Tutorial letter 201/1/2017 International Law LCP4801 Semester 1

Dear Student 1. INTRODUCTION This is the last tutorial letter for this semester. It contains commentary on the compulsory assignments for this semester and the October/November 2016 examination paper. You will also find a brief indication of what you can expect in the examination in May/June 2017. 2. FEEDBACK ON THE COMPULSORY ASSIGNMENTS ASSIGNMENT 1 (20 MARCH 2017) Discuss the role of judicial decisions and the teachings of the most highly qualified publicists as a source of international law. [25] These sources are described and provided for in article 38(1) of the Statute of the ICJ. In terms of that article, the court shall apply: (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law. Please take note of the two qualifiers: article 59 of the Statute, as well as the term ‘subsidiary means’. According to article 59, ICJ decisions bind only the parties involved and are binding only for that specific case. Therefore, the doctrine of stare decisis does not apply in international law. But as Dugard explains, “there is a natural tendency for the courts to follow their own previous decisions or the decisions of other international tribunals”. Both ICJ decisions and the decisions of other international tribunals are included in the definition. The ICJ, could also refer to domestic court decisions, if – as Botha argues – “an important point had been particularly thoroughly examined in a municipal context”. In turn, domestic courts, when deciding a matter, which involves international law, may rely on the judgments of international courts and tribunals. Thus, previous ICJ judgments are increasingly gaining prominence in the development and application of international law, although the court is not bound to follow such decisions. As explained above, the doctrine of precedent does not apply in international law and the specific reference to article 59 is a testament to that. The teachings of the most highly qualified publicists are also important insofar as they provide evidence of the content of international law rules, and in this regard Dugard compares their importance to that of the Roman-Dutch writers in South African law. However, he also explains that availability of new sources has diminished the necessity to rely on jurists’ views as often. Another difficulty here is the problem of determining who is ‘most highly qualified’ and such a determination can be very personal and subjective. In the study guide, Botha relates an amusing story of Rumpff CJ’s reference to Francois in Nduli v Minister of Justice 1978 1 SA 893 (A).