On 10 September 2020, Professor Dire Tladi, a professor of International law in the Department of Public Law at the University of Pretoria (UP) and a Fellow in the Institute for Comparative and International Law in the Faculty of Law (UP Law), rendered the 25^th UP Expert Lecture on ‘Can International law address the most pressing concerns of society? In search of solidarity’.

After the Programme Director Dean Elsabe Schoeman from UP Law opened the virtual event at 17:00 sharp, the Vice-chancellor of UP, Prof Tawana Kupe, welcomed all members of the audience, and introduced Tladi’s highly acclaimed abridged Curriculum Vitae to the audience.

Tladi said that the theme of his lecture ‘was inspired by several factors of varying importance and significance.’

‘The first, and by far the most important, significant and immediate of these factors is the COVID-19 pandemic under whose shadow the world has lived in the last few months. This pandemic has highlighted the plight of the most vulnerable in our society and the cracks in the purported solidarity often declared in the international legal scholarship.

Here I speak about a world in which some are able to engage in social distancing and are able to afford hand sanitiser – several bottles for the house, a small bottle for the car, a bottle for the office and maybe one for the handbag. It is a world in which we are able to share a laugh when one of us jokes “I have to sanitise my hand sanitiser”. Yet, in this same world, others do not have access to clean running water for washing their hands, let alone sanitiser to sanitise their sanitisers.

In this world in which we live, others can move to the virtual world to earn their living – indeed I must confess, that my own work has increased three-fold because, through the virtual world I am able to be in three meetings at the same time (and very often have had to be). The poor are told to stay at home, but yet they cannot ply their trade online – I leave unsaid the reasons, but we all know what they are. The authorities that demand that we work from home seem oblivious to the poverty of those without the possibility to ply their trade online. They seem oblivious to fact that Brian, who tends to your garden, cannot tend to your garden by using his laptop. That Dorah, cannot keep your house spick and span using zoom. And that not everyone who employs Brian and Dorah are willing to pay them for three months while they have not been coming to work.’

Next Tladi emphasised the importance of education and paradoxically referred to those ‘left behind by the benefits of globalisation – for those in the townships and villages scattered on this continent and other continents of the South, online learning is but a figment, a dream, a Unicorn, a fairy.’ 

The second and third factors that inspired the theme of the topic were a paper on whether populism has had a negative impact on international law; and a chapter on international law and the eradication of poverty.

In addition to poverty and inequality, he referred to ‘environmental degradation in various forms, which presents also one of the most pressing challenges facing us today’. 

Tladi continued by saying that there are also security issues, such as an increase in terrorism, the continued instability in the Middle East, easy access to weapons of mass destruction, including chemical weapons. All of these, he says, which also constitute threat to our society.

In his view, ‘These problems are such that they cannot be addressed by States individually. Indeed, as I believe, they cannot be addressed by States collectively through cooperation. To address them, requires more than just cooperation. To address these challenges, require a sense of solidarity. And if law is meant to be a vehicle to address these challenges, then surely it must embody this sense of solidarity.’

Tladi described the nature classical of international law, and concludes that ‘a system in which individual interests of States drive the content of law and in which the only real constraints on States flow from the ability to bargain -  is not based on any normative objectives, such as the pursuit of the common good, morality or values, but rather on the will of States, in particular the will of the most powerful States.  He concluded that classical ‘international law cannot be the vehicle for addressing the most pressing concerns facing our world today’  But then he continued by saying that ‘not everyone believes that that classical conception of international law best describes the status quo.  There has certainly been a trend in academic literature suggesting that the classical, state sovereignty-centred international law is giving way to a more value-based system of international law and that the idea of international law as a network of bilateralism is being replaced by a system based on community values and solidarity.’ 

Proving his point, Tladi made reference to German scholar and former Judge of the International Court of Justice, Bruno Simma, ‘our son, John Dugard’, and former Judge of the International Court of Justice from Sierra Leone, Abdul Koroma.  In short, in the words of Koroma, Tladi concluded that ‘solidarity should be more than a general notion of ‘neighbourliness’ – that 'solidarity establishes concrete duties on States to carry out certain measures for the common good’.

Under the heading ‘Honeymoon interrupted’, Tladi indicated that he does ‘not believe that this new conception of international law exists at all’. He noted that even those that believed that this new international law had arrived, often suggested that ‘populism’ had interrupted the “honeymoon of international law”. 

‘The basic argument, as I understand it, is that the honeymoon of the new vision of international law has been interrupted by the jolt of populism in the more powerful States’. He continued by saying that ‘Without fail, Donald Trump is presented as the posterchild for populisms’ attack on the new vision of international law’ and ‘… populism represents an attack on the new vision of international law which, but for the emergence of populism is said to be directed at the common challenges facing our world.’ Tladi concluded that ‘The populist movements are not a threat to international law, they are a reflection of it.’

Next Tladi dealt with international law’s responses to current global challenges, and firstly highlighted the staggering statistics on global poverty. He noted even in the face of these statistics, there was no obligation under international law to address poverty. He said that his ‘argument was not that international law promotes poverty – though I suspect that many hold this view. I am not able to substantiate that broader argument, and so I make a more modest argument, which is that international law as a system is agnostic towards poverty; the rules of international law will direct themselves to poverty.’

The second global challenge he highlighted was environmental protection. ‘There is no question that international law’s response to the problem of climate is one based on cooperation. It illustrates the limits of cooperation and the necessity for solidarity – acting beyond immediate self-interest. In the face of the threats posed by anthropogenic climate change, States opted for least effective options because of economic expediency and national interests.’ He also mentioned ‘security challenges and international law’s approach’ and said that ‘the unlawfulness or not of the nuclear weapons has been the subject of much analysis in scholarly writing.’

Tladi left the audience with this thought: ‘The fact that international law is itself ill-equipped to address the most pressing challenges facing the world does not mean that all is lost. First, international law remains a possible vehicle for positive action in specific areas of human endeavour. It just cannot be the answer because it remains constrained by geopolitics. Second, we should not forget that while States are abstract entities, they are ultimately accountable to real people. You want international law to change the world, hold your government accountable for the positions it adopts in the international forum.’