Identification Of International Law Research Articles

The Contribution of International Organizations to the Formation, Interpretation and Identification of International Law

Abstract In light of increased pressure on multilateral institutions, this article assesses the contribution of international organizations (IOs) to shaping international law. For that purpose, it analyses the recent work of the International Law Commission (ILC) regarding the role of IOs and its reception by States. The article argues that States do not perceive IOs as a relic of bygone times. Instead, the sceptical attitude of some States seems to be based primarily on a lack of conceptual clarity with regard to IO practice. Yet, a changing geopolitical landscape increases the pressure on lawyers to explain firstly, that the relevance of IO practice finds support in international law (and not only in favourable power relations), and secondly, that the law provides means to integrate a more plural international order within a common framework. On that basis, the article sketches possible approaches to four issues which were left open by the ILC.

Interpretation and international law in South African courts: The Supreme Court of Appeal and the Al Bashir saga

The South African Constitution is regarded as an international-law friendly constitution. Much has been written about the willingness of South African courts to refer to international law instruments when interpreting and applying South African law. Yet, the extent to which South African courts have applied recognised tools and methods for the identification and interpretation of international law has not similarly been considered. The recent case concerning South Africa’s decision not to arrest the President of Sudan, Al Bashir, highlights the importance of a proper approach to the interpretation and identification of international law by South African courts. In this case, the Supreme Court of Appeal had to consider the complex interrelationships between two treaties, namely, the AU South Africa host country agreement and the Rome Statute of the International Criminal Court, customary international law and a UN Security Council resolution. The objective of the article is not to determine the correctness or not of the decision. Rather, the article is aimed at assessing the Court’s approach to the methodological questions of interpretation and identification of international law. The article, therefore, evaluates whether the rules of interpretation as contained in the Vienna Convention on the Law of Treaties have been applied by the Court in searching for the meaning of the instruments under consideration. It also assesses whether the relationship between the various sources of international law at play in the Al Bashir matter is adequately considered.

‘General principles of law’, ‘soft’ law and the identification of international law

Treaties and custom are generally regarded as the major sources of international law. They derive their validity more or less directly from the consent of those subjects of the law which also possess the institutional authority to make law. The perceived limitations of the consensual nature of these two sources have resulted in doctrinal controversy concerning, inter alia, the existence of sources of international law which are not essentially consensual. This is the rationale for the inclusion of general principles of law recognised by civilised nations alongside treaties and customary international law in Article 38 of the Statute of the International Court of Justice, as one of the sources of international law to which the Court may refer. Similarly, the phenomenon of ‘soft’ international law is, by and large, a response to the failure to generate the full measure of State consent required for attributing full legal status to the ‘soft’ norms in question, often in relation to developing fields of international concern. It is often said that these non-consensual sources have an inferior status when compared with the consensual ones. The purpose of this paper is to consider critically the basis and the form of the differentiation between these two apparently non-consensual phenomena (i.e., ‘general principles’ and ‘soft’ law) on the one hand, and the paradigmatic (because consensual) types of international law (i.e., treaties and custom) on the other.