Analysis: Constitutional Aspects of Treaty Withdrawal — South Africa and the Rome Statute

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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.

Introduction

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.

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