Abstract:
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.
