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Apartheid on Trial: South West Africa and the International Court of Justice, 1960–66

2010; Routledge; Volume: 32; Issue: 4 Linguagem: Inglês

10.1080/07075332.2010.534610

1949-6540

Ryan Irwin,

South African History and Culture

Click to increase image sizeClick to decrease image size Notes 1 Relations with the United States (Secret), 13 Aug. 1965, Pretoria, A[rchives of the] S[outh] A[frican] M[inistry of] F[oreign] A[ffairs], Departement Van Buitelandse Sake (BTS) 1/33/3, Verhoudings met die Verenigde State var Amerika, Volume 1. 2 SA Racial Policy–Apartheid, 7 July 1965, ASAMFA, Minority Rule in Africa, BTS 1/99/1, Vol. 23. 3 For examples see S. Ali, Southern Africa (New York, 1987); G. Carter, American Policy and the Search for Justice and Reconciliation in South Africa (Racine WI, 1976); K. Danaher, In Whose Interest? (Washington DC, 1984); and W. Minter, King Soloman's Mines Revisited (New York, 1986), among many others. Although focused on politics rather than economics, T. Noer, Cold War and Black Liberation (Columbia, 1985) also fits in this category of scholarship. 4 Two foundational works in this genre are G. Fredrickson, White Supremacy (New York, 1981) and J. Cell, The Highest Stage of White Supremacy (New York, 1982). For examples of recent scholarship, see C. Anderson, Eyes Off the Prize (New York, 2003); T. Borstelmann, The Cold War and the Color Line (Cambridge, 2001); M. Dudziak, Cold War Civil Rights (Princeton, 2000); P. V. Eschen, Race Against Empire, (Ithaca, 1997); R. Massie, Loosing the Bonds (New York, 1997); J. Meriwether, Proudly We Can Be Africans (Chapel Hill, 2002); and B.G. Plummer, Rising Wind (Chapel Hill, 1996). 5 For examples see P. Bonner Kathorus: A History, (Cape Town, 2001); P. Delius, A Lion Amongst Cattle (Cape Town, 1997), B. Magubane, The Political Economy of Race and Class in South Africa (New York, 1979); S. M. Ndlovu, The Soweto Uprisings: Counter-Memories Of June 1976 (Pretoria, 1999); L. Ntsebeza, The Land Question in South Africa (Cape Town, 2007); R. M. Ralinala, Urban Apartheid and African Response (Cape Town, 2002). 6 M. Connelly, O.A. Westad, M. Lawrence, J. Suri, E. Manela, and M. Bradley have been particularly influential in promoting this shift toward ‘international’ history. However, their contributions build upon path-breaking work by scholars such as M. Hunt, A. Iriye, P. Kennedy, P. G. Lauren, and more recently T. Borstelmann, N. Cullather, and A. Rotter. For a recent historiographical overview see M. Hogan, ‘The “Next Big Thing”’, Diplomatic History, xxviii (2004), 1–21. 7 For a useful essay on this concept, see E. Rosenberg, ‘Considering Borders’, Explaining the History of American Foreign Relations, 2nd Edition, M. Hogan and T. Paterson (ed), (Cambridge, 2004). Many of the theoretical concepts underlying this project build on F. Cooper, Colonialism in Question (Los Angles, 2005); Tensions of Empire, F. Cooper and A. L. Stoler (ed), (Los Angles, 1997); D. Chakrabarty, Provincializing Europe (Princeton, 2001); and other historians of modern colonialism. 8 For accounts of the trial by legal scholars consult The South West Africa/Namibia Dispute, J. Dugard (ed), (Berkeley, 1973) and S. Soloman, South West Africa and the United Nations (Baltimore, 1972). 9 US foreign relations historians are only beginning to explore the concept of legitimacy, but an excellent literature exists among international relations (IR) theorists. For a useful overview, see I. Hurd, After Anarchy (Princeton, 2007) and A. Wendt, Social Theory of International Politics (Cambridge, 1999). 10 K. Kaunda, Zambia, Independence and Beyond: Speeches of Kenneth Kaunda (London, 1966), 64. 11 ‘Conference of Heads of State and Governments of Non-Aligned Countries’, Cairo, Egypt, 5–10 October 1964 (Cairo: Ministry of National Guidance, 1964), 149–54. 12 For an overview of early non-aligned politics, see P. Willetts, The Non-Aligned Movement (New York, 1978). See also C. Anderson, ‘International Conscience, Cold War and Apartheid’, Journal of World History, xix (2008) 297–325. 13 F. Cooper, Decolonization and African Society (Cambridge, 1996). 14 Yearbook of the United Nations (New York, 1961), 108–15. 15 E. Borgwardt, A New Deal for the World: America's Vision for Human Rights (Cambridge, 2005). 16 An impressive literature exists on the establishment and evolution of the International Court of Justice. Created in 1945 by the UN Charter, the Court was the successor to the Permanent Court of International Justice. It exists to settle legal disputes between member states of the United Nations and to give advisory opinions on legal questions forwarded by authorized international organs, agencies and the General Assembly. It is distinguished from the Permanent Court of International Justice because members of the United Nations are automatically subject to its jurisdiction. The ICJ is composed of 15 judges elected to nine-year terms by the UN General Assembly and the UN Security Council. Judges serve nine-year terms and may be re-elected for two additional terms. Elections take place every three years, with one-third of judges retiring each time, in order to ensure continuity within the court. The Court hears two types of cases: advisory cases and contentious cases. Advisory decisions are made upon request from the United Nations. Often complex in nature, these cases require the Court to independently elicit information from states and non-government organizations. Although the decisions are non-binding they are not without legal effect. The reasoning reflects the Court's authoritative view on the subject, and often provides guidance (and moral authority) for governments hoping to chart a ‘legitimate’ course of action. Contentious hearings produce binding rulings and are enforced by the Security Council. Only governments can participate. The case begins with the submission of the Applicant's Memorial, which typically outlines the basic charges of the case. The Respondent then has an opportunity to file a Counter-Memorial, which often rebuts the Applicant's allegations. Cases at the Court often unfold in two phases. First, the Applicants must establish that the ICJ has jurisdiction to rule on the merits of the case. Because of the tenuous relationship between sovereignty and international law, this is often the most contentious phase of the trial. If the Court approves its jurisdiction, the trial then proceeds to merits. During this phase, each side presents their legal rationale, offers expert witnesses, and forwards evidence to support its position. For a brief overview of the Court's organizational history, see A. Eyffinger, The International Court of Justice, 1946–1996 (Boston, 1996); N. Singh, The Role and Record of the International Court of Justice (Boston, 1989). 17 South Africa Stronger Than Ever, 12 August 1964, ASAMFA, BTS 1/99/1, SA Racial Policy – Apartheid, Vol. 25. 18 National Conference on South African Crisis and American Action, 24 March 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 1. 19 Namib Today, 15 Oct. 1965, Washington, DC, N[ational] A[rchives and] R[ecords] A[dministration II], R[ecord] G[roup] 59, Bureau of African Affairs, 1958–1966, Box 55. 20 E. Reddy, 2 Jan. 2009, personal correspondence. 21 Borgwardt, A New Deal for the World, 245. 22 E. Gross, The United Nations: Structure for Peace (New York, 1962), 5, 10. 23 Memo of Conversation, 15 June 1960, NARA, RG 59, Office of East and South African Affairs, 1951–1965, Box 3. 24 International Court of Justice, Pleadings, Oral Arguments and Documents, South West Africa Cases: Ethiopia and Liberia v. South Africa, Volume I (The Hague, 1962), 88–95. 25 ibid., 94. 26 ibid., 103. 27 ibid., 182. 28 ibid., 181–2. 29 ibid., 110–78. 30 ibid., 166. 31 For information on strategy, consult E. Gross, ‘The South West Africa Cases: On the Threshold of Decision’, Columbia Journal of Transnational Law, iii (1964), 19–25; ‘Legal and Political Strategies of the South West Africa Litigation’, Law in Transition Quarterly, iv (1967), 8–43. 32 ICJ Pleadings, South West Africa Case, Vol. I, 161–2. 33 Ryan M. Irwin ‘Wind of Change? White Redoubt and the Postcolonial Moment, 1960–1963’, Diplomatic History, xxxiii (2009) 897–926. 34 Legal analysis of Western Legal System, (no date), ASAMFA, BTS 1/18/15/3(1), Reactions to Judgment, (Correspondence), Vol. 11. 35 ICJ Pleadings, South West Africa Case, Vol. I, 298–360; Vol. VII, 29–156, 326–8, 376, 382. 36 ibid, Vol. I, 361–71, Vol. VII, 156–99. 37 ibid, VII, 248, (emphasis in original). 38 S. Slonim, South West Africa and the United Nations: An International Mandate in Dispute (Baltimore, 1971), 311. 39 Analysis of ICJ Judgment on Preliminary Objections of South West Africa Case, 23 Jan. 1962, NARA, RG 59, Office of East and South African Affairs, Box 3. 40 The Union Must Brace Up, 11 Feb. 1960, The Cape Times, Pretoria, N[ational] A[rchives of] S[outh] A[frica], BTS 22/2/20/9, Mr. H. Macmillan's Visit: Press Cuttings, Vol. 1. 41 S. Onslow, ‘A Question of Timing: South Africa and Rhodesian UDI 1964–1965’, Cold War History, v (2005). 42 Quoted in A. Hepple, Verwoerd (Baltimore, 1967), 192. 43 Statement by the South African Minister of External Affairs, the Hon. Eric H. Louw, NASA, BTS 4/1/13/3, Minister of External Affairs, Vol. 1 (emphasis in original). 44 Relations between South Africa and the United States: Summarized Balance-Sheet, ASAMFA, BTS 1/33/3, Verhoudings met die Verenigde State var Amerika, Vol. 1. 45 For an overview of these themes see Borstelmann, The Cold War and the Color Line; Dudziak, Cold War Civil Rights; Massie, Loosing the Bonds; and J. Meriwether, Proudly We Can Be Africans. 46 Report on ICJ Preliminary Decision NASA, 13 Jan. 1963, BTS 1/99/1, SA Racial Policy– Apartheid, Vol. 17. 47 ICJ Pleadings, South West Africa Case, Vo. II, 170–93; Vol. V, 85–99; Vol. VIII, 582–3. 48 ibid., Vol. II, 460. 49 Quoted in Slonim, 229. 50 ICJ Pleadings, South West Africa Case, Vol. II, 472. 51 For a useful recent exposition of South Africa's racial policies see E. Louw, The Rise, Fall, and Legacy of Apartheid (London, 2004), 1–27, 105–31. 52 ICJ Pleadings, South West Africa Case, Vol. II 410–1, 419–21; Vol. III 23–31, 38, 92–3, 243–5. 53 ibid., Vol. III, 105–7, 234–6. 54 ibid., 341–2, 444–6. 55 ibid., 195–339, 341–540. 56 ibid., 278–9. 57 E. S. Reddy (ed), Oliver Tambo: Apartheid and the International Community, Addresses to the United Nations Committees and Conferences (New Delhi, 1991), 6–7. 58 ICJ Pleadings, South West Africa Case, Vol. IX, 15–16. 59 See A. D’Amato, ‘Legal and Political Strategies of the South West Africa Litigation,’ Law in Transition Quarterly, ii (1967) 8–43. E. Landis, ‘South West Africa Cases: Remand to the United Nations’, Cornell Law Quarterly, lii (1967) 627–671. 60 Ethiopia and Liberia v. South Africa: The South West Africa Cases, Occasional Papers No. 5 (Los Angles, 1968), 17. 61 ICJ Pleadings, South West Africa Cases, Vol. IX, 21. 62 This concept had been discussed earlier by the Applicants, but it now moved to the forefront of their case. The definition of the norm was provided after the submission of the Respondent's Counter-Memorial. In the Applicant's words, ‘The terms “non-discrimination” or “non-separation” are used in their prevalent and customary sense: stated negatively, the terms refer to the absence of governmental policies or action which allot status, rights, duties, privileges or burdens on the basis of membership in a group, class or race rather than on the basis of individual merit, capacity or potential: stated affirmatively, the terms refer to governmental policies and actions the objective of which is to protect equality or opportunity and equal protection of the laws to individual persons as such’ (ibid, Vol. IV, 493). 63 ibid, 494–5. 64 Ethiopia and Liberia v. South Africa: The South West Africa Cases, Occasional Papers No. 31–41, 35–8. 65 Slonim, 246. 66 ICJ Pleadings, South West Africa Case, Vol. XII, 373–91. 67 ibid, Vol. IV, 373. 68 Authority of U.S.A to stop SA trade, 26 March 1965, London, T[he] N[ational] A[rchives of the United Kingdom], F[oreign] O[ffice] 371/182125. 69 Report of the Task Force on the Review of African Development Policies and Programs, 22 July 1966, F[oreign] R[elations of the] U[nited] S[tates], 1964–1968, Volume 24: 334–49; Paper Prepared in the Department of State, FRUS, 1964–1968, 24: 369–75; Discussion on Southern Africa, 1 March 1966, TNA, FO 371/188149. 70 Memorandum From Secretary of State Rusk to President Johnson, 14 Oct. 1965, FRUS, 1964–1968, 24: 311. 71 Memorandum From the President's Deputy Special Assistant for National SecurityAffairs (Komer) to President Johnson, 23 Nov. 1965, FRUS, 1964–1968, 24: 313. 72 Memorandum for the President, 3 May 1964, FRUS, 1964–1968, 24: 987–88; AF Priority Issues, 3 April 1963, NARA, RG 59, Office of East and South African Affairs, Box 3; Analysis of U.S./UK approach, April 1965, NA, FO 371/182126; Telegram from Pretoria, 23 June 1966, NA, FO 371/188149; Interview by the Minister of Information, 5 Aug. 1964, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 4; U.S.–U.K. Policy on Southern Africa, 8 July 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 5a. 73 Memorandum From the Joint Chiefs of Staff to Secretary of Defense McNamara, 22 May 1964, FRUS, 1964–1968, 24: 991. 74 Memorandum From President Johnson to Secretary of State Rusk, 28 November 1965, FRUS, 1964–1968, 24: 315. 75 National Policy Paper – South Africa (Secret), 18 Jan. 1965, NARA, RG 59, S/P Files: Lot 72 D 139. 76 Borstelmann, Cold War and the Color Line, 172–221; Dudziak, Cold War Civil Rights, 203–49. A whole generation of scholars framed America's approach in the 1960s around its economic interests in the region. As recent scholarship reveals, the reality was far more complex. Economic issues were simply one part of a much bigger conversation within the US government. 77 National Policy Paper – South Africa (Secret), 18 Jan. 1965, NARA, RG 59, S/P Files: Lot 72 D 139. 78 Possible U.S./UK Approaches to South West Africa Problem, 24 Jan. 1963, NARA, RG 59, Office of East and South African Affairs, Box 3; Next Steps on South West Africa, 8 Feb. 1963, NARA, RG 59, Office of East and South African Affairs, Box 3; South West African Contingency Briefing Paper, 4 March 1963, NARA, RG 59, Office of East and South African Affairs, Box 3; The International Court of Justice on South West Africa, 22 June 1966, TNA, FO 371/188149. 79 National Security Action Memorandum No. 295, 24 April 1964, FRUS, 1964–1968, 24: 985–6; 30 Status Report on NSAM No. 295, July 1964, FRUS, 1964–1968, 24: 995–8; Status Report on NSAM No. 295, 31 July 1965, FRUS, 1964–1968, 24: 1032–8. 80 ibid.; State Department Action to Discourage U.S. Investments in South Africa (secret), 15 Feb. 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 4a; Mr. Mennen Williams brief United States businessmen (secret), 29 July 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 4a. 81 Telegram From the Embassy in South Africa to the Department of State, 5 May 1965, FRUS, 1964–1968, 24: 1026–7; ‘Vliegdekskip: Independence, 26 July 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 4a. 82 Letter From Secretary of Defense McNamara to Secretary of State Rusk, 3 May 1965, FRUS, 1964–1968, 24: 1025–6; Intelligence Report Prepared in the Central Intelligence Agency, 1 Nov. 1966, FRUS, 1964–1968, 24: 1061. 83 Telegram From the Embassy in South Africa to the Department of State, 12 February 1964, FRUS, 1964–1968, 24: 969–970; Telegram From the Department of State to the Embassy in South Africa, 13 April 1965, FRUS, 1964–1968, 24: 1025–6; Memorandum From William H. Brubeck of the National Security Council Staff to the President's Special Assistant for National Security Affairs (Bundy), 18 March 1964, FRUS, 1964–1968, 24: 974–5. 84 Telegram From the Department of State to the Embassy in South Africa, 13 April 1965, FRUS, 1964–1968, 24: 1022–24; U.S./UK Talks, 2 April 1965, TNA, FO 371/182125; Meeting with State Department, 10 August 1965, TNA, FO 371/182125; Anglo-American Talks on the U.N., 4 March 1966, TNA, FO 371/188149; The International Court Case on South West Africa, 22 June 1966, TNA, FO 371/188149; Anglo-American Talks on the South-West Problem, 6 July 1966, TNA, FO 371/188150. 85 Relations with the United States (Secret), 13 Aug. 1965, ASAMFA, BTS 1/33/3, Verhoudings met die Verenigde State var Amerika, Vol. 1. 86 Mr. Taswell's Report 8/6 of 13 Aug. 1965, 3 Sept. 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A. Vol. 5. 87 Informal Talks with Members of United States Administration, 21 Jan. 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A. Vol. 4a. 88 ICJ Pleadings, South West Africa Case, Vol. XI, 643–708. 89 ibid., 703. 90 ibid., Vol. XII, 392–451. 91 ibid., XI, 643–708. 92 ibid., 708. 93 Interview with Governor Williams (Secret), 10 Feb. 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 4a. 94 Interview with Secretary of State in NY (Secret), 30 Sept. 1965, ASAMFA, BTS 1/33/3, U.S.A. Relations with S.A., Vol. 7a. 95 Summary Notes of the 561st Meeting of the National Security Council, 14 July 1966, FRUS 1964–1968, 24: 1052–1053. 96 The International Court Case on South West Africa, 22 June 1966, TNA, FO 371/188149. 97 The story of why the Court overruled its earlier opinion is fascinating in its own right. Without delving too deeply into the internal dynamics of the Court in the mid-1960s, it is worth noting that one of the judges - Bustamante y Rivero of Peru - was unable to participate in the 1966 decision because of illness. Under normal circumstances, a replacement judge would hear the case on his behalf. However, the President of the Court - Sir Percy Spender - refused to appoint such a figure because the replacement judge had been involved with non-aligned politics and lobbied to serve as the African bloc's Ad Hoc judge for the SWA case in 1960. Because this spot was left open the court was split seven-to-seven in 1966, and Spender was able to cast a tie-breaking vote. This was extremely controversial at the time. Many members of the African bloc labelled Spender a racist and colonialist, and lobbied to restructure the Court to better represent Third-World views. Their efforts ultimately led to reforms that transformed the composition of the ICJ in the 1970s. See Interview with Expelled Judge, 1 Aug. 1966, NARA, RG 59, Bureau of African Affairs, Box 55. 98 ICJ Judgment, South West Africa Case, 34. 99 ibid., 49–51. 100 ibid., 48. 101 Interview with Ghana's ambassador, 20 July 1966, ASAMFA, BTS 1/18/15/3 (62), Reactions to Judgment, Vol. 5. 102 Congress Interview with Gross, 8 Aug. 1966, ASAMFA, BTS 1/18/15/3 (62), Reactions to Judgment, Vol. 6. 103 New York Times, 29 July 1966, Anti-climax at The Hague. 104 Statement by Prime Minister Verwoerd (Press Release), 18 July 1966, ASAMFA, BTS 1/18/15/3 (62), Reactions to Judgment, Vol. 1. 105 Implications of ICJ Case, ASAMFA, BTS 1/18/15/3 (62), Reactions to Judgment, Vol.9. 106 See S. Slonim, South West Africa and the United Nations (Baltimore, 1973); J. Dugard, The South West Africa/Namibia Dispute (Berkley, 1973); L. Gross, ‘The United Nations and the Role of Law’, International Organization, xix (1965) 537–561. N. G. Onuf, ‘Professor Falk on the Quasi-Legislative Competence of the General Assembly’, American Journal of International Law, lxiv (1970) 349–355. L. Henkin, ‘The United Nations and the Rules of Law’, Harvard International Law Journal, xi (1970) 429–435.