Opening Address by Deputy Minister Pahad for the Symposium: A Celebration of Ten Years of Democracy: A Decade in Development in International Law, 8 July 2004


I wish to thank the organisers for inviting me to open this very important symposium.
The decade of South Africa's democracy coincides with a decade of profound change in the world. The fall of the Berlin Wall in 1989 coincided with the time when changes started to take place in South Africa that would eventually result in the attainment of democracy in 1994.

1989 marked the end of the Cold War and the bipolar world order which dominated world politics since the end of the Second World War, and in its effect on history, has been compared with three other historic events: the Peace of Westphalia in 1648, the French Revolution and the advent of the idea of democracy in 1789 and the Russian Revolution in 1917.

The events of 1989 profoundly transformed world politics, diplomacy and international law. The reduction of the nuclear threat resulted in a redefinition of international security, and an increased focus on human security at the expense of the state and its physical integrity. Many believe that from the position of relative obscurity to which international law was relegated during the power-based, realist conception of world politics of the Cold War period, international law now had a better chance of being utilised to address the contemporary trans-national and international problems.

Questions such as mass migrations and refugee problems, gross human rights violations (often resulting from conflicts and civil wars within the boundaries of states), fatal diseases, interalia HIV and AIDS, international terrorism, organised crime, environmental threats, the protection of the world's common resources and sustainable development have resulted in increased interdependence between states in an increasingly complex world.

These new trans-national security threats, falling outside the exclusive competence of the state, could not be addressed by means of traditional security measures of a military nature, but called for new thinking on the policy tools to be applied: challenges like these can only be addressed by inter-governmental co-operation (through the instrument of diplomacy) and regime creation (through the instrument of international law). As the world order changed and new problems arose international law in itself had to develop in order to address these changes.

While international law rose gallantly to these challenges, new challenges to world order and security soon presented themselves: genocide in Rwanda, ethnic cleansing in the Balkans and questions relating to self-determination in East Timor. These gross human rights violations focused the attention of the international community on international law as an instrument to ensure international order and stability.

However, while international law moved with admirable speed to further develop international criminal law in an attempt to provide justice after the fact, it appears to have been ill-suited to address new questions in the international community with a legal content. To mention one example: the intense debate among international lawyers on the question of humanitarian intervention in Kosovo did not provide any clear answer as to the legality of armed intervention in case of gross human rights abuses within the boundaries of a state without a clear mandate of the Security Council. More recently the coalition of forces led by the USA and the UK invaded Iraq without a security Council mandate.

Following the end of the Cold War, US policies shifted towards unilateralism. It was during the Clinton presidency that we saw the US drift towards unilateralism and the undermining of the international system. The US refused to pay its arrears to the United Nations, refused to ratify key international conventions (International Convention banning anti-personnel landmines and the International Convention on the Rights of the Child), and came forward with a whole series of unilateral sanctions against countries that the US did not agree with (Helms Burton act and the Iran Libya sanctions act)

The Bush administration has renounced the Kyoto protocol on global warming, rejected the verification protocol to the Biological Weapons Convention unilaterally rejected the non-proliferation of nuclear weapons convention, rejected the International Criminal Court and introduced the concept of preventative action.
Soros - The Bubble of American Supremacy argues that to the neo-conservatives who influence USA policy, International relations are relations of power, not law; power prevails and law legitimises what prevails. This meeting will discuss whether Soros is correct.

Not even a superpower like the United States of America can be secure in a world where unilateralism is practice. We are happy to note that since the coalition of forces went into Iraq, those prophesising unilateralism had to go back to the security of multilateralism and the rule of law, and the United Nations Security Council to ensure that some kind of orderly handover of power back to Iraq could be effected (UNSC Res 1456). Furthermore the world was shocked by the events in Abu Ghraib Prison and the detention of prisoners in Guatanamo Bay.

There have also been consistent attempts by states not to implement their obligations under international law. The Israeli government policies in the Middle East are a case in point. Here a clear conflict developed between the dictates of international human rights law, as well as that of conscience, and the traditional law on the use of military force. The UN General Assembly unanimously agreed that the separation wall being built was a violation of international law and agreed that the matter should be referred to the International Court of Justice for a ruling.

South Africa submitted written and oral statements. We eagerly await the judgement of the ICJ tomorrow. This will have a profound impact on other violations of International law.

The international community and South Africa can never be silent if accepted international law principles are flagrantly breached. The outcry of the world is a clear indication that without international law, principles and norms the world is almost a more dangerous place than before 11 September 2001. The question with regards to the role of international law in the new millennium in respect to the role of non-state actors in world politics, which was thrust to the attention of the world by the events of 11 September 2001, is a matter that international law is developing to address.

It is sometimes said that international law is still too state-centric and rooted in outdated definitions of state sovereignty to be able to deal with challenges like these.

However, let us not forget that the creators of international law is the international community itself, states and international organisations: international law can only achieve what the primary international actors, namely states allow it to. Where there is political will, international law can become an effective tool to achieve its age-old objective: that of securing peace, order and security in the international community.


The manner in which international law over the past decade was utilised to create a new continental order, is clearly shown in the exercise of transforming the OAU into the AU and especially the Constitutive Act and the Protocol on the Peace and Security Council, where new definition and contents are given to international law concepts with a view to ensure inter- and intra-state peace and security on the continent, while the creation of the African Court and the Human Rights Court will firmly lay the foundation for the settlement of intra-state disputes by means of international law.

In South Africa the profile of international law has also been raised in the last decade. It was formally incorporated into South African law in the Constitution, and is daily being applied in the Courts, as Justice Albie Sachs will speak on today. The 1996 Constitution of the Republic of South Africa, not only incorporates several aspects of International Human Rights Law in the Bill of Rights, but also provide that customary international law is law in the Republic and that Courts when interpreting legislation must prefer on interpretation of legislation that is consistent with international law over any alternative interpretation.

One of the strategic objectives of South Africa's foreign policy is to contribute to the formulation of international law and to enhance respect for the provisions thereof, while we also believe that international relations should be rule-based and that multilateralism should be and could be the only cornerstone of global security. Another cornerstone of South Africa's foreign policy is the promotion of international human rights, especially through the multilateral fora created for this purpose.

South Africa also actively participates in the promotion of the international rule of law and supports the validity of international judicial bodies, as is evidenced by its participation before the International Court of Justice in the Advisory Opinion on the legal consequences of the construction of a wall by Israel on occupied Palestinian territory. As a principled position South Africa cannot remain silent where gross human rights violations, de facto annexation took place, as well as flagrant violations of humanitarian law, which violations destroy the lives and livelihoods of the Palestinian people. South Africa has always believe the solution of the Israeli/ Palestinian problem is dialogue and the two state solution and cannot just remain silent where it is clear that certain actions, such as the case before the ICJ can help Parties to reach an agreement.

This symposium, hosted by the Office of the Chief State Law Adviser (International Law) in the Department of Foreign Affairs on a decade of developments in international law is a further example of the Government's commitment to the enhancement of the role of international law and the rule of law in the conduct of South Africa's foreign relations. We invite this meeting to assist us to meet these challenges.

Thank You.

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