Abstract
This paper examines whether the legitimate assertion of self-determination by a qualifying sub-national community is compatible with the continued unitary character of the South African state. It argues that the right to self-determination carries the status of a peremptory norm (jus cogens) in international law and has been domesticated into South African law, and that this status qualifies the Constitution's own supremacy rather than being subordinate to it. The paper distinguishes between power held by right, which the state cannot withdraw without consent, and power held by grace and favour, which it can, and argues that a legitimate assertion converts a community's position from the latter to the former. It is not the assertion itself but the resulting de facto redistribution of power — whether through state accommodation or unilateral action following unlawful refusal — that ends the state's unitary character. This claim is tested against two South African applications, addressing the territorial and cultural forms self-determination may take: the devolution of policing powers to the Western Cape, and Afrikaner control of single-medium Afrikaans schools as cultural institutions. A postscript chapter extends the analysis, at a lower evidentiary register, to fiscal autonomy. The paper concludes that where a community's claim meets the legal threshold of legitimacy, the state's obligation to accommodate it is a matter of legal duty rather than political discretion.
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http://dx.doi.org/10.2139/ssrn.7459503
External references
ISBN: 978-1-0483-7192-5
DOI: 10.2139/ssrn.7459503
