court or a general court that reviews the constitution to oversee parliament and the government.Nowadays,many countries in the world are moving towards the constitutional system of written constitution and judicial review.On the other hand is the constitutionalization of regional integration,one of the major events is the constitutionalization of European integration:In 1950,six European countries(France,West Germany,Italy,Belgium,Luxembourg and the Netherlands)established the European Coal and Steel Community.Seven years later,the European Coal and Steel Community adopted the Rome Convention to establish a single market among the six countries,and was renamed the European Economic Community.Most members and some non-members concluded the Schengen Agreement and opened their borders to each other.In 1993,the Maastricht Treaty renamed the European Economic Community as the European Union.Judicial use of foreign law is the product of the modern constitutionalism globalization:through all over the world has a dialogue between the constitutional jurisdiction of the high court judge,by citing each other and more and more direct interaction,have made it possible to dialogue,the internationalization of the constitution means that constitutional government is no longer the privilege of nation-state,but became a universal concept and standard.So the author thinks that the constitution internationalization is mainly refers to the impact of foreign law and international law on constitutional development,mainly reflected in the outside law and international law on the impact of national constitution,to push the bill of rights of the constitution and rights list of perfect effect,and,as a kind of explanatory resources,has been applied in constitutional interpretation.South Africa's 1996 Constitution is the result of the conflict and integration of common law,civil law and South Africa's customary law,and is the result of South Africa's comprehensive reference to the constitutions of other countries combined with its own national conditions,and is a typical hybrid law.South Africa's constitution prescribed in paragraph 1 of article 39 court in explanation can consider foreign law when the bill of rights,the rule in South Africa with the passage of the connection of foreign law and international law,thereby promoting on the basis of human dignity,equality and freedom,open the value of a democratic society,the"foreign law" whether can be used as a country's court case basis and reference to interpret the constitution,This question is of great significance in comparing constitutions.The title of this paper is a Study on the Operation of South Africa's Constitution in the Context of internationalization.Internationalization specifically means that South Africa's Constitution is influenced by international law and foreign law in the context of internationalization of law and constitution.This paper is divided into five chapters.The first chapter is the internationalization of law and constitution.This chapter discusses from three aspects:how to define the internationalization of law,and what is the relationship between it and the globalization of law,and the concept and manifestation of internationalization of constitution.Scholars hold different views on the concept of legal internationalization,and there are three representative views as follows:First,the so-called legal internationalization refers to the integration and mastery of laws of various countries in the process of communication and communication.Second,legal internationalization is the globalization of legal culture.Thirdly,the internationalization of law is the assimilation of law.There are many definitions of "legal globalization" in the legal circle.According to my personal understanding,legal globalization can be further divided into three categories:the first category,to define the meaning of legal globalization from the perspective of economic globalization with the background of legal practice of economic globalization.Second,from the perspective of "globalization" and"internationalization" the definition of legal globalization;Third,legal globalization is legal assimilation.Scholars interpret the concept of constitutional internationalization from different perspectives.Some scholars believe that constitutional internationalization refers to the gradual integration of constitutional systems of various countries in terms of their structure and the value of protecting human rights,and the trend of weakening the uniqueness of constitutions of various countries.Some scholars define the internationalization of constitution from the perspective of the influence of international human rights protection mechanism on domestic constitution.Some scholars believe that the internationalization of constitution refers to the globalization of the dissemination of constitutional views.Countries "absorb and infiltrate each other" in the field of human rights and constitution,forming transnational constitutional judicial interaction.The author thinks that the internationalization of constitution mainly refers to the influence of foreign law and international law on the development of constitution,which mainly reflects the influence of foreign law and international law on the formulation of constitutions of various countries,and the influence of promoting the formulation of constitutional bill of rights and the improvement of the list of rights.Chapter two,the international factors in the constitutional change of South Africa.The development of South Africa's constitution can be divided into three periods:the colonial period,the racist period and the current constitutional period.The three periods saw five constitutions,namely the South Africa Act 1909,the Constitution of the Republic of South Africa 1961,the Constitution of the Republic of South Africa 1983,the Interim Constitution of the Republic of South Africa 1993 and the Constitution of the Republic of South Africa 1996.This chapter describes the external factors of each constitution,that is,the influence of international factors,which are divided into the following five parts:1.The influence of the American Constitution on the Constitution of Colonial South Africa;2.Second,the influence of the British Constitution on the Constitution of South Africa during the racist period;Iii.Internationalization of racism and the constitution of the Republic of South Africa;Iv.General Assembly and OAU sanctions and amendments to the Constitution of the Republic of South Africa;V.Sanctions by the international community and the creation of the current Constitution of South Africa.Chapter three,the status and effectiveness of international law in South Africa.South Africa in 1993 before the interim constitution,regarding the status of international law in the republic of South Africa domestic and effectiveness is no clear stipulation,but affected by imperial power law and precedent and guidance,before the South African court will simply apply the principle of international law to handle the relevant cases,legal problems resulting from mainly involves the act of war,Although there was a doctrine in South Africa during this period that "international law forms part of South African law",South African courts would not apply international law in all cases.If international law conflicts with South African domestic law,the South African courts will take precedence over the rules of international law in applying domestic law.During the interim Constitution of the Republic of South Africa in 1993,the method of "incorporation" was adopted in the application of international law.As long as international law was approved by the Parliament of the Republic of South Africa,it could be directly applied in the Republic of South Africa without "transformation".The application of international law during the period of the final Constitution of the Republic of South Africa in 1996 has been gradually improved.As for the application of international law,the provisions of the provisional Constitution of 1993 have been inherited and further detailed,especially article 231(4)of the final Constitution stipulates:International agreements become the law of the Republic only when they are enacted into law by national legislation;The analysis of the application of international law in the interpretation of South Africa's constitution shows that the Constitutional Court of South Africa usually takes international law as a source of guiding and normative rules.Due to the highly abstract nature of international law precedents,it is not suitable for specific factual analysis and the determination of subtle differences in a specific domestic context.Chapter four,the influence of foreign law on the current Constitution of South Africa.The influence of foreign law on the current Constitution of South Africa is mainly reflected in five aspects:the pluralism of South African legal culture,the drafting process of constitution,the form of the state,the review system of constitutionality violation and the basic rights of citizens.For centuries,South Africa has been dominated by laws brought by European immigrants.First there is Romano-Dutch law,and then there is English common law.The two compete and interact with each other to form a unique hybrid legal system of South Africa.The actual negotiations on South Africa's current constitution went through two stages:the first produced an interim constitution,and the second produced the "final"(South Africa's current)constitution,The anc's constitutional council,a series of constitutional principles and guidelines as the main component of the anc's democratic thought,the anc's constitutional council to "people's democracy in eastern Europe" and "the constitutional evolution" in eastern Europe after world war ii was studied,and the committee delegation visited the Czech republic and in early 1987 the German democratic republic(GDR),The progress of the work of the Constitutional Committee is also in line with the new international situation,and the influence of international conventions can be seen in the content of the ANC's proposals.And foreign laws influenced the constitutional process in different ways,with some of the concepts and principles of the European legal system becoming part of the South African Constitution:the political parties involved in the process were assisted by formal and informal advisers,some of whom were foreigners.In terms of the form of state administration,the South Africa Act of 1909 stipulated that the British king was the Supreme Head of State of South Africa,and the parliamentary cabinet system of government was established in South Africa.The constitution of the Republic of South Africa in 1961 continued the basic principles and institutions set out in the South Africa Act of 1909,and the Constitution of the Republic of South Africa in 1983 inherited the British parliamentary cabinet system of government.Both the 1993 Interim Constitution of the Republic of South Africa and the 1996 Constitution of the Republic of South Africa stipulate that the National Assembly is the highest legislative body and the president is the highest executive head.The new Constitution establishes the independence of the judiciary and the final ruling status of the Constitutional Court,but the essence of the government is still the parliamentary cabinet system of "parliament is supreme".In terms of the form of state structure,mainly influenced by the United Kingdom,it adopted the form of state structure "with some color of federalism under the unitary system".The South Africa Act of 1909 established the unitary state system.The provisions of the Constitution of the Republic of South Africa in 1961 and the Constitution of the Republic of South Africa in 1983 on the form of state structure have continued with the provisions of the South Africa Act in 1909.The Preamble and relevant chapters of the Interim Constitution of the Republic of South Africa in 1993 clearly stated that:South Africa is a united sovereign State;All South Africans have the common citizenship of South Africa;The formal constitution of 1996 was drawn up on the basis of the Interim Constitution,which,like the Interim Constitution,clearly states that South Africa is a united sovereign democratic state and that all South Africans have common South African citizenship.In terms of the unconstitutional review system in South Africa,the judicial system during the racist period was mainly influenced by the UK.The judicial system in South Africa before the 1993 interim Constitution inherited the previous judicial system.The judicial system in that period was in essence to strengthen the rule of white people in South Africa and serve racism.Both the interim Constitution of 1993 and the final Constitution of 1996 established the fundamental status of the Constitutional Court of South Africa.The term and appointment,status and composition,nature and scope of competence of the judges of the Constitutional Court of South Africa were mainly influenced by Germany.The terms of the South African constitution the bill of rights draft is heavily influenced by other local experience,whether in the basic rights should be"horizontal" aspect is mainly influenced by German,in terms of the contents of the bill of rights,for example,when should take into account the terms property into the constitution,the constitution of Canada and India,South Africa In the debate over whether social and economic rights should be enshrined in a Bill of Rights,the ANC's Constitutional Committee examined the Namibian and Indian constitutions;There has also been considerable debate over whether provisions on industrial relations should include protections for workers' collective rights to form,join a union and strike,with technical experts analyzing cases in the United States,Canada,India,Japan and Germany;The protection of human dignity is influenced by the provisions of the German Basic Law;The limitation of basic rights was mainly influenced by Germany and Canada.Chapter five,the application of the invocation of foreign law in the interpretation of South Africa's Constitution.The phenomenon of invoking international law and foreign law existed in South Africa before the promulgation of the Provisional Constitution in 1993.After the provision of "reference to foreign case law" was established in the interim Constitution,the 1996 official Constitution changed the foreign case law of the interim Constitution into foreign law.Since then,the Constitutional Court has extensively invoked foreign law and international law in its judgments to solve the relevant problems of the constitution of the country.This chapter is divided into five sections:South Africa's constitutional court,citing the reason of the foreign law,method,scope,function and the existing disputes,of which each part use case to prove the point of view,the constitutional court precedents suggest that the foreign law as to explain the domestic non-binding but convincing source of constitutional rights is valuable,experiences and lessons from the South African constitutional court shows that Through widely quoted foreign law have the opportunity to deepen and enrich local jurisprudence,understanding and the understanding of foreign judgment can help provide information,explore and confirm the explanatory selection,the judge to determine root cause and analysis of relevant principles of foreign judgments,according to the unique constitutional text,national history and culture,to determine whether these principles apply and how to apply. |
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