Riaan Eksteen

Frederik W. de Klerk: Presidential Years in the International Arena

Political Science Quarterly, Nov 29, 2023

South Africa—Constitutional Court and Supreme Court of Appeal

The two Highest Courts have not shied away from issues involving foreign affairs. With a determin... more The two Highest Courts have not shied away from issues involving foreign affairs. With a determined approach to human rights issues, the two Courts’ rulings have already left an indelible reminder that the judiciary will not be kept from adjudicating cases that may have foreign-affairs implications. With their rulings they delivered an equally important message: the judiciary has an unmistakable role to play in foreign affairs. The Courts are determined to hold the executive to the principles enshrined in the Constitution; to keep the executive within constitutional limits; and to denounce presidential overreach as unconstitutional. This they have done without fear or favour. With the Courts’ determined approach to human rights issues, their rulings are clear that the exercise of all public power is subject to constitutional control. The influence their decisions have had on the country’s foreign affairs has been widely recognised and applauded within SA and internationally. The series of cases involving President Al-Bashir’s visit to SA and the government’s blatant disregard of the ICC’s warrant to arrest him led to exceptionally harsh judicial criticism of the executive. The response of the latter to withdraw from the ICC’s Rome Statute without first informing Parliament and obtaining approval for that decision resulted in another high-profile case in which the executive was rebuked. Amici curiae briefs play an important part in the legal system of SA. Especially significant has been their role in human rights litigation.

Die grondwetlike vereistes en prosesse om ’n president van die VSA uit sy amp te verwyder: Die geval van president Donald Trump tydens ’n politiek gelaaide atmosfeer

Tydskrif vir geesteswetenskappe, Sep 29, 2020

The constitutional requirements and processes to remove a president of the USA from office: The c... more The constitutional requirements and processes to remove a president of the USA from office: The case of president Donald Trump in a politically charged atmosphere Before news about the Covid-19 pandemic engulfed the world from February 2020, and the blanket media coverage of it in the USA in particular, one of the biggest news stories in the USA in recent times was the impeachment of president Trump. This event has prompted many to ask what it means and how it works. Impeachment is grave and momentous. This serious constitutional power is inherently a legal as well as a political process and has only been wielded by Congress on a few rare moments in US history. It is potentially a profoundly disruptive event and prudently consists of a two-step process that starts with the House of Representatives approving articles of impeachment (the formal accusations) against the president and their consequent referral to the Senate to conduct the trial and pronounce a ruling on the accusations. Each of the Chambers of Congress is entrusted with a specific but distinct responsibility in respect of impeachment that is prescribed in Article I of the Constitution. The House "shall have the sole Power of Impeachment" and the Senate "shall have the sole Power to try all Impeachments". "Impeachment" as the term is often used is thus not synonymous with both impeachment and removal from office. The House must first formulate and approve the indictment against the president; its power is not dependent on the Senate's. The latter's is "to try" the president on the approved charges. With the Chief Justice presiding the Senate must vote by a required two-thirds majority for indictment. Only then it has to decide how to deal with this violation of oath of office, which is not a criminal conviction in the traditional sense of law breaking. While resembling a court, it is, however, vital to understand that the Senate conducts a political trial, not a judicial trial. Once both these prescribed steps have been successfully completed can the Senate declare the president unfit to serve and remove him from office. It is the Senate that has the final say in any impeachment. The House plays no role in how the Senate must dispose of an impeached president. There were several challenging points with the case for impeaching president Trump. After three years, during which Democrats publicly and very vociferously accused him of a host of criminal acts-from bribery and extortion to campaign finance violations, obstruction of justice, collusion with Russia, conspiracy and even treason-the two articles of impeachment eventually adopted allege none of those things. Instead two non-criminal allegations-abuse of power and obstruction of Congress-were formulated as charges. Both those seemed farcical to Republicans. Politically, the substance of the articles was a major retreat by Democrats. They thereby effectively admitted that the president did not commit any statutory crimes. It also meant that it would be the first presidential impeachment in history in which no statutory crimes were even alleged. In this alone, president Trump claimed vindication even before the Senate commenced with his trial. Unfortunately, Democrats refused to involve the courts and wait for judicial review. House speaker Pelosi said that they could not be at the mercy of the courts! These kinds of statements seem to belie ulterior political motives ahead of a presidential election less than a year away. She exposed her political playbook when in early 2019 she had first announced that she saw no need for impeachment to proceed only to reverse her stand a few months later in September 2019 when she called on the House to proceed immediately with hearings to formulate articles of impeachment in order to have the entire process completed by the end of 2019. Urgency became the justification for expediting this traditionally weighty and lengthy process. However, once the articles had been passed by the House she held onto them for several weeks into

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Brexit se politieke en ekonomiese nagevolge en historiese realiteite

Tydskrif vir geesteswetenskappe, Jun 1, 2019

Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende ... more Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende hoedanighede in die Buitelandse Ministerie. Gedurende 1964-67 is hy in die Namibiese afdeling gemoeid met SA se betrokkenheid in die hofsaak by die Internasionale Geregshof in Den Haag; hy is ook agtereenvolgens hoof van die VN-en Namibiese afdeling (1973-76) en van Beplanning (1981-93). Hy dien vanaf 1968-1973 by die SA Ambassade in Washington, DC. Voorts is hy vir 12 jaar ambassadeur en hoof van die Missie by die VN in New York (1976-1981); Namibie (1990-1991); VN Geneve (1992-1995) en Turkye, insluitend Azerbaijan, Kyrgyzstan; Uzbekistan en Turkmenistan. Hierdie laasgenoemde aanstelling is deur President Mandela gemaak. Hy was ook Direkteur-generaal van die Suid-Afrikaanse Uitsaaidiens (SAUK) van 1983 tot 1988 en politieke ontleder op die Johannesburgse Aandele beurs (JSE) van 1988 tot 1990.

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Brexit: Volgende uitdagings vir 'n nuwe era

Tydskrif vir geesteswetenskappe, Mar 1, 2020

Toe die Statuut van Rome in 1957 onderteken is om die grondslag te lê vir wat later as die Europe... more Toe die Statuut van Rome in 1957 onderteken is om die grondslag te lê vir wat later as die Europese Unie (EU) sou ontwikkel, het die Verenigde Koninkryk (VK) daarna gehunker om gemeenplaas met ander lande in Europa te vind. Die proses het 16 jaar geduur voordat die VK in 1973 lid van die EU geword het en vir 47 jaar was al die VK se diplomatieke en ekonomiese strategieë in die Europese projek vasgevang voordat die VK dit aan die einde van Januarie 2020 onherroeplik vaarwel toegeroep het. Drie groot uitdagings lê vir eerste minister Boris Johnson (hierna afwisselend slegs Johnson) voor.

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Die uitwerking van binnelandse aangeleenthede op buitelandse beleid, met spesifieke verwysing na hedendaagse gebeure in die Verenigde State van Amerika

Tydskrif vir geesteswetenskappe, Sep 1, 2019

Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende ... more Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende hoedanighede in die Buitelandse Ministerie. Gedurende 1964-67 is hy in die Namibiese afdeling gemoeid met SA se betrokkenheid in die hofsaak by die Internasionale Geregshof in Den Haag; hy is ook agtereenvolgens hoof van die VN-en Namibiese afdeling (1973-76) en van Beplanning (1981-93). Hy dien vanaf 1968-1973 by die SA Ambassade in Washington, DC. Voorts is hy vir 12 jaar ambassadeur en hoof van die Missie by die VN in New York (1976-1981); Namibie (1990-1991); VN Geneve (1992-1995) en Turkye, insluitend Azerbaijan, Kyrgyzstan; Uzbekistan en Turkmenistan. Hierdie laasgenoemde aanstelling is deur President Mandela gemaak. Hy was ook Direkteur-generaal van die Suid-Afrikaanse Uitsaaidiens (SAUK) van 1983 tot 1988 en politieke ontleder op die Johannesburgse Aandele beurs (JSE) van 1988 tot 1990.

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Foreign Policy Analysis

T.M.C. Asser Press eBooks, 2019

This chapter concentrates on the lack of recognition of the judiciary’s role in foreign affairs—s... more This chapter concentrates on the lack of recognition of the judiciary’s role in foreign affairs—something that is still noticeable in Foreign Policy Analysis (FPA) literature. FPA has to move away from its state-centred orientation, which focuses on the two political branches of government, and accord due recognition to the judiciary and its increasing relevance and influence in foreign affairs. This concept of state-centrism has been FPA’s gravitational force for too long. National security also begged for more comprehensive understanding. Equally so does the dimension of domestic politics that is important for the analysis of foreign-policy decision making. Many judicial actions directly and indirectly affect foreign affairs. The point is not whether the judiciary has a role to play in foreign affairs, but rather how much influence it exerts. It has become a factor of influence and consequence in foreign affairs in its own right. It may appear small, but its significance is not. The relationship between the judiciary and foreign affairs has taken on added rather than diminished significance. The “repacking” of the FPA toolbox has identified new actors who now influence the policy-making process. The judiciary is certainly not an actor to the same extent and significance as the other two branches. However, this neglected actor does have an influence of consequence when it comes to foreign affairs. Its place in the toolbox is more than justified. The judiciary should therefore be given its due weight in the foreign-policy making process and be recognised for its role in foreign affairs.

Uitdagings en geleenthede in die bedryf van diplo-masie - Voor, tydens en ná Covid-19 Challenges and opportunities in practising diplomacy - Before, during and after Covid-19

Tydskrif vir geesteswetenskappe, 2022

OPSOMMING Die wêreld beleef onstuimige tye en nie eens diplomasie kon veranderinge ontsnap toe Co... more OPSOMMING Die wêreld beleef onstuimige tye en nie eens diplomasie kon veranderinge ontsnap toe Covid-19 die wêreld in Januarie 2020 getref het nie. Hedendaagse diplomasie verander teen 'n ongekende tempo en word gekenmerk deur nuwe rolspelers, nuwe vraagstukke en verantwoordelikhede en ook om diplomasie op digitale wyse te bedryf. Ou benaderings wat vir dekades, selfs eeue gegeld het, het drasties verander. Diplomasie kon nie verwag om steeds op sy eie voort te gaan asof niks gebeur het nie. Benadering tot en toepassing en bedryf van diplomasie is in die afgelope twee jaar tot in sy wese geraak. Die velerlei onderwerpe waaraan diplomate hul aandag moet skenk, neem steeds toe in omvang en intensiteit. Gevolglik kan alles nie in die bestek van 'n enkele artikel beskryf en uiteengesit word nie. Daarom is parameters gestel waarbinne bepaalde onderwerpe sinvol aangespreek word. Bykomend hiertoe word gepoog om die wesentlike probleme wat diplomate oor 'n wye veld in die gesig staar aan te spreek in die lig van die buitengewone omstandighede wat hulle moet hanteer. Die vraag is nou hoe diplomate vir hierdie nuwe wêreld in hul beroep voorberei en geskool word. Deesdae word van hulle verwag om internasionale adviseurs te wees en om nou meer as ooit tevore betrokke en instrumenteel in besluitnemingsprosesse van vrede en nasionale veiligheid te wees. Hierdie interdissiplinêre rol is 'n uitdagende een wat baie dinamika vereis. Met Covid-19 is die belangrikheid van multilaterale diplomasie herbevestig. Die digitale rewolusie stel nie net 'n magdom meer inligting beskikbaar nie, maar vereis spoedeisende besluitneming. Kennisbestuur is die doeltreffende hantering van inligting en hulpbronne binne 'n bepaalde organisasie. Kennisdiplomasie en die toepassing van 'n kennisbestuurstelsel is belangrik omdat dit die doeltreffendheid van 'n instelling se besluitnemingsvermoë verhoog. State is nie meer die enigste internasionale rolspelers in die steeds groeiende diplomatieke toneel nie. Die aantal rolspelers wat by buitelandse aangeleenthede betrokke is en diplomasie op een of ander wyse bedryf, het die afgelope dekades geweldig toegeneem. Hoe langer die pandemie aanhou, hoe meer verander die wêreld. Gepaardgaande met die snelontwikkelende metodes om data te verwerk en te versprei, het die kwessie van kuberveiligheid eksponensieel toegeneem. So is wetenskapdiplomasie, insluitende ruimtediplomasie, ook belangrik om van kennis te neem. Die uitdaging waarvoor diplomate te staan kom, is om hierdie veranderinge oordeelkundig en met nuwe vaardighede te bestuur. Trefwoorde: binnelandse beleid; buitelandse aangeleenthede; Covid-19; digitale diplomasie; digitale tegnologie; geopolitieke verhoudings; kennisbe-stuur; kennisdiplomasie; korporatiewe diplomasie; multilaterale diplo-masie, wetenskapdiplomasie ABSTRACT There is no doubt that the world is currently experiencing turbulent times. Not even diplomacy could escape change when Covid-19 hit the world in January 2020. Old approaches that have been in place for decades, even centuries, changed drastically, and diplomacy could not expect to continue as if nothing had happened. Approach to and application and operation of diplomacy has essentially been affected. In the era after Covid-19, countries and diplomats will still have to pay attention to these variables and will hardly be able to return to a previous era. Furthermore, domestic politics play an important role when considering strategic foreign policy decisions due to the threats that are expected or are already being carried out in connection with national security issues. Decisions on foreign affairs must therefore be evaluated in a certain domestic context because they develop mainly within national borders. In recent decades, the link between the two has become closer. The concepts of national interest, national security, domestic politics, and foreign policy have now become even more intertwined. Consequently, the question arises involuntarily: how are diplomats prepared and trained for this new world. Nowadays, diplomats are expected to be international advisers. Geopolitical views and applications have become more and more important, and the world is more interconnected than ever before. Understanding the global system is an inevitable requirement. The era requires people who can make difficult decisions and who will not worry about fine protocol rules being strictly enforced and adhered to anymore. These international advisers are now more than ever involved and instrumental in decision-making processes of peace and national security. This interdisciplinary role that these advisers must play is a challenging one that requires skilful dynamics. Contemporary diplomacy is changing at an unprecedented pace and is characterised by new role players, new issues, and new responsibilities. Multilateralism, which was the key to diplomacy since World War II has only gained momentum in the last 30 years, and with Covid-19, the…

European Court of Justice (Segment A)

T.M.C. Asser Press eBooks, 2019

Seldom before has the impact of domestic affairs on foreign affairs been so vividly demonstrated ... more Seldom before has the impact of domestic affairs on foreign affairs been so vividly demonstrated as in the case of the UK’s political divisions driving foreign-policy positions on Brexit and, in particular, PM May’s red line on the ECJ. Because of this fixation with the ECJ the UK views many of its position points through the ECJ-prism. On Brexit the EU stands united as never before. The Court remains the protector of all that the EU has created. In its efforts to structure its exit from and future relationship with the EU the UK is simply a divisive entity. When PM May’s position culminated in her Chequers proposals they caused internal political havoc. In turn the EU shot them down. She was forced to further adjust her political direction. The Draft Withdrawal Agreement and the Political Declaration that followed caused even greater political instability and continuous uncertainty for her. In Parliament the issue of the Irish border and the accompanying backstop became contentious in the extreme and overshadowed other issues, such as the role of the ECJ in the final analysis. The EU refused to re-open negotiations. Attention is paid to developments from the referendum in June 2016 up to the outcome of the parliamentary response in December 2018 and the eve of the final showdown in Parliament during the first months of 2019. The focus of all remained the same—to illustrate how intractable the issue of the ECJ has been for both parties and the vital role the Court has played in reaching a mutually acceptable outcome. For that reason special attention is devoted to the importance and significance of the ECJ’s interpretation of Article 50 of the TEU.

SCOTUS (Segment A)

T.M.C. Asser Press eBooks, 2019

The long-held SCOTUS position that it remains the ultimate expositor of the constitutional text h... more The long-held SCOTUS position that it remains the ultimate expositor of the constitutional text has influenced an array of important cases involving foreign affairs. In the two Zivotofsky cases the Court was faced with particularly thorny foreign policy issues. After 82 years SCOTUS declared specific dicta from Curtiss-Wright to be of no consequence and rejected them. During the past 15 years SCOTUS has systematically jettisoned its traditional foreign affairs functionalism in favour of formalism. A major jurisprudential shift was developing in SCOTUS’s approach to analysing and applying separation-of-powers questions. Gone are the days of presidential free reign in foreign affairs. In some cases judicial trust once placed in the executive has been replaced by distrust. The claim that the President possessed unbounded power in foreign affairs became a dead letter. The Court ensured that the executive continued to function within constitutional limits. Far from standing on the constitutional side lines, SCOTUS has for most of its history, by way of its rulings, contributed to the juridical debates within the foreign affairs establishment. Thus by pronouncing on issues impacting on foreign affairs, SCOTUS has not only fulfilled its constitutional mandate, but also reaffirmed its role in foreign affairs which by now has become distinguished and influential. Immigration into the USA has taken on a new meaning altogether after 9/11, especially since President Trump became President in 2017. The series of travel bans he ordered had important foreign policy and national security implications. They did not escape the attention of SCOTUS. The significance of amici curiae is reviewed.

SCOTUS (Segment B)

T.M.C. Asser Press eBooks, 2019

The cases discussed have one dimension in common: they all rebuked the President in one way or th... more The cases discussed have one dimension in common: they all rebuked the President in one way or the other; the issue in each had foreign policy as its origin; and each case also had implications for the foreign affairs of the USA. The Youngstown case was of tremendous significance. It did not overturn the ruling of Curtiss-Wright, but it rejected that decision's vision of unrestrained executive discretion and action. That in itself was a devastating rebuke to President Truman's overreach in the midst of the Korean War. The three death penalty cases came at some cost to the USA's international standing and brought the USA into conflict with the ICJ. The rebuke that the President suffered in each of these cases undercut the USA's standing in foreign affairs. The cluster of Detainee Cases was brought on by the war on terror after 9/11. They became hallmark decisions in defining the contours of the President's powers

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European Court of Justice (Segment B)

T.M.C. Asser Press eBooks, 2019

The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs

T.M.C. Asser Press eBooks, 2019

In this book, Dr. Riaan Eksteen persuasively demonstrates that the judiciary has incontrovertibly... more In this book, Dr. Riaan Eksteen persuasively demonstrates that the judiciary has incontrovertibly had an impact on the foreign policy behaviour of states, as well as on the policy-makers responsible for foreign policy decision-making. That makes this book a valuable and innovative contribution to foreign policy analysis. Foreign policy analysis is an eclectic field of inquiry, and scholars have sought to understand the role of a broad array of actors in a variety of foreign policy domains. There are numerous studies on the role of the executive and legislative branches of government, as well as quite a few studies that have sought to understand the role of leaders, advisors and the bureaucracy in foreign policy decision-making. However, studies on the role of the judiciary have been largely absent from the field. Although there are studies that discuss law or legal principles, these generally focus on the influence of international law and norms on domestic politics or foreign policy obligations. In other words, such studies focus on external influences on foreign policy. Dr. Eksteen's project asks a very different question: his work probes the role of the state's domestic judiciary-and specifically its high courtson its foreign policy. This sets Dr. Eksteen's study apart and makes this book so valuable. Scholarship in foreign policy analysis has been largely silent on the role of the judiciary. In the study of foreign policy, the judiciary has essentially been the forgotten branch of government. Dr. Eksteen's book begins to rectify this. He correctly argues that the role of the judiciary in foreign policy is largely uncharted terrain. As he begins to set out his course through this terrain, Dr. Eksteen proceeds to show why, how and to what effect the judiciary has played a role in foreign affairs. In doing so, he takes an important step in opening up a new area of inquiry. I fully expect that other scholars will seek to build on this study-this book-with their own inquiries into the role of the high courts in foreign-policy making. vii Preface This book is based on the thesis that the author successfully submitted to the University of Johannesburg, South Africa, in fulfilment of the requirements for the D Litt et Phil degree in Politics. The degree was awarded on 16 October 2018. The significance of this book lies in the novel contribution it makes to understanding the judiciary's role in foreign affairs based on a comprehensive case study approach. This created the opportunity to explore in depth the way the three judiciaries studied handled issues with implications for the foreign affairs of the USA, South Africa and the European Union and to prove that judiciaries deserve to be included as a state-related actor in foreign policy analysis (FPA). It is acknowledged that the subject of the judiciary's involvement and impact on foreign policy is under-researched, and thus, a greater interest has emerged in the influence of various domestic dynamics on foreign policy decision-making. In addition, the book identifies the judiciary as largely uncharted terrain in terms of its impact on foreign affairs. FPA typically does not address the impact of the judiciary on foreign affairs. Consequently, the field of judicial politics does not focus on the foreign policy impacts of court decisions in a systematic way. That identified vacuum is now filled with this book. It has been done in an authoritative and persuasive way. It is not only instructive, but also makes a contribution to libraries' holdings of publications on foreign affairs. As far as can be established, this is the first such comprehensive and systematic inquiry into the foreign policy role of the four courts. Important aspects relating to the US Constitution are put into a historical perspective. Similarly, facts about the two South African courts and the ECJ are conveyed in an orderly fashion-contributing to a better understanding of these courts, which are not that well known and understood. A wide range of non-governmental organisations involved in research and advocacy in areas such as human rights, foreign relations and national politics, and EU issues will also find the book a very useful source of information. Non-students in foreign affairs may well be educated and informed about the three court systems in a way that is not too legalised and easy to understand and appreciated. Even these readers will get an educational experience about issues that are still current and xi

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Historiese perspektief: Redes vir en gevolge van die betrokkenheid van groot moondhede in die Suezkanaal (Egipte), in besonder voor 1956 (Deel I)

Tydskrif vir Geesteswetenskappe

Historical perspective: Reasons for and consequences of the involvement by great powers in the Su... more Historical perspective: Reasons for and consequences of the involvement by great powers in the Suez Canal (Egypt), in particular before 1956 (Part I) This fi rst of three articles discusses the geopolitical importance of Egypt, the geostrategic location of the Isthmus of Suez and the channel itself. It also focuses on the construction of the canal and the imperatives to both control and retain possession of it. In the late 1700s and throughout the 19th century, up until mid-1956, European powers were interested in Egypt for various reasons, including the canal. Intermittent intrigues and confl ict occurred from time to time. Much was at stake, given the fact that this Isthmus and where the canal would later be constructed, has a particular strategic signifi cance in connecting Europe and the East and also the Indian Ocean. It became increasingly more important for Britain to control this link. France's involvement in Egypt began in 1798 with Napoleon Bonaparte and later with Ferdinand de Lesseps who was granted permission to build the Suez Canal. It was opened in 1869 and it revolutionised the shipment of goods between Britain and its colonies. Initially, Britain was opposed to the construction of the canal, but later acquired a share in it. Given the execution of his foreign policy, Germany's Otto von Bismarck showed little interest in Egypt. In 1882, British troops were deployed in Egypt to suppress a nationalist uprising. The troops stayed on until after World War I. The Entente Cordiale ended 40 years of bitter rivalry between Britain and France. It granted Britain a free hand in Egypt and France the same in Morocco. In 1922, Egypt became independent, but British forces still stayed on to protect the Suez Canal. After the Second World War, Britain increased its military presence in the vicinity of the Suez Canal considerably, but Egyptians were dissatisfi ed about that arrangement. Britain transferred few of the advantages derived from the use of the canal to Egypt. A series of failures by Britain in the application of its foreign policy fuelled the ever growing and multifaceted confl ict between Britain and Egypt. On 23 July 1952, King Farouk was dethroned in a military coup d'état in which the young Colonel Gamal Abdul Nasser played the leading role. After that Egypt was not the same anymore. Nasser established himself as an exceptional leader, not only in Egypt, but also internationally, and as one of the outcomes of his leadership, the canal was nationalised on 26 July 1956. The consequences stretched far and wide. The second article addresses such consequences in general, while the third focuses, in particular, on the effect(s) closure of the canal has had for South Africa. Attention is paid to the sea route around the Cape, as well as the closure of the canal in 1967, bearing in mind Britain's transference of its naval base, Simonstown to South Africa in the late 1950s.

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European Court of Justice (Segment A)

The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs, 2019

Seldom before has the impact of domestic affairs on foreign affairs been so vividly demonstrated ... more Seldom before has the impact of domestic affairs on foreign affairs been so vividly demonstrated as in the case of the UK’s political divisions driving foreign-policy positions on Brexit and, in particular, PM May’s red line on the ECJ. Because of this fixation with the ECJ the UK views many of its position points through the ECJ-prism. On Brexit the EU stands united as never before. The Court remains the protector of all that the EU has created. In its efforts to structure its exit from and future relationship with the EU the UK is simply a divisive entity. When PM May’s position culminated in her Chequers proposals they caused internal political havoc. In turn the EU shot them down. She was forced to further adjust her political direction. The Draft Withdrawal Agreement and the Political Declaration that followed caused even greater political instability and continuous uncertainty for her. In Parliament the issue of the Irish border and the accompanying backstop became contentious in the extreme and overshadowed other issues, such as the role of the ECJ in the final analysis. The EU refused to re-open negotiations. Attention is paid to developments from the referendum in June 2016 up to the outcome of the parliamentary response in December 2018 and the eve of the final showdown in Parliament during the first months of 2019. The focus of all remained the same—to illustrate how intractable the issue of the ECJ has been for both parties and the vital role the Court has played in reaching a mutually acceptable outcome. For that reason special attention is devoted to the importance and significance of the ECJ’s interpretation of Article 50 of the TEU.

Brexit se politieke en ekonomiese nagevolge en historiese realiteite

Tydskrif vir geesteswetenskappe, Jun 29, 2019

Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende ... more Afrika se Buitelandse Diens. Hy beklee in daardie tyd verskillende poste en dien in verskillende hoedanighede in die Buitelandse Ministerie. Gedurende 1964-67 is hy in die Namibiese afdeling gemoeid met SA se betrokkenheid in die hofsaak by die Internasionale Geregshof in Den Haag; hy is ook agtereenvolgens hoof van die VN-en Namibiese afdeling (1973-76) en van Beplanning (1981-93). Hy dien vanaf 1968-1973 by die SA Ambassade in Washington, DC. Voorts is hy vir 12 jaar ambassadeur en hoof van die Missie by die VN in New York (1976-1981); Namibie (1990-1991); VN Geneve (1992-1995) en Turkye, insluitend Azerbaijan, Kyrgyzstan; Uzbekistan en Turkmenistan. Hierdie laasgenoemde aanstelling is deur President Mandela gemaak. Hy was ook Direkteur-generaal van die Suid-Afrikaanse Uitsaaidiens (SAUK) van 1983 tot 1988 en politieke ontleder op die Johannesburgse Aandele beurs (JSE) van 1988 tot 1990.

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Die grondwetlike vereistes en prosesse om ’n president van die VSA uit sy amp te verwyder: Die geval van president Donald Trump tydens ’n politiek gelaaide atmosfeer

Tydskrif vir geesteswetenskappe, Sep 29, 2020

The constitutional requirements and processes to remove a president of the USA from office: The c... more The constitutional requirements and processes to remove a president of the USA from office: The case of president Donald Trump in a politically charged atmosphere Before news about the Covid-19 pandemic engulfed the world from February 2020, and the blanket media coverage of it in the USA in particular, one of the biggest news stories in the USA in recent times was the impeachment of president Trump. This event has prompted many to ask what it means and how it works. Impeachment is grave and momentous. This serious constitutional power is inherently a legal as well as a political process and has only been wielded by Congress on a few rare moments in US history. It is potentially a profoundly disruptive event and prudently consists of a two-step process that starts with the House of Representatives approving articles of impeachment (the formal accusations) against the president and their consequent referral to the Senate to conduct the trial and pronounce a ruling on the accusations. Each of the Chambers of Congress is entrusted with a specific but distinct responsibility in respect of impeachment that is prescribed in Article I of the Constitution. The House "shall have the sole Power of Impeachment" and the Senate "shall have the sole Power to try all Impeachments". "Impeachment" as the term is often used is thus not synonymous with both impeachment and removal from office. The House must first formulate and approve the indictment against the president; its power is not dependent on the Senate's. The latter's is "to try" the president on the approved charges. With the Chief Justice presiding the Senate must vote by a required two-thirds majority for indictment. Only then it has to decide how to deal with this violation of oath of office, which is not a criminal conviction in the traditional sense of law breaking. While resembling a court, it is, however, vital to understand that the Senate conducts a political trial, not a judicial trial. Once both these prescribed steps have been successfully completed can the Senate declare the president unfit to serve and remove him from office. It is the Senate that has the final say in any impeachment. The House plays no role in how the Senate must dispose of an impeached president. There were several challenging points with the case for impeaching president Trump. After three years, during which Democrats publicly and very vociferously accused him of a host of criminal acts-from bribery and extortion to campaign finance violations, obstruction of justice, collusion with Russia, conspiracy and even treason-the two articles of impeachment eventually adopted allege none of those things. Instead two non-criminal allegations-abuse of power and obstruction of Congress-were formulated as charges. Both those seemed farcical to Republicans. Politically, the substance of the articles was a major retreat by Democrats. They thereby effectively admitted that the president did not commit any statutory crimes. It also meant that it would be the first presidential impeachment in history in which no statutory crimes were even alleged. In this alone, president Trump claimed vindication even before the Senate commenced with his trial. Unfortunately, Democrats refused to involve the courts and wait for judicial review. House speaker Pelosi said that they could not be at the mercy of the courts! These kinds of statements seem to belie ulterior political motives ahead of a presidential election less than a year away. She exposed her political playbook when in early 2019 she had first announced that she saw no need for impeachment to proceed only to reverse her stand a few months later in September 2019 when she called on the House to proceed immediately with hearings to formulate articles of impeachment in order to have the entire process completed by the end of 2019. Urgency became the justification for expediting this traditionally weighty and lengthy process. However, once the articles had been passed by the House she held onto them for several weeks into

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Uitdagings en geleenthede in die bedryf van diplo-masie - Voor, tydens en ná Covid-19 Challenges and opportunities in practising diplomacy - Before, during and after Covid-19

Tydskrif vir geesteswetenskappe, 2022

OPSOMMING Die wêreld beleef onstuimige tye en nie eens diplomasie kon veranderinge ontsnap toe Co... more OPSOMMING Die wêreld beleef onstuimige tye en nie eens diplomasie kon veranderinge ontsnap toe Covid-19 die wêreld in Januarie 2020 getref het nie. Hedendaagse diplomasie verander teen 'n ongekende tempo en word gekenmerk deur nuwe rolspelers, nuwe vraagstukke en verantwoordelikhede en ook om diplomasie op digitale wyse te bedryf. Ou benaderings wat vir dekades, selfs eeue gegeld het, het drasties verander. Diplomasie kon nie verwag om steeds op sy eie voort te gaan asof niks gebeur het nie. Benadering tot en toepassing en bedryf van diplomasie is in die afgelope twee jaar tot in sy wese geraak. Die velerlei onderwerpe waaraan diplomate hul aandag moet skenk, neem steeds toe in omvang en intensiteit. Gevolglik kan alles nie in die bestek van 'n enkele artikel beskryf en uiteengesit word nie. Daarom is parameters gestel waarbinne bepaalde onderwerpe sinvol aangespreek word. Bykomend hiertoe word gepoog om die wesentlike probleme wat diplomate oor 'n wye veld in die gesig staar aan te spreek in die lig van die buitengewone omstandighede wat hulle moet hanteer. Die vraag is nou hoe diplomate vir hierdie nuwe wêreld in hul beroep voorberei en geskool word. Deesdae word van hulle verwag om internasionale adviseurs te wees en om nou meer as ooit tevore betrokke en instrumenteel in besluitnemingsprosesse van vrede en nasionale veiligheid te wees. Hierdie interdissiplinêre rol is 'n uitdagende een wat baie dinamika vereis. Met Covid-19 is die belangrikheid van multilaterale diplomasie herbevestig. Die digitale rewolusie stel nie net 'n magdom meer inligting beskikbaar nie, maar vereis spoedeisende besluitneming. Kennisbestuur is die doeltreffende hantering van inligting en hulpbronne binne 'n bepaalde organisasie. Kennisdiplomasie en die toepassing van 'n kennisbestuurstelsel is belangrik omdat dit die doeltreffendheid van 'n instelling se besluitnemingsvermoë verhoog. State is nie meer die enigste internasionale rolspelers in die steeds groeiende diplomatieke toneel nie. Die aantal rolspelers wat by buitelandse aangeleenthede betrokke is en diplomasie op een of ander wyse bedryf, het die afgelope dekades geweldig toegeneem. Hoe langer die pandemie aanhou, hoe meer verander die wêreld. Gepaardgaande met die snelontwikkelende metodes om data te verwerk en te versprei, het die kwessie van kuberveiligheid eksponensieel toegeneem. So is wetenskapdiplomasie, insluitende ruimtediplomasie, ook belangrik om van kennis te neem. Die uitdaging waarvoor diplomate te staan kom, is om hierdie veranderinge oordeelkundig en met nuwe vaardighede te bestuur. Trefwoorde: binnelandse beleid; buitelandse aangeleenthede; Covid-19; digitale diplomasie; digitale tegnologie; geopolitieke verhoudings; kennisbe-stuur; kennisdiplomasie; korporatiewe diplomasie; multilaterale diplo-masie, wetenskapdiplomasie ABSTRACT There is no doubt that the world is currently experiencing turbulent times. Not even diplomacy could escape change when Covid-19 hit the world in January 2020. Old approaches that have been in place for decades, even centuries, changed drastically, and diplomacy could not expect to continue as if nothing had happened. Approach to and application and operation of diplomacy has essentially been affected. In the era after Covid-19, countries and diplomats will still have to pay attention to these variables and will hardly be able to return to a previous era. Furthermore, domestic politics play an important role when considering strategic foreign policy decisions due to the threats that are expected or are already being carried out in connection with national security issues. Decisions on foreign affairs must therefore be evaluated in a certain domestic context because they develop mainly within national borders. In recent decades, the link between the two has become closer. The concepts of national interest, national security, domestic politics, and foreign policy have now become even more intertwined. Consequently, the question arises involuntarily: how are diplomats prepared and trained for this new world. Nowadays, diplomats are expected to be international advisers. Geopolitical views and applications have become more and more important, and the world is more interconnected than ever before. Understanding the global system is an inevitable requirement. The era requires people who can make difficult decisions and who will not worry about fine protocol rules being strictly enforced and adhered to anymore. These international advisers are now more than ever involved and instrumental in decision-making processes of peace and national security. This interdisciplinary role that these advisers must play is a challenging one that requires skilful dynamics. Contemporary diplomacy is changing at an unprecedented pace and is characterised by new role players, new issues, and new responsibilities. Multilateralism, which was the key to diplomacy since World War II has only gained momentum in the last 30 years, and with Covid-19, the…

South Africa—Constitutional Court and Supreme Court of Appeal

The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs, 2019

The two Highest Courts have not shied away from issues involving foreign affairs. With a determin... more The two Highest Courts have not shied away from issues involving foreign affairs. With a determined approach to human rights issues, the two Courts’ rulings have already left an indelible reminder that the judiciary will not be kept from adjudicating cases that may have foreign-affairs implications. With their rulings they delivered an equally important message: the judiciary has an unmistakable role to play in foreign affairs. The Courts are determined to hold the executive to the principles enshrined in the Constitution; to keep the executive within constitutional limits; and to denounce presidential overreach as unconstitutional. This they have done without fear or favour. With the Courts’ determined approach to human rights issues, their rulings are clear that the exercise of all public power is subject to constitutional control. The influence their decisions have had on the country’s foreign affairs has been widely recognised and applauded within SA and internationally. The ser...

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