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Kevin Hopkins

excerpted from:   Response to Apartheid: a Historical Account of International Law and its Part in the South African Transformation , 10 University of Miami International and Comparative Law Review 241-255, 250-255 (2001-2002) (35 Footnotes)

South Africa provides the world with a very useful analysis of a dispute that was managed at both the international level as well as at a municipal level. It is also true that the dispute itself occurred on both these levels--on the International level it is evident that South Africa's indifference to human rights norms during the apartheid era displayed an extreme disregard and disrespect for the developing doctrine of international law; whilst the municipal level is characterized by the legislative authorization of large- scale human rights violations.

South Africa's contribution to the development of international law during the apartheid era was enormous--albeit unintentional. New rules developed in response to apartheid, and customary international law evolved in opposition to racist state-policy. A resourceful body of human rights doctrine was born out of this period of tragic human misery.

There is little doubt that South Africa's new commitment to human rights is a direct result of the dynamic role played by the United Nations and the consistent pressure applied upon the apartheid government by the International Community. This much was acknowledged in October 1994 by South Africa's newly inaugurated President, Nelson Mandela, in his address to the General Assembly: "Historic change has come about not least because of the great efforts in which the United Nations engaged to ensure the suppression of the apartheid crime against humanity."

South Africa's discriminatory racial policy was raised in the very first session of the General Assembly, and has since occupied a central position on the agenda of the General Assembly for more than 40 years. Denise Prevost attributes this to the fact that South Africa, unlike other human rights violators at the time, was not part of a large voting block in the United Nations. For this reason it was unable to protect its own interests. She believes this made it possible for South Africa to serve as a test case for the development of the United Nations' policy on human rights.

India was the first State to challenge South Africa before the General Assembly on apartheid generally, but in particular on her treatment of people of Indian origin. South Africa's racial policy continued to enjoy debate in the General Assembly, and in 1952 a resolution was passed which effectively created the Commission on the Racial Situation in the Union of South Africa. The Commission was mandated to investigate and report upon South Africa's racial policies. Three reports were submitted to the General Assembly by the Commission, and all three criticized the discriminatory practices of the apartheid government. The General Assembly adopted the reports in resolutions to the effect that apartheid constituted a threat to peaceful relations between nations.

At first, the large Western powers supported South Africa's challenge to the competence of the United Nations to intervene in her domestic affairs. South Africa protested that apartheid was a domestic issue, and that for this reason, it fell outside the jurisdiction of the United Nations on account of the non- intervention principle contained in article 2(7) of the Charter. But this international support disappeared after the Sharpeville massacre in 1960, when many of the world powers were morally outraged and began to view South Africa's brutal implementation of apartheid as a threat to international peace and stability. As a result of the Sharpeville incident and South Africa's persistent refusal to seriously consider the repeated concerns of the General Assembly, the question of stronger action was referred to the Security Council in terms of article 11(2) of the Charter. The Security Council was quick to deplore South Africa's racial policies and practices but no binding enforcement action was taken against South Africa because this line of action was vetoed by the three Western powers that are permanent members of the Security Council.

Pressure continued to mount against South Africa, and South Africa continued to ignore and disregard the pronouncements of the United Nations. The call for sanctions increased and, in 1962 General Assembly Resolution 1761 (XVII) was adopted. It expressly condemned racial discrimination in South Africa and called for member States to: break all diplomatic ties with South Africa; forbid their ships from entering herports; boycott all South African goods and cease exporting to her; and refuse landing rights to South African aircraft. Although resolutions of the General Assembly, such as this one, are not binding on states, it nevertheless indicated that the International Community had voiced its strong dissent to apartheid.

This same resolution also created the Special Committee on Apartheid that was charged with the task of reviewing South Africa's policies. In 1967 the Special Committee was asked to promote the international campaign against apartheid. Although the Committee received a large amount of support in the General Assembly, the Security Council was rendered powerless because of the continued veto from France, Britain and the United States. Under the circumstances, the Committee sought to overcome the problem by targeting world public opinion directly. This action was directed chiefly at those states that had maintained political, economic or cultural relations with South Africa. This course of action proved to be fairly effective. It resulted in the mobilization of anti- apartheid NGO's, large-scale sports and cultural boycotts, and increased pressure on multinationals to disinvest from South Africa. In addition to this, the General Assembly consistently denounced South Africa's apartheid policy. This has led some commentators to suggest that a customary rule of international law was created by the General Assembly's consistent and frequent condemnation of apartheid in resolutions.

In light of the increasing number of General Assembly resolutions against it, South Africa changed her tactic somewhat by no longer claiming that article 2(7) was a bar to United Nations' competence, but rather claiming that the apartheid philosophy of "separate development" was in fact in line with international human rights law. South Africa contended that the creation of the Bantustan-homelands was in furtherance of the international practices promoting the right of all people to self-determination, as enshrined in the U.N. Charter. This justification was never taken seriously by the International Community because there was clearly no true commitment on South Africa's part to honor the values that underlie the philosophy behind self-determination. This was because Black people in South Africa had been stripped of their South African nationality against their will and forced to become citizens of fictitious homelands designed to "get them out of White-South Africa." In reality the homelands had become the dumping ground of Black African people. These people had not, by any stretch of the imagination, been permitted to "freely determine their political status" as is required by Resolution 1514 (XV)--the Declaration on the Granting of Independence to Colonial Countries and Peoples, or by Article 1(1) of the International Covenant on Civil and Political Rights.

Yet the question remains: Why were the three Western powers of France, Britain and the United States blocking action against South Africa in the Security Council? The answer seems to be based on political rather than moral criteria. To isolate South Africa would have been contrary to Western interests for two main reasons: first, South Africa played a vital role in resisting communism during the cold war and South Africa used the threat of communism in Africa to gain the support of the West; and second, although it was not a member of NATO, South Africa played an important part in the Western defense system, due to its strategic position.

Yet despite the apparent ineffectiveness of the Security Council, the General Assembly continued to increase its anti-apartheid sentiment. It did this in two ways. First, the General Assembly effectively expelled South Africa from its meetings in 1974. Secondly, it used its mandate under Article 13(1)(a) of the U.N. Charter to encourage the progressive development of international law. It did this by submitting a Draft Convention on the Suppression and Punishment of the Crime of Apartheid to the members of the United Nations for ratification. The Convention came into force on July 18, 1976, after twenty states had ratified it. There are currently 101 parties to the Convention. The Convention declares that "apartheid is a crime against humanity," and it criminalizes the principal features of apartheid, namely murder, torture, and arbitrary arrests of members of one particular race group. Parties to the Convention undertake to enact municipal legislation to prosecute persons responsible for the commission of this international crime. Some commentators have argued that the Convention is merely symbolic because as a crime against humanity, apartheid confers universal jurisdiction on all States.

The year 1977 seems to have been the turning point for South Africa. The death of Steve Biko in police custody was the last straw, and after this tragic event South Africa finally lost the support of France, Britain and the United States. The veto-power barrier to the application of Chapter VII had finally been crossed. In November of that year the Security Council passed a binding resolution mandating an arms embargo against South Africa. This was the only time that Chapter VII was ever invoked against South Africa. Security Council action under Chapter VI nevertheless continued throughout the 1980's. There were resolutions calling for the release of political prisoners, the granting of clemency to political prisoners facing execution, the lifting of the state of emergency, and an end to attacks on neighboring territories.

The end of the Cold War resulted in further loss of sympathy for South Africa because the threat of communism was no longer imminent, and South Africa's strategic location was no longer a reason to afford her protection from international isolation. Crippling sanctions against South Africa were more widely implemented, and eventually the international stranglehold of repeated cumulative action forced change upon South Africa. State President FW de Klerk made the decision to dismantle apartheid in February 1990.

. . .

Since the dissolution of apartheid, South Africa has transformed itself from a pariah state to a leader in African and world affairs. Diplomatic ties have been re-established with States that refused to have anything to do with South Africa during the apartheid era. The United Nations and International Community have once again welcomed South Africa into the world of global trade, finance, sport and culture. South Africa, in turn, has indicated her commitment to the values of the International Community by signing most of the principal human rights treaties.