Abstract

The application of treaties has become an ever more embedded feature of the South African courts’ jurisprudence. In light of that, this article offers a systematic descriptive assessment of the courts’ approach to the interpretation of treaties over the last halfdecade (2018–2023), so as to make critical proposals for charting the interpretative way forward. The article begins by considering how treaties ought to be interpreted, with particular regard to customary international law’s rules for interpretation, as codified in the Vienna Convention. The article then delineates the pertinent features of the courts’ approach to treaty interpretation by analysing the courts’ decisions over the last half-decade. This reveals that the courts’ approach to treaty interpretation has not generally been methodologically rigorous from an international-law perspective. Courts, with some notable exceptions, particularly in the most recent cases, tend to adopt a superficial approach that ignores international law’s interpretative rules and the materials they make applicable, notwithstanding the constitutional obligation to use these rules. Given these features or trends, the article makes recommendations to ensure that as South Africa starts its fourth decade of constitutionally enshrined integration of international law, treaty law’s interpretative neglect does not continue.