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State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia

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State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1991 A Road Paved With Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia Antonio F. Perez The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the International Law Commons Recommended Citation Antonio F. Perez, A Road Paved With Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia, 38 FED. B. NEWS & J. 405 (1991). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. A Road Paved with Good Intentions State and local efforts to conduct foreign policyand the application of South African sanctions to Namibia. By Antonio F. Perez* borne out by one particularly illuminat- of October 27, 1966 terminated the ~the Philadelphia Conven- ing example of state and local foreign mandate.' This decision was reaffirmed tion, the United States policy-sanctions against South Africa on January 30, 1970 by the Security W were-tohen the Framersuse the then met ap-at to end apartheid. Because South Africa Council in Resolution 276, which de- plicable grammatical convention-a occupied Namibia at the time many of clared "the continued presence of the confederation. Today, the plural usage is these measures were adopted, states and South African authorities in Namibia il- considered archaic. Similarly, its under- localities applied their South Africa legal."4 Finally, at the Security Council's lying constitutional concept is ordinarily sanctions to Namibia as well. For the request, the International Court of Jus- thought to be a relic of our constitution- most part, these measures were imposed tice (I.C.J.) rendered an Advisory Opin- al past. The states are no longer coequal out of moral outrage against apartheid. ion on June 21, 1971 confirming the sovereigns, each retaining its interna- States and localities responded to their General Assembly's power to terminate tional personality and thus the capacity constituents' desires to prevent the use the mandate. The United States voted to conduct international relations. We of state resources, even if only indirectly, in favor of the relevant General Assem- are instead united as one federal nation, in apparent support of apartheid. bly and Security Council resolutions," each state competent only to address in- Yet, sanctions against South Africa and also appeared before the I.C.J. to ternal matters and the federation alone have proven to be the proverbial "hard argue that the General Assembly Resolu- responsible for conducting the nation's case" that makes "bad law." They reveal tion was "valid and that it effectively ter- external relations. the danger of state and local forays into minated the administrative authority of 7' Modern constitutional practice, how- foreign policy making, as states and lo- South Africa under the mandate." ever, is not quite as congruent with this calities continued to apply their South The U.S. commitment was manifested received constitutional theory as one Africa sanctions to Namibia's detriment in far more than mere votes and rhetoric. would imagine. In recent years, and with even after Namibia achieved its indepen- The U.S. expended enormous time and increasing frequency, states and cities dence from South Africa on March 21, energy to secure Namibia's indepen- have intruded on the federal govern- 1990, and despite the fact that Namibia's dence over a ten-year, bipartisan, diplo- ment's conduct of foreign policy. independence was a long-standing goal matic odyssey, beginning during the Whether in adopting nonbinding reso- of U.S. policy in southern Africa. In the Carter administration with a plan for lutions and referenda on questions of author's opinion, the application to Namibia's independence, proposed ini- foreign policy, or declaring themselves Namibia of state and local sanctions tially at the U.N. Security Council by the "sanctuaries" for Central American against South Africa was a foreign policy representatives of Canada, France, the refugees or "nuclear free zones," states time bomb waiting to explode. Federal Republic of Germany, the Unit- and cities have raised their own voices in ed Kingdom of Great Britain and North- matters once reserved to the Executive U.S. Policy Toward Namibia ern Ireland and the United States (the Branch and the Congress alone.' Today, Contact Group).' By Resolution 435 of foreign embassies in Washington would It had long been U.S. policy to re- September 29, 1978, the Security Council be negligent in their duties if they ig- verse South Africa's unlawful occupa- approved the Secretary General's plan to nored the activities of state legislatures tion and administration of the territory implement the Contact Group proposal or even city councils, whose influence of Namibia. Formerly known as South- and established a U.N. Transitional Assis- can be felt far from U.S. borders. If, for West Africa, Namibia was a German tance Group (U.N.T.A.G.) to "ensure the example, some major states or cities colony administered after World War I early independence of Namibia through were to bar from their municipal bond by South Africa, on behalf of the United free and fair elections under the supervi- markets all banks doing business in a Kingdom and under a League of Na- sion and control of the United Nations."" particular country, it is highly probable tions mandate. After World War II, those banks would abandon their clients South Africa refused to conclude a in that country. The effect on the target trusteeship agreement with the United country could be as great as if the Unit- Nations (U.N.) to resolve the status of ed States itself had imposed economic the mandate and, claiming sovereignty sanctions. over Namibia, began to implement It is not an exaggeration to suggest apartheid.2 that, in many respects, the United States Dissatisfied with South Africa's refusal no longer "speaks with one voice" in the to carry out the mandate, the U.N. Gen- conduct of its foreign policy. This is eral Assembly in Resolution 2145 (XXI) September 1991/Volume 38, No. 7 South Africa objected to certain ele- they have imposed that are inconsistent There is, of course, a serious question ments of the U.N. plan, initially refused with good economic relations between whether, even before Namibia's inde- to implement Resolution 435, and pro- the United States and Namibia."'6 pendence, state and local sanctions ceeded instead with unilateral elections It should be noted that in 1970, after against South Africa (and by extension, in Namibia." Later, it also objected to the termination of the mandate, the U.S. Namibia) were inconsistent with the fed- the continued deployment of Cuban Government had announced its inten- eral government's exclusive power to troops in Angola. 1 In negotiations from tion not to represent the interests of any manage the nation's foreign relations or 1978 through 1988, South Africa's ob- U.S. persons investing in Namibia after with the federal government's control of jections to the U.N. plan were ad- the termination of the mandate, on the foreign commerce under the dormant dressed. The question of withdrawal of theory that South Africa no longer was commerce clause. 0 A case can also be Cuban troops from Angola was also re- competent to grant access to Namibian made that such measures were preempt- 7 2 solved in the Agreement of December natural resources.' Much later, U.S. ed by the CAAA. 1 It is clear, however, 22, 1988, between the People's Republic sanctions against South Africa under the that state and local South Africa sanc- of Angola, the Republic of Cuba, and Comprehensive Anti-Apartheid Act of tions have had the unintended effect of the Republic of South Africa. In this Tri- 1986 (the CAAA) were also applied to hampering Namibia's development as a partite Agreement, the People's Repub- Namibia, because the CAAA specifically market-oriented democracy, undercut- lic of Angola and Cuba agreed to the defined South Africa to include "any ter- ting the federal government's efforts in phased and total withdrawal of Cuban ritory under the administration, legal or this direction and embarrassing the troops from Angola in accordance with illegal, of South Africa.""' These and United States in the conduct of its for- their separate Bilateral Agreement of other Executive acts had created a web eign relations. the same date, and South Africa agreed of special burdens for Namibian com- to implement the U.N. plan for Namib- merce in the United States. Because of Foreign Policy: ia's independence. 2 Then, with modifi- changed circumstances, however, the The Constitutional Design cations contained in reports by the Sec- President reversed over two decades of retary General to the Security Council, federal policy virtually overnight. The federal government's exclusive the Security Council adopted Resolu- management of U.S. policy, including its tion 632 of February 16, 1989, authoriz- policy towards Namibia, is firmly based ing U.N.T.A.G. to deploy in Namibia no in the text, structure and history of the later than April 1, 1989, to begin imple- U.S. Constitution. The Framers' design mentation of the U.N. Plan for Namib- was a practical effort to avoid repeating 3 [T]he case of state and ia's independence.
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