The Constitution is not the last word on self-determination

Self-determination is not a favour granted by the Constitution, but a right rooted in international law.

Written By: Phil Craig

South African constitutional orthodoxy rests on an assumption so widely held that it is rarely defended: that the Constitution is supreme, absolutely and in all things. From that premise follows a comfortable conclusion. South Africa is a unitary state, protected by territorial integrity and by parliamentary arithmetic that forecloses any realistic prospect of amendment, and it will remain one for as long as the national majority wishes.

For communities that find themselves permanently outvoted, such as the Western Cape on policing or Afrikaners on language policy in schools, this reality leaves only one option: to ask, and keep asking, for powers the centre may grant or withhold at will. The maths ensures that voting does not offer a viable remedy, a point 32 years of election results have emphatically established. These communities, however, like every other ‘people’, have a right to self-determination which voting alone does not satisfy.

My recently published monograph argues that South Africa’s constitutional orthodoxy is mistaken, not as a matter of political preference but as a matter of law. Its foundation is where the right to self-determination sits in the hierarchy of legal norms.

A right that begins in international law

Self-determination is not a concession the South African Constitution may choose to grant. It is a binding right originating in international law, which repeatedly affirms that all peoples have the right freely to determine their political status and pursue their own economic, social and cultural development.

South Africa does not dispute this. To the contrary, it has bound itself to the right by signing and ratifying three international treaties: the ICCPR, ICESCR and ACHPR. None of these treaties confine the right to self-determination to decolonisation, and neither do the courts. The Supreme Court of Canada’s Quebec judgment, and the UK Supreme Court’s application of that framework to Scotland, both treat self-determination as an element of functional democracy.

Who counts as a ‘people’, and therefore enjoys a right to self-determination, is a matter of some debate. But the criteria developed by experts on behalf of UNESCO in 1989, and which have been closely tracked by the African Commission, include features such as shared history, language, culture, territory or ideological affinity, together with a will to be recognised as a people.

Ideological affinity is particularly pertinent for the people of the Western Cape, whose voting record has consistently diverged from that of the national majority. Internal forms of self-determination, such as cultural or regional autonomy, are the default; external forms, including independence, are generally reserved for states unable or unwilling to accommodate internal self-determination through the doctrine of remedial secession.

Accommodated in South Africa, with or without section 235

Debate about self-determination in South Africa usually focuses on section 235, which permits recognition of the right to self-determination by cultural and language communities “determined by national legislation”. Critics often read this as a parliamentary veto. They are wrong.

Section 235 grew out of a specific 1994 settlement, the Accord on Afrikaner Self-Determination, and was never an attempt to codify the international right. Even on its own terms, the Constitutional Court’s Certification Judgment held that the reference to national legislation merely provides the mechanism for giving legal form to any agreement reached. Parliament is not the gatekeeper; it gives effect to what has been negotiated.

More importantly, the right does not depend on section 235 at all. Section 232 automatically domesticates customary international law, which includes the right to self-determination. Its nature is determined by, and continues to develop in, international law. It is neither defined nor frozen upon its constitutional reception.

Were South Africa, as the MK Party has proposed, to repeal section 235 tomorrow, every qualifying people in the country would continue to enjoy the right regardless.

Why the Constitution is not the last word

Many legal scholars point out that section 232 carries a proviso: customary international law only applies domestically when it is consistent with the Constitution or an Act of Parliament. For an ordinary rule, that is unremarkable. But self-determination is not an ordinary rule.

It is a peremptory norm, or jus cogens: a category reserved for rules so fundamental that no state may derogate from them by treaty, statute or constitution. The International Law Commission’s 2022 Draft Conclusions list it alongside the prohibitions on genocide, slavery and apartheid, and in 2024 the ICJ affirmed this categorisation.

Some argue that the ICJ’s opinion is confined to foreign occupation. The monograph addresses this challenge directly: internal and external self-determination are not two separate rights, but two potential applications of the same right.

Analogy is the clearest means of illustrating the nature of peremptory norms, or jus cogens. The prohibition of genocide shares jus cogens status with self-determination. It is self-evident that no state can license genocide by writing it into its constitution, passing enabling legislation or obtaining a favourable domestic judgment. Putting such rules beyond domestic reach is the entire purpose of peremptory norms.

In the narrow context of jus cogens rights, therefore, the Constitution is not supreme. International law is.

What this means in practice

This does not mean any group can demand anything. The right is bounded by the rights of others, and the form in which it is exercised is a matter for good-faith negotiation. The State cannot, however, simply ignore or deny a legitimate assertion of the right to self-determination.

This balancing of rights is best observed in the Supreme Court of Canada’s Quebec judgment, which was later heavily relied upon by the UK Supreme Court when ruling on Scotland. Neither judgment is binding on South Africa directly, but South African courts will be applying the same law to materially similar circumstances and will therefore be hard pressed to arrive at a different conclusion.

Policing in the Western Cape offers an excellent case study. The Western Cape has asked for years, without success, for policing functions to be assigned to the province under section 99, a request ministers may decline indefinitely. Framed as an assertion of self-determination, good-faith negotiation and accommodation in a mutually agreeable form become an entitlement.

Pertinently, policing autonomy is anything but exotic. Among many other examples, policing is devolved to Scotland and Northern Ireland, the Basque Country and Catalonia. It is South Africa’s single, centrally commanded force that is the outlier.

Similarly, we can consider Afrikaans single-medium schools, whose governing bodies’ language policies the Basic Education Laws Amendment Act now allows the State to override. Belgium vests control of education in its linguistic Communities, Swiss cantons set their own language of instruction, and South Tyrol’s German speakers secured schooling in their own language through a negotiated settlement.

Crucially, the State cannot simply refuse to negotiate without serious consequence. The 1970 Friendly Relations Declaration protects a state’s territorial integrity only while it respects the equal rights and self-determination of its peoples. That “safeguard clause” underpins the contested but increasingly accepted doctrine of remedial secession, under which a people unlawfully denied the right may, as a last resort, leave.

In Kosovo, the ICJ went further, finding that international law does not prohibit unilateral declarations of independence.

The logic runs a fortiori. If the most extreme remedy is not unlawful, far lesser steps cannot be more so. A community that, after its good-faith approaches have been refused, assumes policing or schooling functions the State has unlawfully withheld leaves the country’s borders and constitution intact.

Right, not favour

The orthodoxy tells permanently outvoted communities that their only recourse is to ask. The law says otherwise. A people that asserts its right to self-determination is not requesting a favour the centre can recall; it is claiming what the State is already bound to accommodate.

Used well, the right lets communities steer their own ship rather than remain passengers trapped on someone else’s, taking charge of their own safety and the schooling of their children, and diminishing the hold of a failing or destructive state over them.

The limit is not the law. It is whether those communities have the will to use it.

Read the full argument

The full argument, with its authorities and counter-arguments, is set out in my monograph, Why the Unitary Nature of the South African State Cannot Survive the Assertion of Self-Determination by a Sub-National Community (CIAG, 2026).

I welcome critique, particularly from those who disagree.

Phil Craig is the co-founder and spokesperson of the Cape Independence Advocacy Group (CIAG), a political advocacy organisation campaigning for greater self-determination and ultimately independence for the Western Cape. He has written extensively on self-determination, devolution, constitutional reform and Cape independence, and has represented the CIAG in public advocacy, political negotiations and international outreach.