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1991

A Road Paved With Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to

Antonio F. Perez The Catholic University of America, Columbus School of Law

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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).

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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 . 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 . 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 , 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. apparent weaknesses of the Articles of The Assistant Secretary of State for local sanctions against Confederation, which in the first years of African Affairs, Chester Crocker, medi- South Africa and independence permitted thirteen differ- ated the negotiations for the Tripartite ent sovereigns to conduct thirteen differ- Agreement. The fruit of these efforts Namibia is a textbook ent foreign policies. The prospect of was the achievement of two long-stand- example of the argument multiple and inconsistent obligations ing goals of U.S. policy in southern for the exclusive federal and undertakings then jeopardized the Africa: South Africa's agreement on very survival of the United States. It was granting Namibia independence based management of the for this reason that the constitution con- on a new, democratic constitution draft- nation's foreign affairs solidated authority over foreign relations ed by a constituent assembly that would powers in the federal government.2 be elected in U.N.-supervised free and in all cases. The clauses of the Constitution specifi- fair elections; and the removal of Cuban cally touching on questions relating to intervention forces from the Angolan foreign affairs confirm this understand- civil war.'4 ing. For example, the Constitution pro- Accordingly, on March 21, 1990, the The same cannot be said for states' vides that the President "Shall have the President welcomed Namibia's indepen- and localities' management of their own Power, by and with the Advice and Con- dence and announced the United States' foreign policies. After the Republic of sent of the Senate, to make Treaties" and intention to commence good economic Namibia became independent on "by and with the Advice and Consent of relations with the new nation, stating: March 21, 1990, many states and locali- the Senate, shall appoint Ambassadors."" ties failed to follow the federal example He alone may "receive Ambassadors and The United States established 2 diplo- of lifting sanctions, continuing to penal- other public Ministers." 4 The Constitu- matic relations with the Republic of tion even explicitly denies states Namibia today, and we will take the ize the very victims of apartheid in any in- necessary steps to exchange Ambas- Namibia their sanctions were originally dependent authority to conclude treaties sadors as quickly as possible. We wel- intended to benefit. The State Depart- or other international agreements, for it come Namibia as a full trading partner ment's letters to states and localities fol- provides "No State shall enter into any and are taking steps to ensure that it is lowing Namibia's independence ap- Treaty, Alliance, or Confederation,"" and "no given access to the American market. peared to have little effect. According to State shall, without the consent of With the end of South Africa's admin- Congress .... enter into any Agreement istration, all U.S. sanctions against the Investor Responsibility Research Namibia are being lifted. 5 Council, as of November 1990, forty-two or Contract with another State, or with a states and localities retained sanctions foreign Power . . . . 26 Notably, 'Treaties Thereafter, in a letter to state gover- against Namibia. As of this writing, three made . . .under the Authority of the nors, the State Department urged states states and twenty cities and countries United States"-- rather than also those and localities "to terminate measures continued to retain these sanctions. 9 made under the authority of the mem-

Federal Bar News &Journal bers of the Confederation individual- plementation of these laws and regula- Supreme Court's leading statement on ly-"shall be the Supreme Law of the tions, they result in a plethora of over- the federal foreign relations power, Zsch- Land."27 Finally, the constitutionally-pre- lapping and conflicting requirements ernig v. Miller. scribed original jurisdiction of the from state to state, and locality to locali- In Zschernig, the Court invalidated an Supreme Court extends to "all Cases af- ty. In some cases, any goods or services Oregon law under which foreign nation- fecting Ambassadors, other public Min- originating in South Africa are barred; als could not claim an inheritance when isters and Consul ... ,,"2thus ensuring still others cover goods or services pro- their country's laws did not provide U.S. that the nation speaks with one voice in vided by South African incorporated en- citizens the same rights, on the theory even the most mundane juridical ques- tities, regardless of whether the goods that the law had "more than 'some inci- 29 tions relating to foreign emissaries. or services themselves originate in dental or indirect effect in foreign coun- In sum, our constitutional framework South Africa. Thus, to ensure it is eligi- tries'. " - Unlike the Maryland Court of could not be clearer. Yet none of these ble for a significant share of state and Appeals, in deciding whether the Zsch- bulwarks of federal supremacy and ex- local government business, a prudently ernigtest is met, courts may wish to evalu- clusivity in foreign affairs has held back managed U.S. corporation would be in- ate the cumulative impact a measure the tide of state and local forays into for- clined to conform its business in South would have were it to become the rule eign policy. Africa to the strictest applicable state or for every other state." Similar reasoning local standard. Because of the number is invoked to determine, for example, The Theory for Non-Federal and variety of measures, corporate the scope of the Congress's power under Foreign Policy counsel may assume the worst and ad- the Commerce Clause. 7 More impor- vise their clients to terminate operations tant, focusing their analysis on the hypo- States and localities could in theory in South Africa to avoid unnecessarily thetical cumulative impact of state and draw on various constitutional sources jeopardizing potential U.S. business. local sanctions would help courts pre- to defend their foreign policy activities. No federal court has addressed the serve their role as neutral guardians of Arguments could be framed in terms of constitutional issues posed by these the constitutional separation of authority general principles of federalism to de- measures. However, the highest court of between the federal government and the fend procurement restrictions, or per- the State of Maryland has sustained a states by allowing them to avoid difficult haps, under principles of freedom of City of Baltimore ordinance barring the judgments as to the effect of a particular 38 speech, to defend legislative resolutions investment of city pension funds in cor- measure on U.S. foreign policy. which purport only to express a point of porations doing business in South The Maryland court also thoroughly view. Yet the behavior of state and local Africa. 3 Relying heavily on the trial analyzed the preemption issue. Yet, it representatives is conditioned more by court's finding of fact that the Ordi- may not have given Congress's own ar- their desire to be reelected than the pre- nance itself had only a minimal and in- ticulation of its intent the wide berth it cise allocation of constitutional authori- direct impact on South Africa, the court deserved. Section 4 of the CAAA ex- ty over foreign affairs." Thus, states and held that the Ordinance did not uncon- pressly states the CAAA is intended to localities have responded to political stitutionally interfere with the federal "set forth a comprehensive and com- pressure by adopting their own sanc- government's exclusive power to man- plete framework to guide the efforts of tions. Perhaps because of the serious age U.S. foreign policy.3" The court also the United States in helping bring about constitutional questions raised by these relied in part on "market participant" an end to apartheid in South Africa.""9 efforts, most state and local measures on doctrine, under which a state may dis- Moreover, the CAAA implied that after a South Africa, taken individually, are in criminate in investment and procure- specific date, the federal government fact quite pedestrian. They generally ment decisions in favor of its own citi- could take action to enforce the foreign take only two forms. In one, the govern- zens, to sustain the ordinance against policy articulated in Section 4. Section 3 4 mental unit requires managers of its em- dormant Commerce Clause challenge. 606 barred the reduction of federal con- ployee pension funds to prohibit or con- Finally, it concluded that the Compre- tributions to states or the imposition of dition investment in U.S. corporations hensive Anti-Apartheid Act of 1986 did any other federal penalty "by reason of doing business in South Africa. In the not preempt-or "occupy the field" application of any state or local law con- second form, the governmental unit re- of-U.S. sanctions against South Africa cerning apartheid . . . for 90 days after" quires its purchasing agents to prohibit so as bar state measures by implication. the CAAA's enactment.40 This limited or condition procurement from U.S. The court's discussion illustrates the safe-harbour rule supports the interpre- corporations doing business in South complexities of these constitutional and tation that Congress contemplated that Africa. statutory interpretive issues; given the states and localities would cease apply- The rationale for both types of mea- difficulties, it would appear prudent for ing their anti-apartheid ordinances. sures, however, is the same: the govern- states and localities to adopt a healthy The Congress later adopted an addi- mental unit, ostensibly in its capacity as degree of self-restraint in this area. The tional safe-harbour provision for state a market participant rather than market court's decision, for example, appears to and local rules on procurement from regulator, has chosen to set aside purely suggest that the City of Baltimore may South Africa. 1 Like Section 606 of the economic concerns and incorporate po- purport to encourage the dismantling of CAAA, this measure limited the Execu- litical or moral desiderata in deciding apartheid, but only when the measures tive Branch's power to deny-essentially how to invest funds for which it is re- through which it chooses to implement as a means to enforce federal foreign sponsible and from whom to purchase that policy are largely ineffective. The policy-funds appropriated by Congress goods and services.1 decision thus seems to avoid confronting for transportation projects in offending Taken together, state and local mea- the constitutional principle that states states and localities. It does not suggest sures can have a serious impact. Given not implement separate foreign policies, the Congress intended to overturn the the differences in the phrasing and im- which is the major premise of the preemptive effect of the CAAA or ap-

September 1991/Volume 38, No. 7 prove state and local foreign policy-mak- of shortage refused to sell to out-of-state Clause jurisprudence to a constitutional ing that would otherwise intrude on the buyers.44 Then, in White v. Massachusetts wild card in foreign affairs. federal government's exclusive compe- Council of ConstructionEmployers, Inc., the tence in foreign relations. Court sanctioned an executive order by The Lessons of Namibia Sanctions One last point may shed light on the the Mayor of Boston requiring firms per- preemption issue. The Comprehensive forming city-funded construction pro- Even opponents of apartheid acknowl- Anti-Apartheid Act of 1986 itself man- jects to ensure that Boston residents edge that state and local forays into for- dates the termination of a broad range made up at least half their work force. eign policy making on South Africa raise 5 of sanctions against South Africa when Justice Rehnquist concluded that the serious constitutional questions. 1 In- the government meets certain specific city-even in this case where it imposed deed, given the startling progress toward conditions. This suggests that Congress "restrictions that reach[ed] beyond the dismantling apartheid, one questions intended to create an integrated statuto- immediate parties with which the gov- whether state and local sanctions against ry scheme to maximize the effect of fed- ernment transact[ed] business"-en- South Africa also will soon become eral sanctions by providing rewards for gaged in participation in, rather than anachronistic. On the theory that U.S. specific progress. The retention of state regulation of, the market.4 5 corporate presence is a force for improv- and local measures that would undercut However, a more recent Supreme ing the condition of non-white workers the effect of the integrated federal Court decision suggests the market par- in South Africa, the Executive Branch scheme could thus subvert the purposes ticipant exception may be inapplicable has consistently opposed sanctions de- of the CAAA. to cases touching on foreign relations. signed to force U.S. businesses to disin- 5 1 The issue of greatest general interest In South-Central Timber Development, Inc. vest from South Africa. in the Maryland court's opinion, howev- v. Wunnicke, the Court refused to extend Moreover, as noted earlier, the CAAA er, is its expansive reading of the market the doctrine to preference for state resi- contemplates an integrated statutory participant exception to the dormant dents implemented through market par- scheme of carrots and sticks-with one Commerce Clause to sanction states' ticipation. 46 The State of Alaska had re- hand, imposing sanctions; and, with the and localities' expressing their citizens' quired buyers of state owned timber- other, conditioning their lifting on views on foreign policy. The modern mainly in the Japanese market-to pro- South Africa's meeting certain specific formulation of the dormant Commerce cess the timber in Alaska before ship- conditions) 2 Thus, even if state and local Clause is found in Pike v. Bruce Church, ping outside the state.4 7 Notably, Wun- sanctions against South Africa were con- Inc., in which the Court stated that: nicke is the only market participant doc- sidered constitutional before the CAAA's trine case thus far to involve foreign conditions were met, on the theory that [W]here the statute regulates even- commerce, and Justice White expressly handedly to effectuate a legitimate they were consistent with a federal policy public interest, and its effects on inter- distinguished it on this ground from to impose sanctions against South Africa, state commerce are only incidental, it preceding cases where the doctrine had this rationale would disappear with the will be upheld unless the burden im- shielded state action from dormant lifting of federal sanctions pursuant to posed on such commerce is clearly ex- Commerce Clause attack. Justice White the sanctions' lifting provisions of the cessive in relation to the putative local relied on settled precedent to suggest CAAA. State and local action to conform benefits. If a legitimate local purpose if that a state's latitude to act even in a with federal policy would probably be found, then the4 2 question becomes one of degree .... solely proprietary capacity is far less necessary to fully implement these feder- whenever foreign commerce may be af- al foreign policy goals. But if the case of The market participant doctrine, fected than it is when only domestic Namibia is any guide, it is questionable which, as its name suggests, is founded commerce is involved. 48 Yet, considering whether states and localities are institu- on the distinction between the state's be- that Justice White also noted special sig- tionally capable of reacting to changing havior as a market participant rather nificance in the case of natural re- circumstances overseas with the same co- than market regulator, is perhaps best sources and the imposition of the re- herence demonstrated by the federal understood as the distinct category of strictions on resale, it is not clear government. "legitimate local purposes." It was first whether the presence of foreign com- Unlike the Articles of Confederation articulated in the 1976 decision Hughes merce alone would have sufficed to dis- in the 1780's, the nation's survival is not v. Alexandria Scrap Corporation, in which tinguish Wunnicke from previous market threatened today by inconsistent and in- 49 Justice Powell concluded that the State participant cases. coherent foreign policies of the several of Maryland could, as purchaser of aban- In sum, the Maryland Court of Ap- states. Nonetheless, the case of state and doned cars for purposes of a recycling peals' use of the market participant ex- local sanctions against South Africa and program, effectively "restrict its trade to ception goes beyond precedent. The Namibia is a textbook example of the ar- its own citizens" by imposing more oner- court, indeed, failed to distinguish be- gument for the exclusive federal man- ous title proof requirements on out-of- tween state action to favor the state's agement of the nation's foreign affairs state firms than in-state firms in estab- own citizens, the traditional domain of in all cases. The institutional incapacity lishing eligibility for state subsidies for the market participant exception, and of states and localities to conform their processing Maryland-titled abandoned state action to encourage political would-be foreign policies to the federal cars.4 3 Four years later, in Reeves, Inc. v. change in a foreign country. Conse- government's in a timely fashion, even if Stake, the Court invoked the exception quently, its decision could be misinter- it is their desire to do so, suggest that when the state acted as a seller. In that preted to transform the doctrine from a states and localities are better off con- case, the State of South Dakota, which it- narrowly limited exception to the ducting their own affairs rather than the self operated a cement plant, in a time Supreme Court's traditional Commerce nation's.

Federal Bar News &Journal ENDNOTES

'See Bilder, The Role of States and Cities in 4U.S. CONST. art. II, § 3. 4"467 U.S. at 100. See, e.g.,Japan Line, Ltd. Foreign Relations, 83 Am. J. INT'L L. 821, 822- 25U.S. CONST. art. I, § 10. cl.1. v. County of Los Angeles, 441 U.S. 434 23 (1989) (reviewing practice by states and 26U.S. CONST. art. I, § 10. cl.3. (1979) (invalidating a nondiscrimiiatory ad localities and 2"U.S. CONST. the legal issues raised by state 5 art. VI, § 2. valorem state property tax on foreign-owned and local sanctions). ' U.S. CONST. art. III, § 2, cl.2. cargo containers in international commerce 'See generally J. DUGARD, THE SOUTH WEST ""Nowhere than in the field of foreign af- because it "prevents the Federal Government AFRICA/NAMIBIA DISPUTE: DOCUMENTS AND fairs is it more useful to recall Justice from 'speaking with one voice' in interna- SCHOLARLY WRITINGS ON THE CONTROVERSY BE- Holmes' often quoted assertion that "I do tional trade" and so is "inconsistent with TWEEN SOUTH AFRICA AND THE UNITED NA- not think the United States would come to Congress' power to 'regulate Commerce with TIONS 15-128 (1973). an end if [the Supreme Court] lost our foreign Nations"). But see Container Corp. of 11d. at 379. power to declare an Act of Congress void. I America v. Federal Tax Board, 463 U.S. 159 4 1d. at 442. do think the Union would be imperiled if we (1983) (sustaining application of California's 'Legal Consequencesfor States of the Contin- could not make that declaration as to the unitary tax to a U.S. corporation with its ued Presence of South Africa in Namibia (South laws of the several States." OW. HOLMES, principal place of business in the U.S., even West Africa) notwithstanding Security Council COLLECTED LEGAL PAPERS (1920), quoted in G. though the corporation had foreign sub- Resolution 276 (1970), 1971 I.C.J. Reports 4. GUNTHER, CONSTITUTIONAL LtW 48 (1980). sidiaries). "See DEP'T ST. BULL., Dec. 5, 1966, at 871- 3See generally, D. MAYFIEW, THE ELECTORAL 4 467 U.S. at 96. 72; id., Mar. 16, 1970, at 360-61. CONNECTION (1974). 5"See, e.g., Berat, Undoing and Redoing Busi- 7See U.S. Oral Statement on Continued Pres- "See generally, State and Local Action, supra ness in South Africa: The Lifting of the Compre- ence of South Africa in Namibia Presented Before note 20, at 822-24 (also describing the argu- hensive Anti-Apartheid Act of 1986 and the Con- the International Court of Justice, DEP'T ST. ment that companies in South Africa are not tinuing Validity of State and Local Anti- BULL., Apr. 26, 1971, at 524-29. good investments). Apartheid Legislation, 6 CONN.J. INT'L L. 7, 31- 'See Letter of April 10, 1978, U.N. Doc. 12Board of Trustees v. City of Baltimore, 317 42 (1990). S/12626 (1978). Md. 72, 562 A.2d 720 (1989), cert. denied, 110 "1See, e.g., Statement by Deputy Assistant 'Resolution 435 (1978), para. 3, S. Ct. 1167 (1990) [hereinafter City of Balti- Secretary for African Affairs Robert S. Smith, S/RES/435 (1978). more]. See also Colomb, Maryland Counters The Dilemma of Foreign Investment in "See DIGEST OF UNITED STATES PRACTICE IN Apartheid: Board of Trustees v. City of Baltimore, South Africa, DEP'T ST. BULL., June 28, 1971, INTERNATIONAL LAw 38-54 (1978). 14 MD.J. INT'L L. & TRADE L. 251 (1990). at 825-27 ("We do not discourage U.S. firms "See DIGEST OF UNITED STATES PRACTICE IN ""Colomb, supra note 32, at 260. from investing, because we believe U.S. firms INTERNATIONAL LAW (1981-89) (forthcoming). "City of Baltimore, 317 Md. at 146, 562 can exercise an influence for good, even "'See DEP'T Sr. BULL., Dec. 22, 1988, at 13- A.2d at 751. within the system"). 16. 35389 U.S. 429, 434 (1968) (quoting Clark v. "'Section 311 (a) of the CAAA, supra note "3See S/RES/632 (1989); U.N. Doc. Allen, 331 U.S. 503, 515 (1947)). 18, provides that certain measures "shall ter- S/20412 (1989); U.N. Doc. S/20457 (1989). 3Cf State and Local Action, supra note 20, at minate if the Government of South "See Freeman, The Angola/Namibia Accords, 835 n.9. Africa-(1) releases all persons persecuted 68 FOREIGN AFF., 126-41 (1989); see also NA- 37See, e.g.,Wickard v. Filburn, 317 U.S. 111 for their political beliefs or detained unduly TIONAL DEMOCRATIC INSTITUTE FOR INTERNA- (1942) (the aggregation approach). without trial and from TIONAL AFFAIRS, NATION BUILDING: THE U.N. ""See Baker v. Carr, 369 U.S. 186, 211 prison; (2) repeals the state of emergency in AND NAMIBIA (1990). (1962) (Justice Brennan, commenting on effect on the date of enactment of this Act 15See President's Statement on Namibian the nature of foreign relations issues, stated: and releases all detainees held under such Independence, 26 WEEKLY COMP. PREs. Doc. "Not only does resolution of such issues fre- state of emergency; (3) unbans democratic 452 (Mar. 21, 1990). quently turn on standards that defy judicial political parties and permits the free exercise "See Namibia, A Year After Independence Still application, or involve the exercise of a dis- by South Africans of all races of the right to Faces Sanctions of U.S. Localities, Wall St. J., cretion demonstrably committed to the exec- form political parties, express political opin- Mar. 22, 1991, at A5C, col. 1. utive or legislature but many such questions ions, and otherwise participate in the politi- "See Namibia: The Exploitation of Natural Re- uniquely demand single-voiced statement of cal process; (4) repeals the Group Areas Act sources and U.S. Policy: Hearing Before the Sub- the Government's views"). and the Population Registration Act and in- comm. on Africa of the House Committee on For- "See CAAA, supra note 18, § 4. stitutes no other measures with the same put eign Affairs, 99th Cong., 1st Sess. 154-59 4"Id., § 606. poses; and (5) agrees to enter into good faith (1985) (App. 2). 41See Dire Emergency Supplementals and negotiations with truly representative mem- "'Section 3 (6) of the Comprehensive Anti- Transfer, Urgent Supplemental Appropria- hers of the black majority without precondi- Apartheid Act of 1986, Pub. L. No. 99-440 tions, and Correcting Enrollment Errors Act tions." Section 311(b) also authorizes the (codified at 22 U.S.C. § 5001 et seq.) [here- of 1989, Pub. L. No. 10145, 22 U.S.C. 5117, President to "suspend or modify" sanctions if inafter CAAA]. ch. IX, tit.. he determines, and so reports to Congress, "See Local U.S. Laws Confound Namibia, 4397 U.S. 137, 142 (1970). that "the Government of South Africa IRRC S. AFR. REP., Dec. 1990, at 70-71; see also ""426 U.S. 794, 808 (1976). has-(1) taken the action described in para- IRRC Divestment Action Roundup: November 44447 U.S. 429 (1980). graph (1) of subsection (a), (2) taken three 1990, at 50 ("States and Localities with Leg- 4"460 U.S. 204, 211 n.7 (1983). of the four actions listed in paragraphs (2) islative References to Namibia"). 4"467 U.S. 82 (1984). through (5) of subsection (a), and; (3) made ""Compare, e.g, Note, State and Local Anti- 47Id. at 85 n.4. See also New Energy Co. v. substantial progress toward dismantling the South Africa Action as an Intrusion Upon the Limbach, 108 S.Ct. 1803, 1809 (1988) (The system of apartheid and establishing a nonra- FederalPower in Foreign Affairs, 72 VA. L. REv. Court found a violation of the commerce cial democracy, unless the Congress enacts.. 813 (1986) [hereinafter State and Local clause where an Ohio statute provided a tax . ajoint resolution disapproving the determi- Action] with L. TRIBE, AMERICAN CONSTITU- credit for the purpose of encouraging pro- nation of the President . . .," which, under TIONAL LAW §§ 6-21 (1988). duction of ethanol but denied the same tax I.N.S. v. Chadha, 462 U.S. 919 (1983), would 2'Cf, e.g., Note, Federal Preemption and the credit for ethanol produced in any state that be presented to the President for his signa- South Africa Sanctions: A Survival Guide for did not provide a similar tax credit for ture or veto. States and Cities, 10 Loy. L.A. INT'L & COMP. ethanol produced in Ohio, because the L.J. 693 (1988). Court viewed the power to tax as a "primeval 22See L. HENKIN, THE CONSTITUTION AND government activity" that "cannot plausibly FOREIGN AFFAIRS 227 (1972). be analogized to the activity of a private pur- ""U.S. CONST. art. 11, § 2, cl.2. chaser").

September 1991/Volume 38, No. 7