Symposium: Small States, Legal Argument, and International Disputes
Litigating Imperialism?
Lessons from the South West Africa saga
by Ntina Tzouvala
Published on 14 July 2023
Amongst international lawyers in my adoptive country, Australia, the South West Africa saga tends to elicit cryptic comments and long pauses. The role of the then International Court of Justice (ICJ) President, Australian Sir Percy Spender, in altering the composition of the Court and casting the decisive vote in the 1966 ruling that Ethiopia and Liberia had standing to bring a case, but did not have standing to obtain a decision, remains the subject of both scholarly enquiry and mild embarrassment. The received wisdom is that Australia paid the price for Sir Percy’s behaviour by being excluded from the ICJ for half a century, until the election of James Crawford. However, Namibia was eventually vindicated both when the ICJ (with renewed) membership issued a new advisory opinion in 1971 condemning South Africa’s presence as unlawful under international law and when it eventually became an independent state free from Apartheid policies in 1990.
This version of the events presents an optimistic picture both of international law in general and of litigation in particular as promoting the rights both of post-colonial states and colonised peoples and eventually leading to a more just international order. There is a lot to agree with in this version of the events, while also acknowledging that it is incomplete. In particular, my research has led me to believe that the defeat of the progressive efforts to litigate South African colonialism had come about before the ICJ handed out its (bizarre and badly argued) decision in 1966 and also that the 1971 Advisory Opinion and Namibia’s independence were undeniably political victories but they were achieved by leaving behind more ambitious visions of decolonisation in international law.
This counter-intuitive view is grounded on my reading of the written submissions and oral arguments in the 1966 proceedings. Thinking that jurisdictional questions had been settled, both sides argued the case on the merits. The core of the dispute was, then, whether the particular form of racialised capitalism implemented by South West Africa in the former mandate was consistent with the ‘sacred trust of civilisation’. Ethiopia and Liberia found themselves in a peculiar situation: they had to anchor their arguments to the continuing legal relevance of ‘civilisation’, a standard that had generally been inimical to the rights and interests of the non-Western world. They did the best that they could with their imperfect tools. In particular, they attempted to read ‘civilisation’ against the grain in ways that demanded radical egalitarianism and questioned the international legality of a capitalist economy reliant on racial hierarchy and extreme exploitation. Their submissions, then, did not rely on abstract universalism or on humanitarian sentiment but on detailed expositions of labour conditions, land ownership, and state repression and on the idea that racism was not an irrational attitude or prejudice but a brutal (and unlawful) form of colonial governance and surplus extraction.
This argumentative strategy was not without contradictions. Its radical potential was constantly undermined by the sheer fact that for adjudication to proceed and for the applicants to establish a legal interest, they had to rely on the ongoing validity of the mandate and of the ‘sacred trust of civilisation’. The problem with that reliance was that it assumed that Namibians were unable to govern themselves, at least for the time being, and that they would only be able to do so if their society changed in particular ways. South Africa exploited this contradiction at the heart of the applicants’ argumentation in a move that showed that it is one thing to read legal documents against the grain and another to get a court to accept your innovative readings. During the oral proceedings, Ethiopia and Liberia moderated many of their initial arguments and dropped their more radical aspects. This lesson was not forgotten: when the Court revisited the South West Africa issue in 1971, the reasoning supporting its finding of apartheid’s illegality was much more linked to individual rights than societal structures. In a nutshell, South Africa’s policy of segregation was deserving of condemnation because it impeded the flourishing of some ‘advanced’ (read: civilised) people of colour and not because it underpinned a comprehensive system of dispossession and exploitation. The case against apartheid and open colonialism was, indeed, won but this legal victory relied on individualist grounds and abstract reasoning and not on a commitment to alter the political economy that had been built on and sustained by apartheid or to redistribute the wealth that was amassed because of it. In that respect, international law offered protection against racism and colonialism but only insofar as they were both conceptualised as a matter of individual rights and wrongs.
The world that we inhabit today is not, of course, the direct outcome of this one ruling, but the two share a common orientation. International law was, indeed, one of the methods that ensured that formal decolonisation and the end of formal racial discrimination would not result in a fundamental redistribution of resources, opportunities and incomes either within or between states. While it is true that political and economic ruling classes are now diverse in a historically unprecedented way, this diversification did not alter result in the redistributive measures necessary to meaningfully address the effects of formal racism and colonialism.
There are few areas where these fundamental inequities are more pronounced than in climate change and its cascading effects. Indeed, the extractive, ever-expanding economic system that Ethiopia and Liberia highlighted is now posing an existential threat that is disproportionately directed to those who have benefited the least under this structure. As then the matter of climate change is working its way through the channels of the ICJ, it is worth keeping in mind earlier legal battles and what they revealed about the potential and limitations of seeking to adjudicate structure injustices in international law and to bring these memories together with contemporary voices, such as that of Samoan lawyer Dylan Asafo, who remind us that, ultimately, (climate) justice demands a world beyond international law.