Op-ed: UP Law Professor Dire Tladi: 'The Role of the Public in the Search for a Progressive International Law'

Posted on September 18, 2020

On Thursday, 10 September 2020,  I was honoured to present the 25th University of Pretoria Expert Lecture, which explored whether international law can address the most pressing concerns of society?

The pressing concerns of our society to which I referred included the fight against poverty and inequality, environmental degradation, in particular climate change and a range of security issues. In that lecture, I concluded that international law international law as it currently stood was ill-equipped to deal with most pressing concerns of the international society, mainly because the content and development of international law was determined by narrow national interests which often override the common interests, social values and solidarity.

While concluding that the current state of international law is inadequate to address the most pressing concerns of the international community, the lecture ended with words for modest hope:  “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 international forums.” The question asked by some attendees at the lecture and, subsequently, on social media was how the public can hold their governments for their actions internationally.

One way that national publics could hold their governments accountable for their conduct internationally is through court decisions. In Ireland and The Netherlands, for example, the courts have demanded stronger international action from the governments of those countries in curbing the problem of climate change. Under the Paris Agreement, each State is obliged to specify nationally determined targets to address climate change. The courts of The Netherlands and Ireland determined that that the targets specified by the executives of those countries were inadequate.

South Africa is no stranger to courts questioning the international conduct of the executive. Judgments of the Constitutional Court have, for example, declared decisions of the executive to ‘render’ persons to foreign countries where they were liable to face the death penalties, such as United States and Botswana invalid. South African courts have also overturned the decision of the executive not to arrest Al Bashir during his visit to South Africa in 2015, the decision of the executive to withdraw from the Rome Statute,  the decisions to participate in the SADC Summit to terminate the SADC Tribunal and the failure to prosecute Grace Mugabe during the SADC Summit.

While it may be tempting to place the responsibility for promoting a better and more progressive international law on courts, this solution is fraught with problems. The role of courts is not to make international law but to apply it. The assessment of international law by courts should be constrained by the methodology of international law. Permitting the courts to simply substitute their vision of morality and public policy raises questions of legitimacy. In most cases, judgments about foreign conduct involve policy choices which courts are ill-equipped to make. Thus, while courts can and should play some role in holding the State to account for its conduct in international forums, this role should be constrained by the methodology of international law and constitutional prescripts.  

Another possible way to hold governments accountable is through civil society organisations, which are often the forefront of criticising government actions in many areas of human endeavour.  But the source of national civil society organisations’ legitimacy is not always clear. Who funds these organisations? Where do they get their mandate? Who do they represent? To whom are they accountable? These are important questions if civil society organisations are going to be bestowed with the responsibility for holding governments accountable for their conduct on the international stage. Without a doubt, civil society organisations have an important role in holding governments accountable for actions on the international stage, including through advocacy and promoting education. But civil society organisations themselves cannot assume the responsibility of the people for holding their governments accountable for promoting a more progressive international law.         

The responsibility for holding governments accountable for their conduct on the international plane, and therefore for making international law, rests on the people and cannot be delegated, whether to courts or civil society organisations. Courts and civil society organisations can help, but ultimately only the people themselves can do carry out this responsibility. There is only one place that the public can hold their governments accountable – it is at the ballot boxes.

13 September 2020
Media coverage:


The public must hold governments to account for international actions


The Mercury

Ballot box a powerful tool on the global stage too


- Author Professor Dire Tladi, UP Law

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