Massacre and violence are not new in South Africa. The gunning down by the police of hundreds of unarmed people in the streets of Sharpeville and Soweto is a direct continuation of shootings into crowds at Port Elizabeth, Queenstown and Pretoria, in the gold mines and in Namibia, over the decades since the Union of South Africa was created in 1910. The Union itself was preceded by a bloodbath in Natal when thousands of Africans resisting the imposition of new taxes and controls were killed by cannon and machine gun fire and hundreds more publicly flogged till their backs were torn. In fact the racial supremacist State in South Africa was and continues to be the product of violence - the violent conquest of the indigenous peoples, the violent destruction of their societies and usurpation of their land, the violent incorporation of the mass of the population into a fiercely exploitative economic system, and, finally, the violent suppression of campaigns by the people to liberate themselves from overlordship.
South Africa is of course not unique in having been founded in violence, but whereas in other States the founders have attempted to create a common nationality and a common citizenship, in South Africa they elevated concepts of conquest and legal inferiority into constitutional principles given explicit governmental form. The Act of Union of 1910 accorded almost exclusive sovereignty to a racial minority and organised the institution of power around the principle that there existed in the land a superior people endowed by God and history with the right to control the destinies of their fellow countrymen and countrywomen. Since that time there have been shifts in the name given to this policy - called variously segregation, trusteeship, apartheid, separate development and separate nationhood - but changes in the rationalisation have not reflected changes in the colonialist essence. The pervasive, structured and enduring quality of the system of race domination in South Africa needs to be stressed, since from it flow three important consequences, each of which will be discussed in turn:
Violence by the State is a Permanent and Necessary Feature of Apartheid
In South Africa the state system - the machinery of law, police and prisons - is used simultaneously to force the whole population into a single, highly exploitative economy, and then to exclude 80 per cent of the population from control of the land and its resources. This is done by formally reserving political, trade union and social rights to the minority: where government does not even claim to proceed by participation and consent, it must necessarily rule by coercion. In the face of the just claims of the people for self-determination and a share in the wealth of the country, the State of necessity resorts to violence to protect the privileges of the minority.
An unjust system cannot be administered in a just way. Nor does it contain within it the institutions for a just resolution of conflicts. Massacre, torture and wholesale and systematic destruction of communities, the depreciation of peoples and their history and culture are predictable, necessary and chronic. The exact timing and locality of a Sharpeville or a Soweto may depend on the operation of chance factors, but there is necessity lurking behind the accidental, an inherent oppressiveness that dictates the repeated recurrence of these cruel disasters.
In South Africa it is the State itself that regularly and inevitably kills defenceless people in the streets and fields, the state that robs citizens of land and cattle, that bulldozes peoples’ homes, that forcibly evicts huge populations from their birthplaces and that utilises its police forces as an army of occupation, complete with curfews and documentary controls. Half a million people are received into the state prisons each year, hundreds are flogged by judicial order, and between 50 and 100 executed by hanging. Apart from those killed when police fire into crowds, about 100 people lose their lives annually to police bullets as “fleeing suspects.” State officials, including magistrates and judges, acting in the name of State policy and legislation, deport families from one part of the country to another, forcing husbands and wives apart, and turning children into orphans while their parents live. The educational system is totally segregated and children are taught to despise the history and culture of the majority - a history and culture that the State first depreciates and annihilates and then resurrects in a parodied form.
So there is no lack of law in South Africa, but the law that exists is a law that protects the racist State in its violence against the people. The law expressly denies fundamental rights and freedoms. It reserves 87 per cent of the surface area of the country for the permanent ownership of the dominant racial minority, it forces the rest of the population to live in reserves, locations, compounds and ghettos, it allocates each individual to a particular racial group with differential rights and duties, it controls the movement and residence of workers and it denies to the voteless and dispossessed majority the right even to campaign for basic rights.
South Africa demonstrates that there can be crime and injustice through the law, and does so in two ways: first, various official enactments “legalise” the implementation of the cruel apartheid programme, authorising officials of State to dispossess and humiliate citizens on a massive scale, as well as to use force to repress those who resist; second, when State officials act outside even the wide authority given to them, and indulge in massacre and torture, laws are passed to grant blanket indemnity to those responsible.
Thus, after the killings of unarmed people, including scores of young children in the streets of Sharpeville and Soweto, it was not those responsible for the massacre who were brought before the courts, but the survivors, the main evidence against them being that they had bullet wounds. Similarly, there are more than 50 known cases of political detainees who died while in the hands of the security police, with most of the bodies showing terrible injuries on medical examination, yet not a single policeman has been punished for these deaths, and many have been promoted. In fact, torture of political suspects has become so systematic and widespread, with torture squads flying from police headquarters to all parts of the country, that there can be no doubt that it is a part of officially sanctioned policy. What is involved is more than a mere cover-up, or wilful ignorance, it is the deliberate instigation of torture from the Government itself (as is proved by the close working relationship until last year between B.J. Vorster first as Minister of Justice and then as Prime Minister, with H.J. van den Bergh, head of the Security Police).
The Violence of the Racist State Necessarily Extends Beyond its Borders
Colonialism-type violence does not respect frontiers. In the period of conquest it justified itself in the name of advancing civilisation; today, it justifies itself on the grounds of defence against barbarism. What begins as small-scale incursions by police into neighbouring countries extends itself into kidnapping, assassination, bombing and massacre. On the pretext of fighting for survival, it commits atrocity after atrocity.
The world community, through the United Nations, has recognised the international dimension of the system of racial repression in South Africa and condemned apartheid as a crime against humanity. It has firmly rejected the contention that apartheid is a purely domestic matter, on the grounds both that apartheid is abhorrent to mankind, so inconsistent with fundamental norms recognised by all humanity, that it needs to be legally stigmatised in the same way as piracy, slavery and genocide have been in the past, and that apartheid necessarily threatens peace, not only in southern Africa, but in the whole continent and the world. Resolutions of the United Nations have repeatedly drawn attention to the inherently aggressive nature of apartheid. It is a tribute both to the perspicacity of that body, and to its limitations, that what it condemned as far ago as the 1940s and 1950s as a potential threat to peace has in the 1960s and 1970s transformed itself into visible and extensive violation of peace.
In the past decade the army of the racist regime has been transformed into a striking force prepared to attack countries as far north as the equator. A giant military air-base has been constructed in the north-eastern Transvaal, and staging post facilities organised in Malawi, 1,000 miles to the north. It is no accident that the person chosen to succeed B.J. Vorster as the new Prime Minister of the racist regime should have been the Minister of Defence, P. J. Botha, personally responsible for organising the invasion of Angola and the Kassinga massacre, as well as for the build up of racist troops in Namibia.
What has emerged is a dual strategy for the defence of apartheid and colonialism in southern Africa, and with it a dual threat to peace. In the first place, direct physical aggression against opponents of the apartheid regime, whether inside or outside South Africa’s borders, whether refugees, freedom fighters, neighbouring civilians, or neighbouring Governments; and in the second place, the creation by corruption and intimidation of collaborationist regimes dependent for their survival on racist South African arms and money, and committed to indefinite repression of people and civil war. The attempts, with foreign aid, to equip the racist forces with nuclear weapons, adds a particularly grave dimension to these trends.
The Violence and Aggression by the Racist Regime both Internally and Externally Can only be Eliminated by the Total Dismantling of the Apartheid System and its Replacement by a new, Non-racial Democratic Society
What is at stake in southern Africa is not whether this or that individual is Prime Minister or whether park benches are segregated, but the whole character of the society. Is it to be based on a continuation of racism, privilege and exploitation, or is it to be based on the principle of power belonging to the people? Only a correct characterisation of the nature of the racist regime can lead to a correct solution, without which the massacres, tortures and indignities will continue, whatever constitutional description may be given to new political arrangements. Just as none today would argue that slavery should have been ameliorated rather than abolished, or colonialism should have been democratised rather than dismantled, so none should contend that apartheid, an inherently cruel and oppressive system, should be liberalised
In that sense, the basic struggle in southern Africa is not for civil rights (though it includes this), it is a struggle to reconstitute society on totally new principles, to eliminate completely the existing systems of exploitation and privilege, to eradicate once and for all racial domination in any form. And in that sense, too, the international community has not only the legal right but the legal duty to support the attempts being made to overthrow apartheid and replace it with a non-racial democratic society.
What is involved is not the absorption of a small élite into the existing system of exploitation, or even a form of power sharing between different racial groups, but the abolition of race as a constitutional and political principle. What needs to be guaranteed is not rights for minority or majority groups, but rights for citizens. Cultural diversity can remain, even be encouraged, but only in the context of equality of political rights. True equality presupposes that the whole system of racially reserved land-ownership and economic control be abolished, and along with it the systems of locations, pass laws and migrant labour. The massive and institutionalised inequalities in health, learning, accommodation, sports and access to leisure will also have to be ended. It is not just racism that needs to be abolished, but privilege. Society must be reorganised, sovereignty must belong to the whole people, both in form and in fact.
Without these drastic measures, there will always be violence in southern Africa.
Massacres in the streets and over the borders grow out of racism, and
racism grows out of national and economic exploitation. Only by ending the legal
and economic structures of exploitation can racist violence be eliminated.
“State terrorism” has been carefully and deliberately omitted in the numerous treaties and conventions on terrorism that have been concluded by various States from the early 1970s to the present time. The reasons usually advanced for this are that the use of terror against their own populations by some governments is better considered under and covered by international human rights law than international law pertinent to terrorism. And yet as is now universally admitted, the worst form of terrorism is that by a group of individuals in control of the coercive apparatus of a State, using the latter as a weapon of violence and repression against some or the majority of the inhabitants in the territory under its control. As the preamble to the draft Convention on International Terrorism presented by the relevant Committee to the fifty-ninth Conference of the International Law Association declares, “international terrorist offences violate human rights as protected by international law.”
The greatest acts of terrorism in modern times are those perpetrated by men in government against their own citizens. The worst cases include (a) the Nazi regime of Germany; (b) the Amin regime of Uganda; (c) the apartheid regime in South Africa; and (d) various regimes in Latin America. As one commentator has rightly stated with regard to South Africa, terror is not simply the means for attaining the ends of apartheid. “In reality, the terror, whatever the intention of its perpetrators, is also the true apartheid, perhaps its most indestructible component, on which it is depended for its continuation.”
The same writer further described the vicious cycle of apartheid and terror in these words. “So calamitous an order and system as apartheid has a self-fulfilling momentum of its own, a relentless need for victims. It creates its own opportunities for a show of force and thrives on additional excuses for more than intimidation and curtailment.” In other words, apartheid feeds on terror to sustain it and keep it alive. Terror and apartheid are therefore synonymous.
Racial discrimination and apartheid are employed principally for the purpose of the social, economic and political exploitation and oppression of the black and overwhelming majority in the territory of South Africa for the benefit of the white minority. As Wilmot explains in his book Apartheid and African Liberation, such exploitation and oppression are made possible by the total militarisation of the white society against the black majority. “Without terror then apartheid cannot be maintained.” Therefore in order to maintain and sustain apartheid, the South African Reich has turned all its awesome military and police power on the people of South Africa itself. Hence the condition in South Africa is aptly described as one of permanent State terrorism.
State terrorism, directed by the white settlers against the black majority is not a modern phenomenon. It has been employed right from 1652, when Jan Van Riebeeck led a group of white immigrants from the Netherlands to settle in the extreme southwest of what is now South Africa. The inhabitants of that part of South Africa, the Khoikhoi and the San, were soon systematically dispossessed of their lands and livestock by the settlers, who used their superior armed force to crush any resistance. Regular acts of military devastation and liquidation resulted in the depopulation of the indigenous inhabitants of the area and further ingress inland by the white settlers. Despite the heroic resistance put up by the various indigenous groups such as the Zulu, the Xhosa, the Sotho and the Tswana led by legendary figures such as Shaka, the Zulu Chief, the armed might of the settlers proved too superior in the end, and the indigenous majority was progressively crushed and then reduced to a state of slavery and destitution in its own land for the psychological satisfaction and material well-being of the white minority settlers.
This state of affairs has continued basically unchanged until the present. All that has been happening is the progressive modernisation of the system of exploitation, deprivation and repression by the increasing employment of legal, coercive and technological weapons. It is significant that the entry of the British into the colony in 1806 did not entail any improvement in the condition of the oppressed indigenes. On the contrary, after the British had defeated the Dutch settlers in their struggle for supremacy in 1902, both groups united to consolidate the exploitation and repression of the black and indigenous majority. This state of affairs has been maintained by the use of armed force and terrorism against the Africans ever since. This paper attempts to document some of the numerous forms in which such State terrorism has been made manifest in its obsessive mission to destroy, devastate and dehumanise the African majority for the glory of the white settler minority.
The contents of this paper, which is a very brief summary of the violence, repression and brutal exploitation inflicted by the white, racist South Africa, against the black peoples of the territory, particularly the majority African population, are well known to the international community. What this paper has endeavoured to demonstrate is that this type of terrorism, in which a group of people (whether based on racial lines or party affiliation) who are in control of the coercive apparatus of a State, direct these weapons against the inhabitants of the very territory under their control in order to maintain their tyrannical hold of the humiliated and exploited people, is by far the worst type of terrorism. The international community must therefore not relent in its efforts aimed at dislodging the terrorists in Pretoria, in bringing about the attainment of self-determination, political, civil, social and economic rights for the people of South Africa as a whole.
by Kader Asmal
One of the most striking aspects of legal developments at the international level in the past 20 years has been the development of norms to outlaw and combat racial discrimination. The United Nations has played a major part in such an evolution, but this is not to exclude the contribution of certain States and their constitutions which in theory and practice forbade racialism. The combating of theories of racial superiority has also been part of the struggle against colonialism and alien domination since colonialism and imperialism have been, in the last resort, justified by those who profit from economic exploitation by “theories” based on racial, ethnic and cultural superiority.
As long as international society was dominated by those forces and States which utilised military force to suppress the desire for independence, emancipation and freedom of subject peoples, so long did the provisions and spirit of the Charter of the United Nations and the Universal Declaration of Human Rights remain a dead letter. But once the balance of forces in the world community began to change, there was first of all the recognition of the political fact that “any doctrine of differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination either in theory or in practice.” This statement in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination adopted by the General Assembly in 1963 was given legal form when the Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination in 1965. The 1965 Convention, not only calls for an end to racial discrimination in all its forms, but for the first time establishes international machinery to oversee the observance of its provisions.
Respect of human rights and fundamental freedoms and the practice of racial discrimination are incompatible. The adoption by the General Assembly of the two Covenants of 1966, apart from concretising the Universal Declaration of Human Rights, gave expression to the fact that the persistent denial of basic human rights by a State is a potential threat to international peace, security and co-operation. As one commentator puts it, “Contemporary international law proceeds from the fact, and this is exceedingly important, that a close link exists between a State’s ensuring basic human rights and freedoms and the maintenance of international peace and security. This link is stressed in many international conventions (particularly the Convention on the Elimination of All Forms of Racial Discrimination and the covenants on human rights), and in United Nations resolutions.”
However, the situation arising out of the polices of apartheid is fundamentally different from “ordinary” racism because the policy of apartheid permanently denies, through the laws, administrative decrees and practices of the racist regimes of South Africa, any role for the 19 million blacks in that country and confers on the 4.5 million whites a monopoly of economic, political and social power. It is to the General Assembly of the United Nations that we must turn in order to evaluate the response of the international community.
The United Nations concern with the racialist policies of the regime in South Africa is of long standing, the General Assembly having first dealt in 1946 with complaints of racial discrimination against the people of Indian origin in South Africa at the request of the Government of India. Since 1960, with the newly independent African States in the vanguard, the tenor of the General Assembly’s response to the persistent, systematic and gross violations of national and human rights has undergone dramatic changes.
In the period from 1946 until 1960, the General Assembly was content to censure and appeal to the Government of the Union of South Africa over its policies, notwithstanding South Africa’s invocation of Article 2 (7) of the Charter of the United Nations concerned with domestic jurisdiction. The first major shift in the international legal order brought about by the Charter was in the field of self-determination and the systematic violation of human rights; where these are a matter of State policy, they are automatically lifted from domain reserve and regulated by international law and the United Nations.
Since 1960, the General Assembly and the Security Council have moved from general to specific resolutions requesting States Members of the United Nations to take separate and collective actions against the South African regime, culminating in resolution 418 (1977) of 4 November 1977, whereby the Security Council unanimously imposed a mandatory arms embargo against South Africa under Chapter VII of the Charter, the first time in the history of the United Nations that such an action was taken under Chapter VII of the Charter against a Member State.
The change in the tone and context of these resolutions and other activities of the United Nations, in the specialised agencies and in major and subsidiary organs was originally due to the admission of 16 newly independent African States to membership of the United Nations at the fifteenth session of the General Assembly in 1960. This substantially altered the composition and balance of power in the General Assembly and gave added impetus to the growing demand for a speedy and unconditional end to colonialism and a frontal assault on racialism and apartheid. Until 1960, the West’s “mechanical majority” in the General Assembly had stifled any far-reaching initiative from socialist and progressive States.
The fact that the apartheid regime has become more repressive and even stronger in this period and has carried out extensive acts of serious aggression against neighbouring countries such as Angola and underwritten in economic and military matters the illegal regime of Ian Smith in Zimbabwe is due more to South Africa’s principal allies in the West refusing to carry out these resolutions, refusing to acknowledge the development of new norms and, in particular, blocking the invocation of Chapter VII of the Charter for the imposition of full economic and diplomatic sanctions against South Africa, than to the inherent merit or relevance of these resolutions.
Through these resolutions and other legal developments, the international community has recognised that the apartheid system and the situation in South Africa are special cases, requiring exceptional responses both from the world body and from international law. This period has seen the clarification and confirmation of principles contained in the Charter and the development of new rules of international law and practice within the organs of the United Nations, reflecting the new balance in the political, economic and social forces within the world community which evoked a grudging response from those States and commentators who had implicitly considered international law to be the preserve of the metropolitan and imperial Powers.
The linking of racial equality with decolonisation and self-determination, the development of the non-discrimination, the acceptance of the principle of self-determination as a clear rule of international law, the recognition of apartheid as a crime against humanity (first affirmed by the General Assembly in 1965), the recognition of the legitimacy of the use of all possible means of struggle by the oppressed people to overthrow apartheid and racialism and the use of the rules of procedure of the General Assembly to refuse to acknowledge the right of the representatives of the racist regime to represent South Africa, are examples of the ways in which the General Assembly and the United Nations have dynamically attempted to isolate South Africa.
The most dramatic culmination to this legal course of events is seen in General Assembly resolution 3411G (XXX) of 28 November 1975, adopted by 101 votes to 15, with 16 abstentions. It contained a major innovation in paragraph 6, where it stated that “the racist regime of South Africa is illegitimate and has no right to represent the people of South Africa.” It also recognised the national liberation movements of South Africa as the “authentic representatives of the overwhelming majority of the South African people.” The following year, in resolution 31/6 I of 9 November 1976, the Assembly reaffirmed “the legitimacy of the struggle of the oppressed people of South Africa and their liberation movements, by all possible means, for the seizure of power by the people and the exercise of their inalienable right to self-determination.”
South Africa’s major trading partners have generally voted against these kinds of general resolutions in previous sessions. On resolution 3411G (XXX), there were some interesting reasons provided in explanation of their votes. Some Western countries that voted against the resolution denied that apartheid was a self-determination issue since the whites were South Africans living permanently in that country and self-determination was relevant only to such colonial situations as Namibia and Zimbabwe. Others opposed the reference to the “seizure of power” by the liberation movement and rejected the reference to “authentic representatives” since a State authority carrying out the functions of government existed in South Africa.
These observations from the Western States raise very important questions. In conventional terms, the apartheid regime fulfils the now accepted criteria for statehood and, therefore, for recognition by other States. Such criteria were laid down in the Montevideo Convention on the Rights and Duties of States (1933) which is generally accepted as reflecting, in general terms, the requirements of statehood under customary international law. Article 1 of the Convention lays down that:
“The State as a person of international law should posses the following qualifications: (a) a permanent population; (b) a defined territory; (c) Government; (d) capacity to enter into relations with other States.”
The argument against investing the regime in South Africa with the capacity to speak on behalf of its population turns on the fact that its very basis denies the vast majority of the population a rightful place in the political, administrative and economic life of the community which it purports to represent. Other Governments may suppress and outlaw opponents; South Africa denies 80 per cent of the population the minimal rights of citizenship strictly on the basis of colour.
For, in terms of international law, the South African apartheid system is in breach of a new rule of non-discrimination recognised by the International Court of Justice in the Namibia case and clearly enunciated by Judge Padilla Nervo in his separate opinion when he said that:
“Racial discrimination as a matter of official government policy is a violation of a norm or rule or standard of the international community.”
White South Africa, with its policy of apartheid, breaks international law; its internal policies are akin to colonialism, with the difference that the colonists actually reside permanently in the territory itself. With the assimilation of the norm of racial equality to self-determination, the denial of collective human rights in South Africa has been and remains a matter of self-determination.
In the treaty practice of the United Nations, it is important to note that this customary rule of “non-discrimination” identified by the World Court is closely associated with the right of self-determination. The preamble of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965, specifically refers to the condemnation of “colonialism and all practices of segregation and discrimination associated therewith” and invokes the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 in support. But even more concretely, both the International Convention on Economic, Social and Cultural Rights and the International Convention on Civil and Political Rights, although they are concerned primarily with individual rights, begin the catalogue of human rights by reference to collective rights whereby: “All people have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Ratifying States undertake the further and important obligation to “promote the realisation of the right to self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”
Since this right of self-determination is not a right established by the Covenants or even by the Charter and therefore is part of customary international law, what then is the basis for describing the apartheid regime as “illegitimate”? To provide the answer, we must turn to the nature of the apartheid system itself.
A constitution is usually the basic document that describes the fundamental legal and political structures and assumptions within a State. South Africa’s constitution is an avowedly racist document which, like its predecessors, is remarkable in specifically excluding blacks from taking seats in Parliament and in conferring the right to vote on racial grounds. “From the start,” as one writer has described South Africa’s constitution, “it went beyond merely sanctioning or condoning racism and it expressly stipulated that South Africa should be a racist State founded on principles of minority rule.”
Under the Republic of South Africa Constitution Act, 1961, full legislative sovereignty is vested in Parliament and only whites are eligible to be members of the Senate and the House of Assembly. Only a “white person” can become President or Minister. By statute only whites may vote for the Assembly.
Nothing reflects the colonised status of the blacks better than the constitutional status of the African majority which is found in section III of the Republic of South Africa Act: “The control and administration of Bantu affairs ... shall rest in the State President.” According to this provision:
“Two separate systems of Government exist in the one country. The first consists of a Parliament and Ministers in an independent State accountable to a white electorate. The second is a system of rule over a rightless and subordinate black majority by a white administration which disowns a common citizenship. By their own theory and law, the rulers of South Africa treat the majority of the population as a separate and alien people.”
The characteristics of the South African system of oppression and exploitation have been described by South Africa’s revolutionary movement as internal colonialism because it “is based on the historical analogy of the classic imperialist-colonialist situation in which the ruling class of the dominant nation owns and control the colonial territory, and uses its instruments of force to maintain its economic, political and military supremacy against any would-be external competitors. All are agreed that in such a situation the elimination of direct foreign control is item one on the agenda of the struggle.”
The real nature of the colonial-type society in South Africa is described by the African National Congress of South Africa as follows:
“South Africa’s social and economic structure and the relationships which it generates are perhaps unique. It is not a colony, yet it has, in regard to the overwhelming majority of its people, most of the features of the classical colonial structures. Conquest and domination by an alien people, a system of discrimination and exploitation based on race, techniques of indirect rule; these and more are the traditional trappings of the classical colonial framework.
“Whilst at one level, it is an independent national State, at another level it is a country subjugated by a minority race. What makes the structure unique and adds to its complexity is that the exploiting nation is not, as in the typical imperialist relationship, situated in a geographically distinct mother country but is settled within its border. What is more, the roots of the dominant nation have been imbedded in our country for more than three centuries of presence.”
The establishment of the bantustans shows very clearly the colonial nature of the society there. Although (white) aliens may aspire to full South African citizenship, Africans born and bred in South Africa may never do so and must carry passports of allegedly independent “States” such as the Transkei. On the assumptions of the racist South African Parliament, the bantustans (of which there are to be nine, two of which have now been declared “independent”) were anxiously portrayed as consistent with the international principles of self-determination. However, these manoeuvres did not confuse international public opinion which very quickly identified the colonialist and racist purposes behind the partitioning of South Africa.
International opposition to the establishment of bantustans was spearheaded by the General Assembly which in 1975 opposed the setting up of the bantustans and associated such opposition with the eradication of apartheid and the exercise of the right of the African people to self-determination. Simultaneously with the fraudulent “independence” of the Transkei in 1976, the General Assembly adopted a resolution which affirmed the territorial integrity of South Africa and opposed the attempt to dispossess the African people of South Africa of their “inalienable rights” passed by the remarkable majority of 134 votes to none, with the abstention of the United States.
This resolution also made a signal contribution to the law and practice relating to the recognition of States because it called upon “all Governments to deny any form of recognition to the so-called Transkei and to refrain from having any dealings with the so-called independent Transkei or other bantustans.”
No State, apart from South Africa, has recognised either the Transkei or Bophuthatswana. The apartheid regime, by its own acts, has shown that the description of the South African system as colonialism of a special type based on racial hegemony is an apt one.
The total exclusion of the African majority from political power has meant that the white legislature has used state power in the interests of the whites. One of the first acts of the white Parliament was to pass the Native Land Act of 1913 which reserved nearly 90 per cent of the land of South Africa for white occupation and ownership and excluded Africans from having any property rights over this part of their territory. The reservation of jobs for whites; the institution of a special kind of education of Africans, described as Bantu Education”; the rigorous application of the pass laws against Africans only; influx control and the denial of a right of free movement and of residence to Africans; the herding of millions of Africans into townships and the implementation of the Group Areas Act in a malicious and racial manner; the use of legislative power to ensure that white children and students not only have free and compulsory education but also that the State spends 10 to 12 times the amount of money on the education of a white child as compared to a black child; all these examples demonstrate how State power is used for the benefit of the whites. Out of the depths of a degraded philosophy of racial purity and superiority, which is used to justify white exploitation of blacks, come also the obscenities of a race classification system and the forbidding of sexual relations across the colour line and the banning of “mixed marriages.”
The catalogue of institutionalised and formal oppression - unparalleled in history - cannot end without reference to the fact that the machinery of coercion and repression (the army, the police and the administration) operates in relation to the black population just as a colonial army of occupation does.
In 1963, the formation of the Organisation of African Unity provided a further impetus for the external opposition to apartheid and racism and the rapid recognition of the role of the organisation is one of the great political facts of our day. The organisation at its establishment was committed to the overthrow of the apartheid State, and soon made an impact on the practice and procedures of the United Nations.
From condemnation and criticism, the international community began to mobilise itself to action against the apartheid system. The regime’s representatives were either expelled or suspended or withdrew from various international organisations; both the Security Council (which first became seized of the apartheid question in 1960 following the massacres at Sharpeville and Langa) and the General Assembly began to pass resolutions recommending action against the regime, and the establishment in 1962 of the Special Committee on the Policies of Apartheid of the Republic of South Africa (subsequently designated, significantly, the Special Committee against Apartheid) gave added impetus to a co-ordinated United Nations response.
While it is generally accepted that binding enforcement action against South Africa could only be taken under Chapter VII of the Charter of the United Nations by the Security Council, the General Assembly’s activities on a wider front began the evolution of new rules of international law which, in the words of one distinguished judge of the International Court of Justice, resulted in the turning of a “page of history.” From 1962 onwards, after the General Assembly had passed, by an overwhelming majority, its now famous resolution on economic, military and other sanctions, Member States in progressive countries took unilateral measures to break links with the apartheid regime; some had done so earlier.
Developments in treaty laws, a more realistic interpretation of the provisions of the Charter in keeping with changes in the world community and changes in international customary law, have added new dimensions to the apartheid situation. Conventional international lawyers and those States that profit from super-exploitation of apartheid can no longer hide behind rigid and outdated formulae which mask the needs and demands of hegemonic politics and self-interest.
Resolutions of the General Assembly, and recommendations of the Security Council not falling under Chapter VII of the Charter, have played a crucial role in the development of new norms of international law. Although resolutions may not directly create legal obligations, they have on occasion had considerable significance for legal questions; they may be cogent evidence of State practice and the opinio juris sive necessatis, the conviction that translates practice into custom. But more importantly, resolutions on a particular subject may provide authoritative interpretation of the Charter of the United Nations, and this could be binding per se. This is accepted now even by those who are antagonistic to the “legislative” role of the United Nations or the speedy development of new rules of international law. The final word rests with the International Court of Justice where it was stated that:
.”..it would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific areas, within the framework of its competence, resolutions which make determinations or have operative design.”
The historic Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly in 1960, regards the principle of self-determination as part of the obligations stemming from the Charter and is in the form of an authoritative interpretation of the Charter. The principle has been incorporated in a number of international instruments and associated with the International Convention on the Elimination of All Forms of Racial Discrimination of 1965. More than that, the principle of self-determination now forms part of the jus cogens, certain overriding principles or imperative norms of international law “which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent norm of contrary effect.” The International Court of Justice, in giving examples of these “peremptory norms” which form part of the jus cogens, described these obligations as being obligations “towards the international community as a whole” and added:
“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including the protection from slavery and racial discrimination.”
The norm of “non-discrimination” as adopted by the International Court of Justice was explained by Judge Ammoun in the Namibia opinion as the struggle for racial equality, and, it may be implied, as a collective right belonging to a group, when he said:
“The equality demanded by the Namibians and by other peoples of every colour, the right to which is the outcome of prolonged struggles to make it a reality, is something of vital interest to us here, on the one hand, because it is the foundation of other human rights which are no more than its corollaries, and, on the other hand, because it naturally rules out racial discrimination and apartheid, which are the gravest of the facts with which South Africa... stands charged.”
There can be little doubt that the norm of non-discrimination forms part of international law and binds all States and entities which form part of the international community. The illegitimacy or defective status of the South African regime does not mean that it is not accountable in international law for its violent, racist and evil policies, for as the World Court has said: “Physical control of a territory, and not sovereignty or legitimacy, is the basis of State liability for acts affecting other States.”
The provisions of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 are aimed at combating racial discrimination within the territories of parties to the Convention but its wider significance has already been referred to. The Convention addresses itself to the obligation of States to “condemn racial discrimination” and “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” These articles provide a sufficient legal warrant or basis to insist that States parties to the Convention should not permit representatives or agents of the South African regime in the economic, special or sporting fields to establish links with their South African counterparts since the later practice apartheid. In particular, permitting the placing of obnoxious and insidious propaganda advertisements by South African embassies in Western countries would certainly be in breach of article 4 of the Convention.
The further development at the level of international treaty law has been the adoption by the General Assembly in 1973 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, which entered into force in July 1976 and by August 1978 had been ratified by 40 States.
The Convention is of course binding on those States that have ratified it but the principles and rules that the Convention lays down are of more general application arising as they do out of a specific rule of international law which forbids the denial of individual and collective human rights as a matter of state policy solely on the grounds of race. The importance of the Convention is that it illustrates what international law had already laid down, the principle of individual responsibility for crimes against humanity which was clearly enunciated in the judgement of the Nuremburg International Military Tribunal during the trial of Nazi war criminals in 1946, when it laid down that:
“Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
There is no doubt whatsoever that the Nuremburg Principles form part of customary international law, independently of treaty law.
The Convention in article I describes the inhuman acts resulting from the policies and practices of apartheid” as crimes violating the principles of international law and the purposes and principles of the Charter and, most importantly, as constituting a serious threat to international peace and security. Article II describes the “crime of apartheid as including the polices and practices of racial segregation and discrimination as practised in southern Africa and states that the term shall apply to certain itemised acts described as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them. It is interesting to note that the acts constituting the crime of apartheid follow the description of acts of genocide, which point is acknowledged in the preamble to the 1973 Convention which observes that: “in the Convention on the Prevention and Punishment of the Crime of Genocide, certain acts which may also be qualified as acts of apartheid constitute a crime under international law.”
Apartheid legislation and practice, in many of its aspects, would already be in breach of the rules laid down in the Genocide Convention. As with this Convention, the 1973 Convention imputes individual criminal responsibility irrespective of the motive involved, to individuals, members of organisations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State” and such responsibility is incurred for the commission, participation, conspiring or incitement of the acts or the aiding, abetting, encouragement or co-operation in the commission of the crime of apartheid.
Jurisdiction is conferred on a universal basis to any tribunal of a State party to the Convention or to any international penal tribunal which has been conferred with jurisdiction. Now that the Convention is in force, it has become an urgent task to draw up a register of persons, from the highest echelons of the State machinery in South Africa to the murderers and torturers of the police force, who have been responsible for committing crimes as defined in this Convention.
The seriousness with which the international community treats crimes against humanity is illustrated by the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 1968, which, in the preamble, describes war crimes and crimes against humanity as “among the gravest crimes in the international law.” Article I lays down that no statutory limitation shall apply to certain crimes “irrespective of the date of their commission” and specifically assimilates “inhuman acts resulting from the policy of apartheid” to “crimes against humanity.” The Convention reiterates the Nuremburg principle of individual responsibility by emphasising that its provisions apply to “representatives of State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.”
Self-determination and independence have not always been achieved by peaceful means in the history of States. For a number of years, beginning in 1965, General Assembly resolutions have recognised the legitimacy of the struggle of peoples under colonial rule to exercise their right to self-determination and independence and States have been “invited” to provide material and moral assistance to the national liberation movements in certain colonial Territories. Such resolutions have also been passed in relation to Namibia and South Africa.
At its twentieth session in 1965, the General Assembly, for the first time, recognised “the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence” and at the same time it invited “all States to provide material and moral assistance to the national liberation movements in colonial Territories.” The following year, the General Assembly went one step further and stated that the preservation of colonialism and its manifestations, including racism and apartheid, were incompatible with the Charter and the declaration on decolonisation. It further declared that the continuation of colonialism threatened international peace and security and that the practice of apartheid, as well as all forms of racial discrimination, constituted a crime against humanity, and repeated the request to provide assistance to the liberation movements. In 1975, for the first time, this formula was used in a specific resolution on the situation in South Africa. It is to the legality of this that we must now turn, but before we do this, it is necessary to understand the background to the resistance of the African people of South Africa and the humanistic and non-racial nature of their struggle for emancipation.
Political legitimacy is just as important for Governments as legal legitimacy. Legitimacy in the broad sense is obtained by Governments - however illicit or violent their original root of title - by coercion or repression or by the encouragement of participation by recalcitrant majorities or minorities in government, or by the co-optation of leading dissident forces into the ruling elite or on a democratic basis by the extension of the suffrage. The end result, for nearly every organised society except the colonial society, is that the population accepts the State, its Government and institutions. Legitimacy is therefore concerned with the consent or acquiescence of the population in the political and economic arrangements that govern their lives. The South African regime, since its inception in 1910, has neither obtained such a consent from the black majority nor attempted to involve them in the machinery of government and administration.
Far from this being so, the historical record is one of rejection of the pretensions of the racialist State and its institutions. From the armed resistance of the African people in the nineteenth century, when the wars of colonial aggression and expansion were at their height, to the formation of the African National Congress in 1912 - in the first co-ordinated political attempt by the African people in the continent to resist the diminution of their rights - the history of South Africa shows a consistent pattern of agitation, organisation and struggle against racialism and apartheid, culminating in the post-war developments which related specific demands - such as the right to organise and higher wages as in the African gold miners’ strike of 1946 - to the overall question of freedom and liberation.
The racist regime treated every demand, from better wages to the lowering of bus fares, from opposition to the removal of peasants from their settlements to opposition to inferior racially determined education, as a direct threat to its hegemony. Massacres and repression, bannings, murders and death did not still the demand for freedom. From 1913 until 1961, the liberation movement peacefully attempted to change the hearts of the racist overlords. Strikes, demonstrations and stay-at-homes reached their height with the disciplined Defiance Campaign of 1952, when 8,000 people of all races broke the apartheid laws in post offices and railway stations and on park benches. The savage retaliation of the apartheid regime did not break the spirit of the people; instead, the democratic aspirations of the people found a place in the Freedom Charter of 1955, with its ideal of a free and non-racial South Africa.
The Treason Trial of 1956, which lasted for four years and during which more than 150 leaders of the liberation movement were on trial for their lives, showed that to oppose apartheid peacefully and to advocate a non-racial society constituted, in the eyes of the racial masters, treason itself. There could be no better illustration of the racist nature of the State.
The shootings at Sharpeville and Langa, the banning of the liberation movements and their decision to have recourse to armed struggle in the early 1960s showed that the African people would not be cowed by their experiences at the hands of a tyrannical racist State and its laws. The struggle moved on to a new stage. The children and students, the men and women of Soweto, Guguletu, Cape Town, Witzieshoek and so on, are the heirs of a struggle for self-determination that goes back to the Bambata rebellion of 1906, and they draw their inspiration from the fact that their struggle is not and has not been a racially motivated one. For if the struggle is for the liberation of the blacks, then “Who are the blacks? They are the people known as kaffirs, coolies and hottentots, together with those South Africans whose total political identity with the African oppressed makes them black in all but the accident of skin colour.”
There can be no doubt that what the African people in South Africa seek is the total overthrow of apartheid, because only through this will come their emancipation. By its nature, the economic and political system of racial domination cannot provide, within two diametrically opposed administrative and legal systems, a place for the 80 per cent of the population now deprived of basic national rights.
How, therefore, can international law assist the peoples of South Africa to overthrow the vicious system of apartheid?
Although Article 2, paragraph 4, of the Charter of the United Nations, which forbids any threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations, is a norm of fundamental importance in international law, it is not an absolute rule. The use of force by States in self-defence, individually or collectively, is permitted by the United Nations itself under Chapter VII. Article 2, paragraph 4, must be seen in the context of the purposes and principles of the Charter and in the evolution of international law itself. The practice of the United Nations, as exemplified in resolutions, acknowledges that the right of self-determination has certain corollaries, among which are that intervention against a liberation movement may be unlawful and that assistance to the movement would be lawful.
Whatever doubts may have existed about the right to overthrow established authority which contravenes the right to self-determination have now been dissipated by the unanimous adoption by the General Assembly of the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which is declaratory of customary international law. The principles of the Charter embodied in the Declaration are declared to constitute “basic principles of international law.” The Declaration lays down a duty of States “to refrain from any forcible action which deprives people referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.” But even more importantly, the Declaration recognises a right to fight against such deprivation because it lays down that:
“In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.”
It is quite clear that the Declaration recognised the right to have recourse to a war of liberation and clearly indicates that the use of force against the exercise of self-determination is a violation of international law. In so far as the resolution recognises the right of internal revolution, it codifies what international law has traditionally assumed. The application of the Declaration to South Africa, where the majority are under “alien subjugation, domination and exploitation,” means that notwithstanding the formal trappings of statehood, the South African situation, as it is, involves the right of the people to rebel.
Similarly, the General Assembly resolution on the Definition of Aggression passed in 1974 which, in accordance with the Charter, prohibits aggressive acts between States, expressly, under article 7, provides that nothing in the definition of aggression can prejudice the right of self-determination, freedom and independence of peoples under “colonial and racist regimes or other forms of alien domination,” nor the right of these peoples to struggle to that end and receive support, in accordance with the principles of the Charter and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.
These developments in international law, consistent with and not in derogation from the Charter of the United Nations, have drawn the significant observation from one commentator that “It is clear that the right of revolution has been recognised more forthrightly and explicitly by the international community than it earlier had been.”
While there may be argument about the scope and application of the principle of self-determination in a particular situation, the association of “racist regime” with the right to self-determination, taken together with other expressions of the international community, amounts to a clear legal statement that the apartheid regime lacks legitimacy because of a breach of a fundamental norm of international law. It is this approach that justified the General Assembly in 1970 approving the report of the Credentials Committee “except with regard to the credentials of the representatives of the Government of South Africa.” In the following year, the General Assembly rejected the credentials of South Africa. In 1974, the Assembly called upon the Security Council to “review the relationship between the United Nations and South Africa in the light of the constant violation by South Africa of the principles of the Charter and the Universal Declaration of Human Rights.” The General Assembly, acting unilaterally, could not of course expel the apartheid regime from the United Nations. The draft resolution for the expulsion of South Africa from the United Nations was not adopted because of the veto by three of the permanent members of the Security Council: the United States, France and the United Kingdom.
Thereupon, the President of the Assembly ruled that the consistent refusal of the Assembly to accept the credentials of the so-called South African representatives was “tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work.” On a challenge made to this ruling, it was upheld by a vote of 91 to 22, with 19 abstentions.
These examples illustrate that for the vast majority of the States of the international
community the illegitimacy of the South African regime must be given concrete
manifestation and rules of procedure and standing orders cannot
have priority over peremptory norms which imply the necessity for non-collaboration
and non-recognition of the perpetrators of illegal situations such as the apartheid
regime.
The principle of self-determination “represents an important movement away from the old view under which international law rights pertain only to States and Governments and not to groups of individuals.” Individual human rights ultimately require their recognition through the obligations imposed on a State but the essence of the principle of self-determination, which must be considered to be a collective right, presupposes that the peoples vindicating such a right have a degree of personality at the level of international law; otherwise the right is empty of meaning.
To exercise this right, peoples act through parties or liberation movements and the flexible development of the rules of international law is reflected in the way in which liberation movements, as representatives of their peoples, have acquired a degree of personality to represent their territory, to negotiate with States and to receive assistance.
The culmination of this development is seen in the recognition of the liberation movement of South Africa by the General Assembly as the authentic representative of the people of South Africa, but the history of the General Assembly practice and the evolution of the law goes back, indirectly, to the decolonisation resolution of 1960 and, directly, to the General Assembly session of 1970 where, in relation to the then Portuguese colonies of Angola, Mozambique and Guinea-Bissau, respective liberation movements were recognised as the “authentic representatives of the true aspirations of the peoples” of those Territories.
Governments that opposed such resolutions attempted to raise the argument
that their recognition as authentic or sole representatives (as in the case
of SWAPO of Namibia) conflicted with the traditional rule that in order to be
recognised as a governmental or representative agency, the recognised entity
had to exercise some degree of continuous power of government over the Territory
concerned. But this was a selective opposition because the same States ignored
the precedents of the recognition of governments-in-exile during the Second
World War when some of the Allies recognised these governments-in-exile although
they did not exercise the powers and functions of government in their own territories.
Liberation movements from southern Africa have taken part in diplomatic conferences, participated in the work of the United Nations committees, and have been recognised by Governments either as representatives of the peoples of southern Africa or as bearers of rights. In the context of South Africa, such a recognition is especially important as the racist regime cannot, by reference to its own constitution and laws, purport to speak in the name of the African people.
The latest and most critical development in the status of peoples combating racism and colonialism in South Africa can be found in article 1, paragraph 4 of Protocol I of June 1977 of the Geneva Conventions for the Protection of War Victims of 1949. Until fairly recently, the 1949 Conventions were, in general, applied to international inter-State armed conflicts.
The need to elaborate additional international norms for the protection of freedom fighters led the General Assembly to issue numerous appeals to ensure the application to the armies of the liberation movements of the protection of the provisions of the Geneva Conventions and the Hague Convention. At its twenty-eighth session in 1973, the General Assembly “solemnly proclaimed” a set of basic principles concerning the legal status of combatants struggling against colonial and alien domination and racist regimes. These principles, in the form of a Declaration, reiterated some of the principles already set forth in previous resolutions and, in particular, laid down that the “armed conflicts involving the struggle of peoples against… racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Convention.”
The culmination of the campaign by progressive forces for the additional protection for the combatants of the liberation movement came at the International Conference on Humanitarian Law which was convened at Geneva and in 1977 adopted, inter alia, Protocol I, notwithstanding the opposition of some Western countries. The new protocol provides that “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States,” shall be included within the definition of “armed conflicts” to which the 1949 Conventions apply. The protocol, signed by 100 States, is subject to ratification but it can be argued that the recognition of the rights of liberation movements under the protocol is merely a codification of an already existing rule of general international law demanding that the humanitarian standards be applied to conflicts. On this basis, the liberation movement of South Africa is entitled to the legal status, as regards the application of the jus in bello of a regular army in inter-State wars.
The issue of apartheid and the threat that the implementation of this policy constitutes, for the peace of southern Africa in particular and Africa in general, the aggression that the apartheid regime has waged against Angola, Namibia and Zambia and the extent to which South Africa has underwritten the illegal regime of Southern Rhodesia, contrary to its express obligations under Article 25 of the Charter, have presented the Security Council with opportunities for action against the apartheid regime.
The fact that the Security Council has not used its undoubted legal authority and powers in a more all-embracing fashion has been due to the actual use or the potential threat of the use of the veto by the United States, the United Kingdom and France, the three Western permanent members of the Security Council and the States that have had the strongest traditional economic, political, military and cultural links with the racial minority in South Africa. Transnational corporations with headquarters in these States are responsible for most of the investments in South Africa.
However, within the constraints imposed by the veto, socialist and third world States have on a large number of occasions used the procedures of the Security Council to highlight the general and specific situation in South Africa. From 1960 onwards, the Security Council has been seized of the situation in South Africa, though South Africa’s allies have ensured that the situation in South Africa has not been described as a “threat to the peace” under Article 39 of the Charter which would enable the Security Council to take a whole range of binding actions against the regime. As a result, the situation has been described as “one that has led to international friction and if continued might endanger international peace and security,” “seriously disturbing international peace and security” and a “potential threat to international peace and security.”
From 1963 onwards, however, the Security Council was seized of the serious dangers that the export of arms and other military material to South Africa constituted for the people of South Africa and imposed a voluntary arms embargo against South Africa. The Council has repeatedly condemned South Africa and its policies of apartheid as being in violation of its obligations under the Charter. It has recognised the legitimacy of the struggle of the oppressed people of South Africa and has described apartheid as a crime against “the conscience and dignity of mankind.”
Draft resolutions for the expulsion of South Africa from the United Nations and for the imposition of economic and other sanctions against South Africa have been vetoed by three Western permanent members of the Security Council. However, in November 1977, through resolution 418 (1977), the Security Council unanimously took a decision under Chapter VII of the Charter imposing a limited arms embargo on South Africa. Interestingly enough, the determination required by Article 39 of the Charter was couched in language that limited the threat to the peace to “the acquisition by South Africa of arms and related material” which the Security Council determined “constitutes a threat to the maintenance of international peace and security.” Obviously, it is the policy and the implementation of apartheid that constitutes the threat to international peace and security but this formulation was a compromise in order to obtain the support of the Western members.
South Africa’s policy of apartheid, its continued occupation of Namibia and its flagrant flouting of the binding sanctions imposed on Southern Rhodesia, in breach of Article 25 of the Charter, constitute a threat to international peace and security; in a precise sense, the apartheid regime is an international outlaw. New rules of law have developed in the last 20 years to enable the organised international community to treat the government of an ostensibly independent State as an illegitimate regime. The fact that South Africa is not treated as such by its allies and principal trading partners is not due to any weakness in the law or in the international machinery of enforcement but arises simply from economic interests, possible racial loyalty, and strategic considerations.