The administration of International Law in national courts and the legitimacy of International Law

Abstract

Increasingly, national courts find themselves called upon to determine matters where UN lex specialis; regional supranational law; customary International Law and domestic law all appear relevant. Lower domestic court judges of developing post-colonial States may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. Such challenges have been rehearsed in a number of recent cases, notably the MOX plant case (2006),1 Kadi case (2008),2 and more recently in the Al Bashir case [2015]3before the North Guateng Division of the High Court of South Africa and later the Supreme Court of Appeal [2016].4 They raise the question of whether academic expert ‘friends of the Court’ should be called upon to illuminate contested International Law when domestic courts - particularly the lower courts; have to determine matters that are predominantly International Law based. The court, the claimants, and the respondents would all have the opportunity to cross-examine this expert friend of the Court. In practice this would not unreasonably lengthen/delay the proceedings. Yet the benefit of adopting this approach would be immeasurable in terms of ensuring both justice and the legitimacy of International Law. In the Al Bashir case [2015] the North Guateng Division of the High Court of South Africa rejected the Respondent government’s request to introduce a Professor of International Law to clarify the International Law defence it had in mind. However, the decision reached by that court in that particular case shows several defects that most probably would have been ameliorated by use of an expert academician acting as ‘a friend of the Court’. This article recommends that to ensure both justice and legitimacy of International Iaw, national courts - especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable International Law.