ABSTRACT
There are few enough happy events in international law that when one occurs it is likely to make a strong impression and likely that its memory will linger for a long time. The liberation of Nelson Mandela, as the symbolic end of the regime of apartheid (or at least the beginning of the end), was arguably such an event, and it is inseparable from a certain historical feeling that new horizons were opening up for international law and human rights. It is also inseparable from the history of international organization, and in particular of four decades of the issue of apartheid being in some form or other on the agenda of the United Nations (UN). Not that a number of other events couldn’t have qualified as similarly
significant for the end of apartheid and for international law in the early 1990s. In terms of the end of apartheid, the constitutional transition of 1994 was clearly the turning moment. In terms of the definition of the era, the fall of the Berlin Wall probably outclassed most events. But both of these were large, structural events that perhaps lacked the individual poignancy of the release of Madiba (as Mandela is often affectionately known in South Africa). There was, in other words, something simultaneously particularly epochal and particularly personal about the slow emergence of that heroic figure on that heated and seemingly interminable afternoon of February 1990. The event was also an especially happy one because it had been awaited for so long – 27 years, no less. A great event, therefore, but was it … an ‘international law’ event? There
are, surely, more helpful characterizations. A personal, political, social event: all of these are, perhaps, more evident ways of seeing it. It was, moreover, a South African and an African event, perhaps before it could truly be described as an ‘international’ event. What are the ways, therefore, in which it might be described as an ‘international’, ‘legal’, and indeed an ‘international legal’ event? There were certainly elements of ‘law’ in the liberation of Mandela: this
was, after all, a liberation from prison. However purely political the decision to free him may have been, it did herald the demise not only of a political but an entire legal apparatus. Indeed, the apartheid regime had, like some
racist or dictatorial regimes before it, been a powerfully legal regime. Maybe it was also illegal, but that did not prevent it from being very fond of the law, in its own perverse way. Mandela was not simply executed like so many victims of the South American ‘dirty wars’; he was tried, sentenced and sent to jail. Apartheid was ‘racism made law’. Furthermore, although primarily in some ways a South African event, the end of apartheid had a much larger global resonance. It fitted within a larger scenario of ending the Cold War. More generally, a considerable part of international public opinion had identified strongly with Mandela’s plight over the years, and the apartheid regime was widely abhorred. But what did international law, a law traditionally thought to apply primarily to the relations between states, specifically have to do with this process? The question may seem a strange one to raise given how much the fight
against apartheid became an international and United Nations cause célèbre (see, for instance, United Nations Department of Public Information 1994). The international community certainly gives itself credit for substantially contributing to the downfall of apartheid. Boutros Boutros-Ghali (then UN Secretary-General) once spoke of the ‘four decades’ of UN involvement and the fact that universal organization ‘has spearheaded the international campaign against apartheid’. Or, in a slightly more ornate style: ‘The United Nations raised its flag against the evil of apartheid. The world joined against it. … I pay tribute to the international organizations and the Member States who contributed and who stood together with you.’1 In international organizations and human rights circles, the end of apartheid is widely seen as one of the great victories of international law, a ‘model of international human rights change’ (Black 1999). This is what might be described as the conventional ‘internationalist’ account of the end of apartheid, one rich with the echo of numerous General Assembly resolutions. But the heroic story of the UN ‘raising the flag of the anti-apartheid
struggle’ is maybe a little too self-serving to be entirely convincing. We should probably be wary of international law claiming too much for itself, as if to validate its particular narrative of justice. The temptation to ‘personalize’ international law as an autonomous force for progress is at best a simplification, at worse an unhelpful ex post reconstruction. What exactly, then, are we to make of this claim that international law was at the forefront of the demise of apartheid? What is the real link between international law and major domestic political change? Is international law cause or consequence of the ‘event’? A simplistic ‘command-and-control’ vision of international law would no
doubt opt for causality. But the project of international law – and it has to be said that it is often misunderstood outside its limited sphere – is probably less a claim to be respected than a claim to transform. International lawyers know that their body of rules is not quite as established as they feign to treat it, and their project is not so much one of reigning as it is one of taming. It is
less a system of rules than a process of programmatic change. It should come as no surprise, then, that the system relies even more on the occasional validation by ‘happy events’, or that this magic moment of liberation seems more defining of international law than four decades of blatant violation. In that sense, however, there is always a risk that the international legal
narrative will ‘steal’ the victory from some other, most likely non-international, actor. What might be excluded from international law’s triumphant account of the end of apartheid? As it happens, there is little doubt that the greatest credit for the end of apartheid comes from forces internal to South Africa, often forgotten in accounts that focus on London, Washington and New York. The African National Congress (ANC), the Inkatha, the South African Communist Party, the Pan-Africanist Congress, the Azanian People’s Liberation Army, the Black Consciousness Movement, the Black Sash, the National Forum, the United Democratic Front, the Liberal Party, the Armed Resistance Movement, the South African Indian Congress, the Organization of Coloured People, Poqo, Umkhonto, Isolera Sydafrika-Kommittén (ISAK), the Congress of South African Trade Unions (COSATU): all contributed in varying degrees to the collapse of the system they abhorred. Their crucible was the Defiance campaign, the Congress of the People, the Treason trials, the Sharpeville massacres, the Soweto uprisings and the Purple Rain protest. That narrative is, of course, an internally complicated one in that it was at times riddled with rivalries.2 But what is obvious is that these movements were largely home-grown, and that apartheid would never have come to an end were it not for the relentless pressure they applied to the South African Government. Indeed, the ‘international community’ was occasionally happy to recognize this, as when Boutros-Ghali emphasized that, ‘The destruction of apartheid is a tribute to the people of South Africa’ (Boutros-Ghali 1994). However, it would also be wrong to see the South African anti-apartheid
movement itself as exclusively domestic. Although its roots may have been largely in South African reality, it was very adept at ‘internationalizing’ its struggle. The Congress of the People had, as early as 1955, evidenced a keen intent to put the world on notice:
We, the people of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no Government can justly claim authority unless it is based on the will of all the people.3
