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RHODESIAN INDEPENDENCE-LEGAL OR ILLEGAL? 37 RHODESIANINDEPENDENCE-LEGAL OR ILLEGAL? L. C. GREEN* Mf'. Gf'een's analysis of this pe't'ple:r'illg question illustrates the conflict between the Rhodesian judges· respect for their oaths as Her Majesty's Justices and tl1e necessity of preserving the rule of Law as far as possible together with an effective adntinistf'ation. Mr. Green examines the bank­ notes dispute and concludes that third states may gTadually accept the situation as a matter of necessity. Colonialism and Self-Determination The history of the British Empire between the passing of the New Zealand Constitution Act. 1852,1 and the South Africa Act, 1909/ had been one of evolution. Gradually, colonial territories in which there was an established English community were given increasing competences in self-government until they were considered able to govern themselves in every way, culminating in the grant of dominion status. During this period, the generally recognized rules of international law provided that a colonial territory belonged to the mother country, that all the inhabitants of the colony, regardless of racial origin or individual desire, enjoyed the nationality of the mother country, subject to any limitations in the latter's legislation and that the mother country was entitled to administer the territory as it pleased. In those days it was accepted that the manner in which a state treated its nationals was purely an issue of domestic jurisdiction. This being so, save in those rare circumstances in which the great powers claimed a right of hu­ 1 manitarian intervention-usually on Christian grounds· - no state had the right to comment or criticise, and certainly not to intervene in the name of democracy in another country's internal affairs. England had, therefore, every right to confer self-government or independence on any of her oversea territories and to lay down the terms on which such independence was to be exercised. If the imperial government wished to confer governmental authority or some measure of statehood upon a minority group of English settlers-or upon them and a defeated group of European settlers jointly, as in the case of South Africa-this could be done, and no other state would have considered that anything morally or legally reprehensible was involved in ignoring the position or rights of the aboriginal indigenous majority. After all, the general view among states at that time was that Native communities had no status in inter­ national law and as such could not possess any rights of statehood,' al­ though some municipal judges refused to deny that they might enjoy protection against complete discretionary treatment by those who came into contact with them.~ • Professor of Political Sclencc.>, Unlw.•rslty of Alberto: formerly, Professor of Inter- national Law and Dean, Faculty of Law. University of Sincupore. 1 15 & lti Viet., c. 72. :: 9 Edw. 7, c. 9. a See Green, General PrinciJJles o! Law and Human Rigl1ts, ( 1955) 8 Current Legal Problems, 162. 167. ,. See, e.g., Island of Pnhnns Case (P.C.A., 1928), 2 Re1>orts of Int. Arb. Awards, 829. 888; Statt1s of Eastern Greenland (P.C.1.J., 19331, Series AtB, No. 53, 3 Hudson. World Court Reports, 151. 171. ~ The Hurtige Hane ( 18011, 3 C. Rob. 324, 326. and The Madonna Del Burso ( 1802 l, 4 C. Rob. 169, 172 (per Sir Wm. Scott, Lord Stowell, in both cases). 38 ALBERTA LAW REVIEW The establishment of the Irish Free State in 19226 was a deviation from the norm and was completely sui generis. In this instance, inde­ pendence was granted to part of the mother country's own territory in response to civil war organized by the local population. There was, in this case, no question of an English minority ruling an indigenous abori­ ginal population, with the latter's rights being ignored. The civil war was more religious than racial in background, and was settled by dividing that part of the imperial territory in,;olved into two, in accordance with a line drawn at the point at which the rival religions each enjoyed a majority population. The area which was inhabited by a majority that rejected the Established Church became a self-governing dominion; the other part remained within the United Kingdor.1, although it was granted certain internal powers of self-rule. 7 In the years following the First World War, the evolutionary process continued. By the Statute of Westminster, 1931,11 the self-governing do­ minions and the mother country were placed virtually in the same posi­ tion and the dominions were given authority to sever legislative and judicial links. In fact, by the combined operation of the Act and the acceptance by third states of the new constitutional position, the do­ minions were, to all intents and purposes, elevated into self-governing independent states enjoying international personality. As between them and the mother country the situation was, for all practical purposes, par in parem imperium non habet. This new status came fully into its own with the outbreak of the Second World War. The United Kingdom declared war against Germany on September 3, 1939, for itself and its non-self-governing territories. After a Cabinet meeting in Australia, the Prime Minister announced on the same day, "Great Britain has de­ clared war, and, as a result, Australia is also at war". 9 While a similar position operated in New Zealand, the Union of South Africa issued its own declaration on September 6th after there had been a change of government-and after some people had feared that that dominion might become an ally of Germany-and Canada's declaration was issued on September 10. The latter's tardiness was remedied in 1941, when Canada declared war on Italy and on Japan before the United Kingdom.' 0 The Irish Free State remained neutral throughout the war. The world re­ cognized the independent sovereign status of the dominions when all, with the exception of the Irish Free State, became foundation members of the United Nations. The constitutional position in some of the non-self-governing ter­ ritories was also changing during this period. Perhaps the best example is that of India. Here there was no intention to give independence or home rule to an English minority, and by the Government of India Act, 1935,l 1 an extensive measure of self-rule with an elected government was granted. While there was no separate declaration of war in respect of that territory, India attended the San Francisco Conference and was a foundation member of the United Nations. By the end of the Second t1 Irish Free State (Agreement) Act, 12 & 13 Geo. 5, c. 4, Irish Free State Constitution Act, 13 Geo. 5, Sess. 2, c. 1. 7 Government of Ireland Act, 1920, 10 & 11 Geo. 5, c. 67. s 22 & 23 Geo. 5, c. 4. 11 O'Connell, lntemational Lau, in Aust,.alia, 20 (1965). 1n Read, .P7'oblems of an E.rtemal Affai1'a Legal Adviser, (1967) 22 International Journal, 376, 392-3. 11 26 Ceo. 5 & t Edw. 8, c. 2. RHODESIAN INDEPENDENCE-LEGAL OR ILLEGAL? 39 World War it was clear that full self-government would have to be con­ ferred upon India if a civil war-or perhaps the correct jargon would be 'war of independence '-was to be avoided. The Indian Independence Act, 1947,12 marked a new stage in the evolution of the Empire into Commonwealth. From then, it became clear that independence was no longer tied to the existence of an English governing minority, but would now be conferred upon a Native majority provided the home govern­ ment considered that the population had 'progressed' sufficiently to enjoy and exercise this 'privilege'. After the creation of India and Pakistan the speed towards self­ government increased and the number of Commonwealth countries ra­ pidly multiplied, while some former colonial territories, for example Burma, preferred to seek their destiny outside the Commonwealth. This increase in numbers was intensified by the whirlwind of change in Africa, and the whole complexion of the Commonwealth relationship changed. 1n the new world of independent states created after 1945, independence was not considered enough. The acme of status was membership of the United Nations, and the nature of that organization also changed. What had been an institution consisting of some fifty or so states, practically all of which were European and 'white' in origin, has become an entity of some 120 members, about half of which come from newly-independent territories which may broadly be described as 'coloured'. Moreover, the present position is such that, save for countries like Switzerland and the two Germanies, there is little prospect of any new 'white' member coming in, while as further colonial territories, however small and in­ defensible, become independent the number of 'coloured' members is likely to increase still more. This change in the balance of United Nations membership has had its effect upon state attitudes towards what were formerly regarded as established rules of international law. Many of the new members, moved by repulsion at the treatment of their fellow Africans in South Africa, have re-interpreted the domestic jurisdiction clause of the Charter•:: to an extent that makes it virtually non-existent. Their own pride in their new independence has led to the adoption of resolutions by the General Assembly condemning colonialism and calling for the indepen­ dence of all peoples subject to alien rule, 14 although the attitude towards 'peoples' is somewhat selective. For the main part, imperial settlers in Africa and Asia, at least those who came from England, regarded them­ selves as transients in the territory in which they resided.

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