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5 th International Conference of Chief Justices of the WorldAddress byHon’ble Mr Justice Peter S. ShivuteChief Justice of the Republic of NamibiaIn many legal orders, in the judgments of the Courts, and in the text of many modern dayconstitutions, including Namibia’s, one notices an encouraging trend towards the embracingof international law.Why this may be the case, that sovereign states (particularly modern states) have movedtowards an ‘internationalist trend’ in their constitutional expressions is perhaps explainedby the international human rights discourse and the concerted approach of the nations ofthe world in resolving global problems and dealing with matters of economic integration.International law has come a long way to where it finds itself today. The traditional sources,treaties, custom, and general principles of law, nowadays certainly require amplificationby resolutions, declarations of international organizations and some persuasive codes of conduct and as such, one is tointerpret Article 38(1) of the Statute of the International Court of Justice to reflect the sources of international law that wereavailable at the time. With a globalized perspective to international matters, the theme for this conference is therefore apt inrecognizing judicial activism and urging a move-away from the positivist hard law and normative soft law paradigm of legalthinking which afflicts many a lawyer’s mind, if we are to fully encapsulate today’s international legal order.However, I must post a caveat and observe caution. Not all rules of practice or action at the international level can rise tothe level of their applicability to all and find enforceability by national courts. As has been the case in the past, my view isthat for international law to be recognized in the first place, and enforceable thereafter, it needs to have very strongfoundations to be acceptable to all. It is possible, as has been the case before, that such may become acceptable to all, butwith variations for differences of application across the board.Yet thus far, the crystallization of certain principles of international law to universal acceptability and thereafter enforcementhas done well to our jurisprudences in acting as fertile supplements to domestic law. This cross-pollination of legal dogmaoccurs quite vigorously notwithstanding the criticism of the courts for the so called ‘judicial timidity’. This criticism contendsthat courts interpret their national constitutional provisions narrowly where they import international law into the domesticlegal systems; further that courts will interpret international rules in fashion that does not upset governmental interests; andthat courts shield behind ‘avoidance’ doctrines in avoiding judicial review of government conduct and action.The tricky part arises where a given state refuses to sign, accede or ratify an international treaty/convention, for instance,the 1989 Convention on the Rights of the Child, which in my view is likely to, later on by widespread applicability, ascendto universal acceptability. Such a state may very well have consistently objected to the Convention’s provisions, yet it maybe argued, that dominant public opinion, internal and external, may bind the conscience of the state to feel obliged to upholdsuch an instrument.Hon’ble Mr Justice Peter S. Shivute,Chief Justice of the Republic ofNamibia being garlandedHon'ble Mr Justice P S Shivute, ChiefJustice, Supreme Court of Nambiaaddressing the ConferenceA great deal of interpretation will be generated in determining applicability based on theincorporation and transformation clauses in the national constitution, for as long as statesovereignty exists. Ultimately, I submit that the very key to acceptable and applicableinternational norms, lies in the political will of the custodians of the electoral confidenceto determine the destiny of the peoples of the world.This may be a weakness and a strength altogether, as political considerations aresusceptible to manipulation in the interests of retention of political mandate or otherwise,including fear of reprisal. A case in point is the debate surrounding the InternationalCriminal Court in many of the world’s capitals. On the other hand, in-as-much as electoralsystems allow for representation, the law makers may very well spurn sympathy towards--23--