South Africa's Treaties in Theory and Practice (review)

There is a certain irony in the substance of this book: before 1994, the idea that South Africa had treaties was both irrelevant and bad humor. As an outlaw nation, these treaties would have been largely without meaning. But as South Africa takes its place as a major player in international law, a leading African nation, and a global leader in human rights law, the long history of treaties in South African law becomes not only relevant, but important. Treaties are international agreements, roughly analogous to contracts, in which nations voluntarily agree to meet specified conditions in return for some perceived benefit.

South Africa's Treaties in Theory and Practice is primarily a reference book. Of its 859 pages, 730 are given over to a simple listing of South Africa's treaties, called "Chronological Listing of Treaties," and to an index of that chronology. This is important material, but it can be used only for reference. For obvious reasons of space, none of the texts of those treaties is included, and any reference to the provisions of a treaty will require locating the treaty and referring to its text.

The first 120 pages are an introduction to South Africa's treaties. This part of the book is divided into four sections, three corresponding to the three major governments that entered into these treaties, the fourth section publishing synopses of selected treaties. The first discussed are the British colonial treaties. These are perhaps the most interesting and important because they locate South African colonial law within the context of the British Empire and its colonial law, including treaty law. Many of these treaties were entered into with the various native nations of South Africa. These treaties exist within a substantive interpretive framework because the British colonial enterprise carried with it a well-developed legal order, and was expanded through a system of treaty-based colonialism, in which the United Kingdom established and expanded its political domination over indigenous peoples by negotiating treaties. The British South African treaties negotiated in the Cape Colony, Natal, and even Namibia, were completely framed within this broad colonial context and need to be analyzed, politically and legally, within this tradition.

Next are the treaties of the Boer republics. These are also interesting and, like the British colonial treaties, many also enter into agreements with native nations. Unlike the British treaties, the Boer treaties may have "lapsed" under the "clean slate theory" (p. 21), when Great Britain incorporated the Orange Free State and the South African Republic into South Africa. But given that a successor-state ordinarily assumes the obligations of a state that it incorporates, this point should not be easily conceded.

Finally, and most detailed, are the treaties of the South African state itself, running from 1910 to 1998. They are voluminous and deal with the entire range of issues that modern states make treaties over: economic and trade agreements, extradition agreements, defense agreements.

The immediate issue, given the de facto suspension of many of these treaties during the apartheid era, is the extent to which any of these treaties might structure the law of the new South Africa. There is no question that the modern South African state must recognize its obligations under these treaties, assuming only that the treaties are valid, and still in force. Indeed, Article 148 (1) of the South Africa Act of 1909, which created modern South Africa from the four colonies that constitute it, provides that "all rights and obligations under any conventions or agreements which may be binding on any of the colonies shall devolve upon the Union at its establishment" (p. 63). By this language, it is clear that the treaties of Natal and Cape Colony, as well as those of either of the Boer republics that might have survived British incorporation, were recognized by the modern South African state. This article is inconsistent with the "clean slate theory...