The Commission of Inquiry Into Kangwane (The Rumpff Commission)

LA WYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

SUITE 400 • 1400 EYE STREET, NORTHWEST • WASHINGTON, D.C. 20005 • PHONE (202) 371-1212

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C.

THE COMMISSION OF INQUIRY INTO KANGWANE (THE RUMPFF COMMISSION)

IN RE THE MATTER OF THE CEsSION OF KANGWANE To SwAZILAND

BRIEF OF THE LA \VYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LA"' UNITED STATES OF AMERICA AS AllfiCUS CURIAE

March 13, 1984

ROBERT H. KAPP GAY J. McDouGALL FRED N. FISHMAN Director, Southern Africa Co-Chairmen Project WILLIAM L. ROBINSON Lawyers' Committee for Executive Director Civil Rights Under Law Lawyers' Committee for GoLER TEAL BeTCHER Civil Rights Under Law Professor of Law Howard University Law School HENRY RICHARDSO:\' Professor of Law Temple University Law School Attorneys for Amicus Curiae TABLE OF CONTENTS

I I I \ \Page

INTEREST OF AMICUS CURIAE 1

STATEMENT OF FACTS AND LEGAL ISSUES FOR CONSIDERATION . • • • • • • • . • • • . . • • . . • • . . • . . . . • . • • . . . • . . • . . . • . . 2

ARGUMENT:

I. ANY AGREEMENT OF CESSION BETWEEN SOUTH AFRICA AND SWAZILAND WILL BE VOID IF IT VIOLATES THE RIGHTS TO SELF-DETERMINATION AND RACIAL NON- DISCRIMINATION • . • . • . • . • ...... 10

II. SOUTH AFRICA'S PROPOSED CESSION OF KANGWANE 'rO SWAZILAND WILL VIOLATE THE SOUTH AFRICAN PEOPLE'S RIGHT TO SELF-DETERMINATION ...... •...... • 19

A. The South African Government Is Obligated to Respect the Right of Self-Determination Which Vests in All the People of South Africa ...... ~.. 19

1. Self-Determination Is A Right Of The People Of South Africa That The South African Government Must Res pe c t ...... ·. 19

2. The Fact of South African National Independence From Great Britain Does Not Satisfy The Right To Self-Determination Of The Majority Of The South African People Or Extinguish The South African Government's Continuing Obligation To Respect That Right ...... 28

B. This Right Of Self-Determination Of The People Of South Africa Includes The Right Of All South Africans To Participate Effectively In All Decisions Relating To Territorial Separations ...... 35

1. International La~v Requires That All South Africans, Not Merelv The Whites Or Swazi-Speaking South Africans, Participate In Decisions Relating To Territorial Separations ...... 36

., 2. The Requirement That All South Africans Participate In Such Decisions Does Not Minimize The Need For Consultation With The People Of KaNgwane .••.•...... •...... 38

C. The Cession As Proposed Will Constitute A Violation of the Right of Self-Determination of the South African People Sufficient to Render Any Such Agreement Void Under International Law ...... -...... 40

III. THE DENATIONALIZATION OF ALL SWAZI SPEAKING SOUTH AFRICANS AS A COMPONENT OF THE CESSION OF KANGWANE TO SWAZILAND WILL CONSTITUTE AN ACT OF RACIAL DISCRIMINATION WHICH VIOLATES INTERNATIONAL LAW • • • • • • . . . • . . . • . • ...... • . . • ...... 42

A. South Africa Has An Obligation Under International Law To Avoid Any Act Which Violates The Jus Cogens of Racial Non-Discrimination ....•...... •.. 43

B. The Denationalization Plan Envisioned As A Component Of The Cession Of KaNgwane To Swaziland Is Racially Discriminatory In Intent And Effect ...... 48

IV. THE COMPULSORY IMPOSITION OF SWAZI NATIONALITY ON ALL SWAZI-SPEAKING SOUTH AFRICANS WILL VIOLATE THEIR RIGHT OF SELF-DETERMINATION . . . . • • ...... 53

A. The Right of Self-Determination Has Modified The Traditional Rule That The Nationality Of The Acquiring State Automatically Devolves On Residents Of Ceded Territory ...... 53

B. Swazi Nationality Cannot Be Imposed On Those Swazi-Speaking South Africans Who Are Non-Residents Of The Ceden Territory ...... 57

V. A VOID TREATY OF CESSION AND THE VIOLATION OF THE JUS COGENS OF SELF-DETERMINA'riON AND RACIAL NON-DISCRIMINATION WILL TRIGGER AN AFFIRMATIVE OBLIGATION ON THIRD STATES TO WITHHOLD RECOGNITION OF THE VALIDITY OF THE CONSEQUENCES OF THE PURPORTED CESSION AND DENATIONALIZATIONS .•••..•...... 62 CONCLUSION ...... 67

- ii - INTEREST OF AMICUS CURIAE The Lawyers' Committee for Civil Rights Under Law was organized in 1963 at the request of the President of the United States to involve private attorneys in the national effort to assure civil rights for all Americans. The Committee has, over the past 20 years, engaged the support and active involvement of eminent members of the legal profession--including past presidents of the American Bar Association, former U.S. Attorneys General, law school deans and professors, and many of the nation's leading lawyers--in civil rights work aimed at eradicating the last vestiges of discrimination whether based on race, creed, color, or sex. Many u.s. government officials and federal judges have come from the ranks of the Lawyers' Committee for Civil Rights Under Law. Cognizant that the domestic struggle for civil rights is inextricably linked to the struggle for human rights in other parts of the world, the Lawyers' Committee in 1967 estab lished the Southern Africa Project in response to requests for assistance in cases involving human rights in South Africa and Namibia. The Project seeks to ensure that defendants in political trials in South Africa and Namibia receive the necessary resources for their defense and a competent attorney of their own choice. In addition, the Project researches and analyzes legal and policy decisions taken by the South African government. Based on its findings, the Project publishes reports and furnishes information to the United Nations, U.S. Department of State, congressional committees, the media and concerned attorneys, individuals and organizations in the tlnited States and abroad. The Project's activities are based on its long standing commitment to two basic and overriding principles: the promotion of fundamental human rights and the maintenance of the rule of law. - 2 -

STATEMENT OF FACTS AND LEGAL ISSUES FOR CONSIDERATION

The legal issues involved in the matter of the proposed cession of KaNgwane to Swaziland are predicated Upon both the factual circumstances and attendant legal issues of South Africa's policy of separate development, which is at the core of the apartheid system. Official South African government policy has the entire black population allocated to ten tribal homelands (bantustans)--a total area of 14 percent of South Africa's land--despite the fact that the vast majority do not live there and have expressed no desire to be identified with those territories.11 Under the terms of the Bantu Homelands

1J The 1980 census in South Africa recorded 19.8 million Africans, of which 9.5 million or 48% were officially recorded as residing in the "white" areas and 10.3 million or 52% as residing in the homelands. In the 1970 census 8 million of a total of 15 million Africans were counted as residing in "white" areas as opposed to 7 million in the homelands. These figures are highly unreliable. Included in the official figures for Africans in "white'' areas are not only those living there permanently but also ''migrant" workers. A significant number of those classified as living in homelands commute daily to work in "white" areas .. Study Commission on U.S. Policy Toward Southern Africa, South Africa: Time Running Out, 148 (1981). According to Barbara Rogers: So many Africans are present in urban areas without authorization that the urban population is seriously undercounted; and many of those in the bantustans would have their reasons, such as fear of taxation, to give distorted information .... Official ideology has the entire African population

(Continued) - 3 -

Citizenship Act1/ (now the National States Citizenship Act), every African was designated a citizen of a "homeland" on the basis of language, birth, or cultural affiliation. The identity document which all Blacks are required to carry is marked with the person's official tribal classification, homeland citizenship, personal records, and fingerprints. "Pass laws" restrict Blacks to the homelands except for those needed for work in the non-homeland areas that are generally designated as "white" areas. The bantustans, where the population density is approximately 120 per square mile, are not economically viable. Yet, the government policy is to separate by law the bantustans from South Africa by declaring them ''independent" countries. The purpose of the establishment of the bantustans was explained in 1978 by the South African Minister of Bantu Administration:

(Footnote 1 continued) allocated to one or other of the bantustans, despite the fact that the majority have never lived there (and probably a larger majority than the official figures indi cate). The result is the rather bizarre situation where for most of the bantustans, and for the group as a whole, more than half the people allocated to them on paper have no connections there. In official terms, the de facto population is less than half the de-rure population. B. Rogers, D.I.V.I.D.E. and Rule: South Africa's Bantustans, 35 (2d ed. 1980). y Act No. 26 (1970). - 4 -

If our policy is taken to its logical conclusion as far as the Black people are concerned, there will be not one Black man with South African citizenship ... Every Black man in South Africa will eventually be accommodated in some independent new state in this honorable way and there will no longer be a moral obligation on this Parliament to accommodate these people polit~cally.l/ Thus, clearly the policy of separate development is bottomed on racial discrimination. To date, four bantustans--Transkei, BophuthaTswana, Venda, and the Ciskei--have become "independent." They now have a president, parliament, flag, even a diplomatic service. However, no nation but South Africa has recognized this purported accession to statehood. The practical meaning of this "independence" is that nearly 8 million Africans are declared by the South African government to have lost their South African citizenship and nationality.j/ Africans whose

1/ House of Assembly Debates (Hansard), 7 Feb. 1978, col. 579, quoted in Dugard, Denationalization: Apartheid's Ultimate Plan, 28 Africa Report 43, 44 (July/August 1983). if The Bantu Homelands Citizenship Act (now the National States Citizenship Act), No. 26 of 1970, purported to transfer the venue for the exercise of civil and political rights by all "Bantu" in South Africa from the whole of South Africa proper to one of the "homelands." The loss of nationality occurs when the homeland becomes "independent," as was the case with the Transkei, BophuthaTswana, Venda, and the Ciskei. Thus, the South African policy of separate development has created distinctions between citizenship rights and nationality. John Dugard has made the following analysis: The present situation can be summarized in the following way: all white, colored or Indian South Africans are South African nationals. Similarly, all black South (Continued) - 5 - citizenship is allocated to the bantustans are now said to have "guest worker" status in South Africa. In 1982, the South African government announced that the KaNgwane homeland, which had resisted "independence," would be ceded to Swaziland. For the past century Swaziland has claimed that the KaNgwane area, situated around its northern and western borders, is part of its ancestral .lands. The people of KaNgwane21 are committed to South Africa as a unitary state and therefore oppose the South African government's policy of homeland "independence. ,.2/ Cession of the territory

(Footnote 4 continued) Africans who are not ethnically connected with Transkei, BophuthaTswana, or Venda are South African nationals~ Within South Africa there are, however, different types of citizens: those who exercise political rights in the central political process (Whites); those whom the government plans to incorporate into the central political process (Coloreds and Indians); and those who have political rights in the non independent homelands (Blacks). From this it will be seen that nationality is a wider concept than citizenship. All South Africans are .South African nationals, but Blacks and Whites enjoy different citizen ship rights. J. Dugard, South Africa's "Independent" Homelands: An Exercise in Denationalization, 10 Den. J. of Int'l L. & Pol'y 11, 22 (1980). 21 This brief will use the terms "people of "KaNgwane" and "Swazi-speaking South Africans" interchangeably to include all those designated citizens of KaNgwane under the National States Citizenship Act; they thus include Swazi-speaking South Africans resident both within the territory of KaNgwane and in other parts of South Africa. y See infra Section II (B) (2). - 6 - to Swaziland would circumvent that opposition to the effectua- tion of the separate development policy. Additionally, as a component of the proposed cession of KaNgwane to Swaziland, all Swazi-speaking South Africans wherever resident (that is approximately 800,000) would be denationalized. The denationalizations would include not only all Swazi-speaking people who reside within the territory of KaNgwane, but also those who reside in urban areas or other "white" areas in South Africa.11 Therefore, by ceding KaNgwane to Swaziland, the South African government would accomplish its primary goal of making another 800,000 Blacks "aliens" in South Africa. The announcement provoked significant protest in y KaNgwane. KaNgwane's legal status was that of a territory with certain legislative assembly powers as provided for in the _v 1971 National States Constitution Act. Legislative assembly status is an intermediary step toward "independence.'' In 1977, by proclamation of the President of South Africa, KaNgwane had received a constitution and a duly constituted legislative assembly. But KaNgwane had not taken the final step for "independence." In fact, the KaNgwane leaders strongly opposed

y There may be some modification of the harshness of this for the small number of Swazi-speaking South Africans who qualify for permanent resident rights in the "white" urban areas under Section 10 of the Urban Areas Act. y See infra Section II (B) (2). 1/ Act No. 21 (1971). - 7 - both the "independence," which South Africa had forced on other homelands, and incorporation into Swaziland. In the face of opposition from the KaNgwane leadership and people, South Africa decided to take harsh unilateral action. The South African government issued a l.Q/ presidential proclamation dissolving the constitution of KaNgwane and its legislative assembly. Moves were made by the Department of Cooperation and Development (Bantu Administra- tion) to dislodge and displace physically the government of KaNgwane in the territory. The leadership of KaNgwane, Enos Mabuza and his ministers were locked out of office. Attorneys for KaNgwane filed an application in the Supreme Court of South Africa Transvaal Provincial Division contesting the validity of the proclamation.ll/ They argued that in certain respects the 1971 National States Constitution Act limited presidential powers previously granted by the 1927 Black Administration Act and that, consequently, powers conferred by the State President on a legislative assembly or a self-governing territory could be repealed only after prior consultation with the legislative assembly concerned. During the pendency of the KaNgwane application, judgment was rendered in a similar application filed by the government of KwaZulu to challenge a proclamation ceding parts

l.Qj Proclamation R.l08 (1982). 1lJ The Government of KaNgwane and Enos John Mabuza v. The Government of South Africa, Case No. 9990/82. - 8 -

·of its territory (the District of Ingwavuma) to Swaziland. In that judgment the Appellate Division declared that the President's actions were ultra vires, and the proclamation affecting Ingwavuma was set aside. Shortly thereafter, the government of South Africa withdrew its proclamation relating to KaNgwane. KaNgwane's local officials were reinstated and plans to cede KaNgwane to Swaziland by government proclamation were shelved. Instead, the issue of whether KaNgwane should be ceded to Swaziland was referred to a high-level governmental commission chaired by the Honorable. F.L.H. Rumpff, former Chief Justice of the Appellate Division of the South African Supreme Court. The "Rumpff Commission" has been authorized: To investigate, report on and make recom mendations in regard to the desirability or otherwise of incorporating the South · African territory of KaNgwane as well as areas earmarked for incorporation into the said territory of KaNgwane or parts of the said territory and the said areas into the Kingdom of Swaziland, and taking into consideration-- (a) the wishes of those Swazi people of the Republic of South Africa who would be affected by any such recommenda tions; (b) the general and best interests of the said Swazi people; and (c) any other matter which the Commission considers relevant. 12/

11/ Republic of South Africa, Government Gazette, 6 May 1983, Vol. 215, No. 8693. - 9 -

The Commission has been given subpoena power and authority to hear oral testimony given under oath, cross-examine witnesses, and consider all relevant evidence and information. This memorandum for presentation to the Rumpff Commission will consider the validity under international law of the proposed cession to Swaziland. The questions to be addressed are: 1. Would South Africa violate interna tional law by purporting to cede portions of its territory to Swaziland without the consent of the relevant population? 2. Would South Africa violate interna tional law by purporting to dena tionalize portions of its population without their consent? 3. What is the legal effect of the purported cession and denationaliza tions in the absence of the requisite consent? - 10 -

ARGUMENT:

I. ANY 41kGREEMENT OF CESS ION BETWEEN SOUTH AFRICA AND SWAZILAND WILL BE VOID IF IT VIOLATES THE RIGHTS TO SELF-DETERMINATION AND RACIAL NON-DISCRIMINATION

Every state has the right to cede a part of its territory to another consenting state, provided that the dictates of the constitutional processes of both states are met to perfect transfer of title and provided that the requirements of international law are met. Such a right rests generally on notions of state sovereignty under international law. Cession is most commonly accomplished by a treaty or other international agreement spelling out the arrangements between the states involved,.w as appears to be the case for the proposed cession of KaNgwane. w

11f See 0. Svarlien, An Introduction to the Law of Nations 177-8 (1955); G. Schwarzenberger, International Law 303-4 (3d ed. 1957); H. Kelsen, Principles of International Law 213-14 (1952); I. Brownlie, Principles of Public International Law 631-52 (2d ed. 1973). 1iJ It is presumed that the terms of the proposed cession of KaNgwane to Swaziland will be reduced to written form and will therefore constitute a treaty as defined in Article 2(1) (a) of the Vienna Convention on the Law of Treaties: (a) "[T)reaty" means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Continued} - 11 -

However, a valid cession requires a valid treaty. The freedom of states to enter into treaties to effect the transfer of land is not unlimited. A treaty to accomplish an otherwise lawful act, such as cession of territory, may be null, void, and unenforceable if it trespasses certain limits, particularly certain overriding principles of international law ill forming a body of ~ cogens.

(Footnote 14 continued) Vienna Convention on the Law of Treaties, adopted May 22, 1969, opened for signature May 23, 1969, entered into force Jan. 27, 1980, U.N. Doc. A/CONF. 39/27, at 289, 63 Am. J. Int'l L. 875 (1969), 8 International Legal Materi~ls 679 (1969). In its report to the U.N. General Assembly, the International Law Commission elaborated further on the comprehensive nature of the term "treaty" as used in the Convention: "Treaty," it is said, is a generic term since as explained therein, "in addition to 'treaty,' 'convention,' and 'protocol,' one not infrequently finds titles such as 'declaration, ' 'charter, ' 'covenant, ' 'pact,' 'act,' 'statute,' 'agreement,' 'concordat' whilst names like 'declara tion,' 'agreement,' and 'modus vivendi' may well be found given both to formal and less formal types of agreements." Report of the International Law Commission to the General Assembly on the work of the 18th Session, [1966] 2 Y.B. Int'l L. Comm'n 188, U.N. Doc. A/CN. 4/SER. A/1966/Add. 1 [hereinafter cited as "Report"]. ill Erik Suy, "The Concept of Jus Cogens in Public International Law," Carnegie Endowment Conference on International Law, Lagonissi (Greece), 3-8 April 1966, Papers and Proceedings II--The Concept of Jus Cogens in International Law, Geneva, 17 at 48 (1967). --- See Lauterpacht, Sovereignty Over Submarine Areas, [1950] 27 Br1t. Y.B. Int'l L. 397-8~ Law of Treaties, [1953] 2 Y.B. Int'l L. Comm'n 154-5, U.N. Doc. A/CN.4/63i Fitzmaurice, The Law and (Continued) - 12 -

International law concerning treaties is set out in legally binding and authoritative form in the Vienna Convention on the Law of Treaties of May 23, 1969 (hereinafter referred to '1Y as "the Convention"). Article 53 of the Convention, entitled "Treaties Conflicting with a Peremptory Norm of General International Law (jus cogens) ," contains the following provision: A treaty is void if, at the time .of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the International Community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Under this provision, .treaties which at the time of their conclusion conflict with a peremptory norm of general international law are null and void ab initio. Article 69 of the Convention establishes the general rule regarding invalid treaties:

1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.

(Footnote 15 continued) Procedure of the International Court of Justice, 1951-4: General Princilles & Sources of Law [1953] 30 Br1t. Y.B. Int'l L. 30; [1957 I) 92 Hague Recue1l des Cours 120, 122, 125. See also, In re Flesche [1949] 16 Ann. Dig. no. 87 at 269. 1&f Vienna Convention, supra note 14. - 13 -

2. If acts have nevertheless been performed in reliance on such a treaty: (a) each party may require any other party to establish as far as possible in their mutual rela tions the position that would have existed if the acts had not been performed; At the same time, Article 71 of the Convention establishes duties on both parties regarding the consequences of the invalidity of a treaty because of its conflict with a norm of ~ cogens: l. In the case of a treaty which is void under Article 53 the parties shall (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremp tory norm of general interna tional law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law. Finally, Article 44, para. 5, excludes separability of treaty provisions in certain cases of their invalidity--that is, when a treaty is void according to Article 53. While South Africa is not a party to the Convention and therefore is not bound by written consent to Article 53, the terms of the Convention are recognized as part of customary - 14 - international law which binds all states.111 With particular respect to Article 53, the International Law Commission made a clear statement that they recognized the existence of such a customary law principle as~ cogens: [I]n codifying the law of treaties it must start from the basis that today there are certain rules from which states are not competent to derogate at all by a treaty

11/ The drafters of the Convention recognized that the Convention was a codification of prior general principles which were considered rules for interpreting treaties. International Law Commission, Report, supra note 14, at 218-219. Even those terms of the Convention not clearly reflective of cu~tomary law when drafted, have now passed into the body of general prin ciples of international law binding on all states. See for example, ~.0. Elias, The Modern Law of Treaties, 5 (1974~ Since it was duly signed on May 23, 1969, there can hardly be any Foreign Ministry in Member States and non-Member States alike that has not been using the Convention as the most authoritative source for its guidance in the conduct of inter-State relations. Publicists have been referring to it as the starting point of their exposition and analysis of international agreements and treaties. Even the Inter national Court of Justice has on a number of occasions, notably in the Barcelona and Namibia Cases, specifically applied and interpreted relevant provisions of the Convention as if it were already in force formally. It can safely be said that, despite the understandable delay in its ratification, the Convention is now part and parcel of contemporary international law. See also I.M. Sinclair, The Vienna Convention and the Law of Treaties (1973). - 15 -

arrangement, and which may be changed only by another rule of the same character.~ In other words, customary international law bars South Africa from derogating by treaty or other agreement from existing peremptory rules of international law.

~ When the International Law Commission drafted the precursor of Article 53 (Article 50 of the Draft Articles of the Law of Treaties), it perceived its task to be that of codifying an existing rule. Its commentary to Article 50 state.d: (1) The view that in the last analysis there is no rule of international law from which states cannot at their own free will contract out has become increasingly difficult to sustain, although some jurists deny the exis tence of any rules of ~ cogens in international law, since in their view even the most general rules still fall short of being universal. The Commis sion pointed out that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens. Moreover, if some governments in their comments have expressed doubts as to the advisabil ity of this article unless it is accompanied by provision for indepen dent adjudication, only one questioned the existence of rules of ~ cogens in the international law of today. Accordingly, the Commission concluded that in codifying the law of treaties it must start from the basis that today there are certain rules from which states are not competent to derogate at all by a treaty arrange ment, and which may be changed only by another rule of the same character. (emphasis supplied) 61 Am. J. Int'l L. 409, 409-10 (1967). - 16 -

While the total content of ~ cogens has been the

subject of some controversy, certain portions of~ cogens are of general agreement. Included in the latter category are the pr1nc1p. . 1 es o f rac1a . 1 non-d'1scr1m1nat1on . . . 121 an d t h e r1g . h t to

· l2J South West Africa cases (second phase), Judgment, 1966 I.C.J. 6 [hereinafter cited as "South West Africa cases"], 298 (Tanaka, J., dissenting); Case Concerning the Barcelona Traction, Light and Power Co., 1970 I.C.J. 3 [hereinafter cited as "Barcelona Traction case"], 304 (Ammoun, J., sep. op.); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 [hereinafter cited as "Namibia Advisory Opinion"], 78-81 (Ammoun, J., sep. op.). In the Barcelona Traction case the majority judgment of the International Court, supported by twelve judges, drew a distinction between obligations of a state arising vis-a-vis another state and obligations "towards the international community as a whole." The Court stated: 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 protection from slavery and racial discrimination. Barcelona Traction case, 1970 I.C.J. 3, 32. The principle of non-discrimination based on ethnicity has the same status. The international community has made clear that distinctions based on ethnic origin are comprehended as being within the prescription against racial discrimination. Article 1, paragraph 1 of the International Convention on the Elimination of All Forms of Racial Discrimination states:

1. In this Convention, the term "racial discrimination" shall mean any distinc tion, exclusion, restriction or prefer ence based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (Continued) - 17 -

1Q/ self-determination. Any treaty in conflict with these norms is void. The same conclusion can be reached by an analysis of the provisions of the Charter of the United Nations. Article 103 of the U.N. Charter provides: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their

(Footnote 19 continued) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, entered into force January 4, 1969; 660 U.N.T.S. 195 (1969); G.A. Res. 2106 A(XX), 20 U.N. GAOR Supp. (No. 4), U.N. Doc. A/6014 (1965). 1Q/ South Africa was represented at the Vienna Conference on the Law of Treaties and participated in the deliberations which drafted and approved Article 53. The travaux preparatoires of the Vienna Convention on the Law of Treaties documents the intent of the drafters of the Convention to include the right to self-determination as one of the peremptory norms referred to in Article 53. Among the specific examples of prohibited treaties given by members of the International Law Commission when it included the concept of ~ cogens in the Draft Law of Treaties were treaties violating human rights or the principle of self-determination. See Report of the International Law Commission to the General Assembly on the Work of the 15th Session, [1963] 2 Y.B. Int'l L. Comm'n 199. See also Barcelona Traction case, supra note 19; Report, supra note 14, at 22; id., at 23; Brownlie, supra note 13, at 75; Carnegie Endowment Conference on International Law, suora note 15, at 105; statements of International Law Commission and the travaux preparatoires of the Vienna Conference when drafting Article 53. Note also resolutions and other activity in the United Nations have helped confirm that self-determination is a peremptory norm that has become customary international law, and further have provided authoritative explication of perti nent provisions of the U.N. Charter binding on South Africa and Swaziland. See especially, 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the U.N., G.A. Res. 2625 (XXV), 25 U.N. GAOR Supp. (No. 28), U.N. Doc. A/8028 (1971), [hereinafter cited as "Declaration on Friendly Relations"]. ·- 18 -

obligations under any other international agreement, their obligations under the present Charter shall prevail. Article 1, in accord with other provisions of the Charter,Y establishes self-determination and non-discrimination on racial grounds as principles of international law and undertakings of state-parties to the Charter. Having ratified the Charter, South Africa is bound by its terms and is thereby accordingly limited with respect to any other international agreements. Accordingly, any projected treaty ceding the territory of KaNgwane to Swaziland will be invalid under inter-

national law if it violates~ either in its terms or in its reasonable consequences, the peremptory norms of self- determination or racial non-discrimination.

21/ U.N. Charter arts. 1(2), 1(3), 2(2), 2(5) and 73 as read with arts. 55 and 56. - 19 -

II. SOUTH AFRICA'S PROPOSED CESSION OF KANGWANE TO SWAZI LAND WILL VIOLATE THE SOUTH AFRICAN PEOPLE'S RIGHT TO SELF-DETERMINATION

A. The South African Government Is Obligated To Respect The Right of Self-Determination Which Vests In All The People of South Africa

1. Self-determination Is a Right Of The People Of South Africa That The South African Government Must Respect

"Self-determination" is the right of cohensive groups

("peoplesw) to choose for themselves a form of political organization and their relationship to other groups. 1Y

Self-determination is.not a new concept. It was at the root of the American Revolution, expressed in the American people's wish to remove the yoke of British rule from the

American colonies. In the same way, it was present in the decision of the government of the Union of South Africa to break its ties with Great Britain and become the Republic of

South Africa. Similarly, the South African citizens of

KaNgwane wish to express their self-determination by remaining citizens of South Africa. Their right of self-determination is no less valid than that expressed by other groups in other historical instances.

22/ Brownlie, supra note 13, at 575. - 20 -

As a Member of the United Nations and a State Party

to the Charter of the United Nations, South Africa is obligated 231 to respect the right of self-determination, which is now

recognized as a fundamental legal right, enjoyed by all

peoples. All states have an obligation to recognize this

right.l!l As a general multilateral treaty, the provisions of

the U.N. Charter are confirmation that the principles of equal

rights and self-determination of peoples are rules of interna-

tional law binding on all Member States.

One of seven principles proclaimed by the Declaration

on Principles of International Law Concerning Friendly Rela-

tions is the principle of equal rights and self-determination

of peoples, by virtue of which "all people have the right

freely to determine, without external interference, their

23/ The Charter of the U.N. affirms the principle in art. 1, para. 2, in art. 55 and implicitly in art. 73. Moreover, arts. 2 and 56 of the Charter create certain obligations for Member States with respect to the provisions of arts. 1 and 55.

24/ The rapporteur of the Committee on Friendly Relations remarked:

Nearly all representatives who participated in the debate emphasized that the principle was no longer to be considered a mere moral or political postulate: it was rather a settled principle of modern international law. Full recognition of the principle was a prerequisite for the maintenance of international peace and security, the development of friendly relations and cooperation among states, and the promotion of economic, social and cultural progress throughout the world.

See U.N. Doc. A/AC-125/L.53 Add. 3 (1967), at 9.

------21 - political status and pursue their economic, social and cultural development, and every state has the duty to respect this right 25/ in accordance with the provisions of the Charter.'~ The

Declaration on Friendly Relations is an authoritative

interpretation of the Charter and confirms the duty of every

state to promote the realization of the principle of self-

determination as part of the obligations stemming from the §' Charter.

Furthermore, Article 103 of the Charter, which

stipulates that:

In the event of a conflict .between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail ...

gives the ?rinciple of self-determination of peoples precedence

over other obligations that may be in conflict.

1.2/ Declaration on Friendly Relations, supra note 20, at 121, 123-4.

1&f Resolutions on a particular subject may provide authoritative interpretation of the U.N. Charter; and this could be binding per se. This is accepted now even by those who are otherwise-arltagonistic to the "legislative" role of the General· Assembly of the United Nations or to the notion of the S?eedy development of new rules of international law.

The consensus basis on which the Declaration on Friendly Relations was drafted makes its provisions particularly authoritative. According to I. Brownlie, supra note 13, at 32:

The legal significance of the Declaration lies in the fact that it provides evidence of the consensus among Member States of the United Nations on the meaning and elabora tion of the principles of the Charter. - 22 -

In addition to its treaty obligations under the U.N.

Charter, South Africa is obligated under customary international law to respect the right of self-determination.

The jurisprudence of the International Court of

Justice has confirmed the existence of the right of self- determination as part of customary international law.1J../ For example, in the Western Sahara case, the International Court of

Justice called for the enforcement of 11 the right of the popula-

tion of the Western Sahara to determine their future political

status by their own freely expressed will, 11 thereby denying to

Spain the right to cede Western Sahara to Morocco and/or

Mauritania against the wishes of the Western Saharans.1§/

Judge Dillard, in his separate opinion in the Western Sahara

Advisory Opinion, stated that the pronouncements of the Inter-

national Court of Justice in the Namibia and Western Sahara

Advisorv Opinions 11 indicate, in my view, that a norm of

international law has emerged applicable to the decolonization

27/ For the principle of self-determination in the jurisprudence of the International Court of Justice, see the Court's Advisory Opinion on Western Sahara, 1975 I.C.J. 12 11 11 (hereinafter cited as Western Sahara case ], 31-33, which analyzes the principle in full. See also Namibia Advisory Opinion, supra note 19, at 31. The principle had previously been referred to in passing in the decisions of the Court and in the separate opinions of certain judges. For example, in his separate opinion in the Barcelona Traction case, Judge Ammoun quoted with approval a statement made by the late Secretary-General of the United Nations, u Thant, at the 1969 session of the Organization of African Unity at Addis Ababa, to the effect that the principle of self-determination was an imperative rule of law. Barcelona Traction case, supra note 19, at 304.

1]/ Western Sahara case, supra note 27, at 35-6. - 23 -

29/ of those non-self governing territories.'~ As a minimal conclusion, in the context of non-self governing territories emerging into independence, the principle of self-determination has acquired in international law the status of a legal right. The court affirmed the right to self-determination in its Namibia Advisory Opinion, by stating: "[T]he subsequent development of International Law in regard to non-self governing territories, as enshrined in the Charter of the U.N., made the principle of self-determination applicable to all of them. ,J.Q/

The historic Declaration on the Granting of Indepen- oence to Colonial Countries and Peoples (hereinafter cited as "The Decolonization Declaration"), adopted by the U.N. General

Assembly in 1960 (Resolution 15i4[XV1), states that: "All people have the right of self-determination; by virtue of that riqht they freely determine their political status and freely pursue their economic, social and cultural development."l1/ The current view is that the Decolonization Declaration has evolved into customary international law and, as such, is binding on all states.lY

2:!i/ Id. at 121. 1Q1 Namibia Advisory Opinion, supra note 19, at 31. llf G.A. Res. 1514 (XV), 15 U.N. GAOR Annex 2 (Agenda Item 87) at 8 (1960). 32/ Regarding the significance of the Declaration on the Granting of Independence to Colonial Countries, Brownlie has commented: (Continued) - 24 -

Resolutions of the General Assembly, and recommenda- tions 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 such resolutions do not generally c~eate legal obligations, they occasionally have considerable legal significance, for example, they may be cogent evidence of state practice and the opinio juris sive

(Footnote 32 continued) The Declaration relates the normative development in the field of human rights to the rights of national groups, and in particular, the right of self determination. The Declaration, in con junction with the Unit~d Nations Charter, supports the view that self-determination is now a legal principle ... Resolution 1514 (XV) is in the form of an authoritative interpretation of the Charter rather than a recommendation. Brownlie, supra note 13, at 187. H. Richardson has concluded that the Declaration on the Granting of Independence: represents an authoritative interpretation and implementing measure by the Assembly of article 1(2) of the Charter, which states the principle of self-determination of peoples, and is thereby legally binding on Member States as an interpretation of a previously ratified treaty. Richardson, Self-Determination of the South African Bantustan Policy, 17 Colum. J. Transnat'l L. 185, 203 (1978). R. Higgins, The United Nations and Lawmaking: The Political Organs, 64 Am. J. of Int'l L. 43 (1970): Bleicher, The Legal Significance of Re-citation of General Assembly Resolutions, 63 Am. ,J. Int'l L. 444, at 474-5, 477-8 (1969); A. D'Amato, The Conceot of Custom in International Law, 43-44 (1971). - 25 - necessatis, the conviction that translates practice into custom.w

The emergence of the right of self-determination as customary international law has been recognized and confirmed by eminent jurists from around the world. For example, Dr.

~osaiyn Higgins has termed it an "inescapable conclusion" that self-determination has developed into an international legal right. She has found it to be academic:

to argue that as Assembly resolutions are not binding nothing has changed, and that "self-determination" remains a mere "prin ciple," and Article 2/7 is an effective defense against its implementation. To insist upon this interpretation is to fail to give any weight either to the doctrine of bona fides or to the practice of states as revealed by unanimous and consistent behavior.1if

H. Bokor-Szego has concluded:

While the right of self-determination has become a rule of positive international law through its incorporation in the U.N. Charter, the particular rules on the content of this right and the resulting responsibilities of states have been evolved, through custom, by state practice observing the Charter and making up in this way for the deficiency originating from the lex imperfecta character of the relevant provisions of the United Nations Charter.l2J

33/ See generally Higgins, The Development of International Law Through the Political Organs of the United Nations, Part II (1963).

34/ Id. at 101-2.

35/ H. Bokor-Szego, New States and International Law 26-27 (T970), quoted in U. Umozurike, Self-Determination in International Law 190 (1972). - 26 -

The consensus of the international community that self-determination is a legal right is evidenced by its inclusion in a series of international instruments.1.£1

The exceptional importance of the right of self- determination is such that today the principle has been held to constitute an example of jus cogens, that is, a peremptory norm of international law from which no derogation is permitted by treaty or a unilateral act of a state.w As early as 1963,

36/ In addition to the United Nations Charter, the right to self-determination is en~hrined in the International Covenant on Economic, Social and Cultural Rights (entered into force January 3, 1966), G.A. Res. 2200 (XI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); the International Covenant on Civil and Political Rights (entered into force March 23, 1966), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131 (XX), 20 U.N. GAOR Supp. (No. 14), U.N. Doc. A/6014 (1965); the Declaration on the Strengthening of International Security, G.A. Res. 2734 (XXV), 25 U.N GAOR Supp. (No. 28) at para. 18, U.N Doc. A/8028 (1970); the Declaration on Friendly Relations, supra note 20; the Definition of Aggression, G.A. Res. 3414 (XXIX), 29 U.N. GAOR Supp. (No. 31), U .N Doc. A/9631 (1974); the resolutions on the International Development Strategy for the Second United Nations Development Decade and on the establishment of a new international economic order, G.A. Res. 2626 (XXV), 25 U.N GAOR Supp. (No. 28), U.N. Doc. A/8028 (1970); G.A. Res. 3201 (S-VI), 6 U.N GAOR Supp. (No. 1), U.N. Doc. A/9559 (1974); G.A. Res. 3202 (S-VI), 6 U.N GAOR Supp. (No. 1), U.N. Doc. A/9559 (1974); the Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), 29 U.N. GAOR Supp. (No. 31), U.N. Doc. A/9631 (1974); the Declaration on Social Progress and Development, G.A. Res. 2543 (XXIV), 24 U.N. GAOR Supp. (No. 30), U.N. Doc. A/7603 (1969); and many other United Nations instruments. 121 See Brownlie, supra note 13, at 496-503, 575-81; Richardson supra note 32, at 190; Barcelona Traction case, supra note 19, at 4; Declaration on Friendly Relations, supra note 20; c.f. McDougal, Lasswell and Chen, The Protection of Respect a~Human Rights: Freedom of Choice and World Public

(Continued) ..;. 27 - the International Law Commission's commentary to Article 37 of the Draft Law of Treaties mentioned that the principle of self- determination could be cited as an example of jus cogens.l.Y

In 1976, the International Law Commission, in its draft articles on state responsibility, approved an article characterizing as an international crime "a serious breach of an international obligation of essential importance for safe- guarding the right of self-determination of peoples, such as

that prohibiting the establishment or maintenance by force of colonial domination. ,,W

(~ootnote 37 continued}

Order, 24 Am. U.L. Rev. 919, 1002-3 (1975). See generally, Barcelona Traction case, supra note 19, at 304. McDougal, Lasswell & Reisman, Theories about International Law: Prologue .to a Configurative Jurisprudence, 8 Va. J. Int'l L. 188 (1968); McDougal & Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 Am. J. Int'l L. 1-5 (1968); Carnegie Endowment Conference on International Law, Lagonissi (Greece}, supra note 15, at 105. See comprehensive discussion of support for this conclusion in Hector Gros Espiell, ~he Right to Self-Determination: Implementation of United Nations Resolutions, U.N. Doc. E/CN. 4/Sub. 2/405 Rev. 1, at 10-12 (1980).

38/ See Report of the International Law Commission to the G~nerar-Assembly on the Work of the 15th Session, supra note ·2o, 198-199.

39/ See Report of the International Law Commission on the Work of its-28th-Session, [1976] 2 Y.B. Int'l L. Comm'n 75. - 28 -

2. The Fact of South African National Independence From Great Britain Does Not Satisfy The Right To Self Determination Of The Majority Of The South African People or Extinguish The South African Government's Continuing Obligation To Respect That Right

There can be no doubt that international law grants a right of self-determination to peoples who have not yet achieved national independence, that is, peoples subject to co 1 on1a. 1 an d/ or a 1'1en d om1na. t'10n. iQ/ Sue h peop 1 e c 1 ear 1 y h ave a right to their own freely determined destiny.

Although, generally, national independence from foreign domination is sufficient to satisfy'the right of self- determination, in the specific case of South Africa, political inoependence from Britain did not fulfill the right of self- determination of the black people of South Africa, the great majority of the population of South Africa. The right of self- determination unoer international law encompasses rights for people in established independent states, even if the state structure does not reflect the typical pattern of colonial domination. The obligation of states to respect the right of self-determination is in relation to the entire population under a state's jurisdiction,

40/ See Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV) of 14 Dec. 1960. - 29 - whether in mandated, trusteeship, colonial, or metropolitan territory.ill According to Rosalyn Higgins:

41/ The obligation of states to respect the right of self determination of all peoples, including those within the metro politan state ,has been recognized in the debates of the United Nations. In 1956 the British representative to the Economic and Social Council reminded other members that the Chapter XI provisions of the U.N. Charter concerning non-self-governing peoples was not exhaustive of states' responsibilities with respect to the right of self-determination: "There were subject peoples within sovereign states, for whom the United Nations must care as it had for peoples under the control of Imperial Powers." Off. Rec., lst part, lst sess., 4th Committee, at 34 (1946), quoted in Umozurike, supra note 35, at 184. Earlier, in 1952 a Belgian delegate criticized members who evaded their obligations under Chapter XI because they refused to extend the rights guaranteed in the Charter to various groups that he termed non-self-governing peoples within sovereign states. (See 7th sess., 4th Committee, at 23 [1952] .) See also, The Right to Self-Determination; Implementation of United Nations Resolutions, wherein Hector Gras Bspiell, Special Rapporteur of the Sub-Committee on Prevention of Discrimination and Protection of Minorities states:

Accordingly, the right of peoples to self determination exists as such in modern international law, with all the conse quences that flow therefrom, where a people is subject to any form or type of colonial and alien domination of any nature whatso ever •.. the notion of colonial and alien domination is broader than - though it includes - the notion of foreign occupa tion, and hence the right of peoples to self-determination may arise and be typified in other situations in addition to those where there is merely foreign occupation.

Esoiell, supra note 37, at 6. In subsequent discussion, Espiell ~escribes one such "other situation" as being where:

beneath the guise of ostensible national unity, colonial and alien domination does in fact exist, whatever legal formula may ·be used in an attempt to conceal it, the right of the subject people concerned

(Continued) - 30 -

Human dignity requires that the concept of self-determination be made clearly appli cable to all peoples, and not only to colonial peoples. Where these noncolonial peoples are already a nation-state (as in Hungary 1956, or Czechoslovakia 1968) there is no difficulty in asserting their right to self-determination ...• [I] t may become essential to speak'of the necessity for self-determination of units within the nation-state where there is clear evidence of great repression of an ethnic, racial, or religious minority, and where this minority is not allowed to play a proper part in the life of the nation.j]J Therefore, political independence from Britain did not ipso facto extinguish the right of self-determination of the South African people. The right of self-determination for "peoples" in established states must axiomatically share the same core principles and expectations as does the analogous right for those who have not yet reached national independence. The right to have an effective voice in one's governance and political destiny, and in the fundamental decisions which are thereby encompassed, lies at the heart of the right of self-

(Footnote 41 continued) cannot be disregarded without international law being violated. Id. at 10. See also, H. Richardson, supra note 32, at 194; and A. Cassese, The Self-Determination of Peoples, in The Interna tional Bill of Rights: The Covenant on Civil and Political Rights 92, at 94-5 (L. Henkin, ed. 1981). 42/ R. Higgins, "Internal War and International Law," Central WOrld-Order Concerns, 104. - 31 - determination for peoples either within established states or in territories that have not yet become independent. For peoples in established states, this right is interpreted to mean the right of each person to participate effectively and equally in basic decisions which affect the political destiny of the state, including decisions about the form of government and the territorial integrity of the country.m

Thus, the principles of equal rights and self 441 determination of peoples are legally interrelated. At the

1945 San Francisco Conference which produced the U.N. Charter,

the report of the Rapporteur of Subcommittee I/1/A of Committee

I/1 (1 June 1945) stated with reference to Article 1, paragraph

2, of the Charter that the principle of equal rights of peoples

and that of self-determination ~re two component elements of 45/ one norm.-- This dual norm was reiterated later as Member

States of the U.N. developed the Declaration on Friendly

ill Richardson, suora note 32, at 193-4. See infra discussion in Section II(B). iiJ There is no instance in the U.N. Charter where the term self-netermination appears and is not linked with the term equal rights.

45/ "The Committee understands that the principle of equal riqhts of peoples and that of self-determination are two complementary parts of one standard of conduct: that the respect of that principle is a basis for the development of friendly relations and is one of the measures to strengthen universal peace; that an essential element of the principle in question is a free and genuine expression of the will of the people •••• " UNCIO, vol. VI, at 703, quoted in Umozurike, supra note 35, at 191. - 32 -

. 46/ Relat1ons.--- In emphasizing that the right of self- determination does not become redundant on the attainment of independence, Great Britain submitted the following articles for consideration:

(1} Every state has the duty to respect the principle of equal rights and self-determination of peoples and to implement it with regard to the peoples within its jurisdiction ..•

(4} States enjoying full sovereignty and independence, and possessed of a representative government, effectively functioning as such to all distinct peoples within their territory, shall be considered to be conducting them selves in conformity with this prin ciple as regards those peoples.il/

The provision finally adopted by a consensus of all

Member States of the U.N. refers to states which comply with

the principl~ of equal rights and self-determination as being

"possessed of a government representing the whole people

belonging to the territory without distinction as to race,

_iY See supra note 20. ill The debate took place in the Special Committee on Friendly Relations and Cooperation Among States established under Resolution 1966 (XVIII) of 16 Dec. 1963. U.N. Doc. A/AC.l25/I44 (1967}. The u.s. proposed the following language: The principle is prima facie applicable in the case of the exercise of sovereignty by a State over a territory geographically distinct and ethnically or culturally diverse from the remainder of that State's territory, even though not as a colony or other Non-Self-Governing Territory.

A/AC/125/!.32 (1967), quoted in Umozurike, supra note 35, at 185. - 33 -

creed or colour.'..1Y Jordan J. Paust has correctly assessed

the implications of this provision as read with the Charter

obligations:

This last quote from the General Assembly declaration contains a key definitional element. A state that complies with the principle of equal rights and self determination is one possessed of a govern ment representing each and every person- the whole people--belonging to its terri tory and a government that represents each and every person "without distinction as to race, creed or colour." No other state complies; no other political elite main tains its control in accordance with the "right" to self-determination. Indeed, without a free and full participation of a given peoples in the governmental process, it would be incorrect to state that such a people enjoy "the right freely to deter mine •.. their political status" and it would surely be incorrect to state that the political elite govern in accordance with "the freely expressed will of the peoples concerned. ".!2/ Without doubt, the international imperative of racial

non-discrimination is associated with, or perhaps assimiliated

into the dual norms of equal rights and self-determination.2Q/

48/ G.A. Res. 2625 (XXV). 25 U.N. GAOR Supp. (No. 28) (Agenda Item 85) at 121, U.N. Doc. A/8028 (1970). ; :I i1f J. Paust, Self-Determination: A Definitional Focus, in Self-Determination: National, Regional, and Global Dimensions 3,7 (Y. Alexander and R. Friedlander, eds. 1980).

2Q/ In addition to the statements quoted above by members of the U.N. Special Committee on Friendly Relations, the International Commission of Jurists passed a resolution at its 1955 Congress in Athens which stated, inter alia:

(9) The r~cognition of the right to self determination being one of the greatest achievements of our era and

(Continued) - 34 -

Hence, the widespread denial of fundamental rights by the South

African government to its black citizens has been and remains a continuing and flagrant violation of their right of self- determination.

In South Africa, Blacks unlike Whites are systematically excluded from participating in the internal electoral processes of their country. The continuation of this exclusion as a matter of law and national policy is confirmed by the new constitutional revisions. Consequently, Blacks in

South Africa have no say about their future and, therefore, are as equally denied the right of self-determination as is any group suppressed by an external colonial force. With respect to the issue under consideration, black South Africans have had no say in the adoption of the homelands policy or more specifically in the decision to cede KaNgwane to Swaziland. Indeed, these policies have been imposed on them. Their right, then,

(Footnote 50 continued)

one of the fundamental principles of international law, its non-application is emphatically condemned.

(10) Justice demands that a people or an ethnic or political minority be not deprived of their natural rights and especially of the fundamental rights of man and citizens or of equal treat ment for reasons of race, colour, class, political conviction, caste, or creed.

Committee on Public Law, Res. 3. See also, The Rule of Law and Human Rights: Principles and Definitions, Int'l Commission of Jurists, Geneva (1966); Umozurike, supra note 35, at 185. - 35 - to freely choose their political status has been denied them.

Their right to self-determination has been violated.

B. The Right of Self-Determination of the People of South Africa Includes The Right of All South Africans to Participate Effectively in All Decisions Relating to Territorial Separations

Self-determination must at least constitute a legal right to participate effectively in governing territory. w

Decisions to transfer or otherwise give up part of the national territory~-as part of the national patrimony of all of the people'of that country--are decisions which affect directly the political destiny of all groups among the people of that country. Accordingly, the right of all groups to have a say in decisions concerning the dismemberment of the national patrimony is an integral element of the right of self- determination. When the unrepresentative nature of the government is manifested and enforced by a coercive system applied against the majority of that people (that system itself having been found illegal under international law), effective partie- ipation by all groups within the country in decisions about territorial transfers becomes an even more essential element of

Self-determl'natl'on.21/ S uc h d ec1s1ons· · canno t b e rna d e 1 aw f u 11 y or imposed by merely one group within the country.

51/ Richardson, supra note 32, at 199. 2lf See Richardson, supra note 32, at 193-4. - 36 -

1. International Law Requires That All South Africans, Not Merely The Whites or Swazi-Speaking South Africans, Participate In Decisions Relating To Territorial Separations

In the instant case, the right to participate in decisions relating to territorial separations devolves on all 53/ the people of South Africa.- The right of self-determination of the people of South Africa includes their right to partie-

ipate effectively in decisions relating to territorial separa-

tions. Effective participation in decisions relating to ter-

ritorial separations, including the proposed cession of

KaNgwane, is undoubtedly denied to black South Africans by the

unrepresentative, coercive and illegal--under international law

--system of apartheid.w

It is a matter of record that South Africans

throughout the entirety of the country have protested

viqorously against the proposed cession and have refused to

give their consent thereto. The South African Institute of

Race Relations has reported that:

A wide range of political and other groups voiced their opposition to the land deal. These included the Natal Indian Congress, the Azanian People's Organization, the Soweto Residents' Association and the SA Council of Churches, all of whom have said that the handover would deprive thousands

53/ "All" here comprehends all South Africans without distinction as to race, color, or ethnic origin, that is, Africans, "Coloureds," Asians, and Whites.

2if Richardson, supra note 32, at 214-15. - 37 -

of people of their rights to land and citizenship. All the opposition political parties con demned the land deal. The Progressive Federal Party criticized the government for not obtaining the consent of the people involved, and shared the platform with Inkatha and other groups at protest meetings in Durban, Pietermaritzburg and Johannesburg. The Natal Provincial Council expressed anger at the fact that it had not been consulted, and decided to hold a referendum on the issue among whites, Indians, and coloured people in Natal. More than 18,000 people were reported to have signed a petition opposing the land deal by October.22J In the context of the unrepresentative nature of the national government, the proposed cession of KaNgwane infringes the rights of all of the people of South Africa. Their right to consent, or not to consent, to such a cession of national territory forms part of their right to self-determination under international law. Accordingly, that KaNgwane was permitted to nominate three of the nine members of the Rumpff Commission is an inadequate curative. Likewise, even a vote approving the cession obtained as a result of an internationally monitored plebiscite would not be sufficient to cure the violation to the rights of the South African people as a whole if only the ( people of KaNgwane participated in the plebiscite. It is the

~ denial to the great majority of the South African people of participation in the national government and in any decision on

22} Survey of Race Relations 378 (1982). - 38 -

the proposed cession of KaNgwane which in this instance

constitutes the breach of international law.

2. The Requirement That All South Africans Participate In Such Decisions Does Not Minimize The Need For Consultation With The People of KaNgwane

In the context of the right of self-determination,

the special interests of those South Africans domiciled in the

territory of KaNgwane must also be considered. They have a

particular interest in the maintenance of the territorial

integrity of South Africa in the instant case and in \ effectively participating in any decision relating to the

territorial separation of KaNgwane from the entirety of South ' Africa. This interest is part of their right to self- I determination as a component group of the people of South t Africa. Its particularity derives from the fact that their I nationality and attachment to the land of their homes would be directly and destructively affected by the proposed cession of \ KaNgwane to Swaziland.

\ The people of KaNgwane have demonstrated their

opposition to the proposed cession. On June 12, 1981, the

members of the Executive Council of KaNgwane informed the South

African Minister of Cooperation and Development that unifica-

tion of KaNgwane with Swaziland was unacceptable. On Dec. 1,

1981, the Legislative Assembly of KaNgwane passed a resolution

opposing unification. In June 1982, 17 out of 21 chiefs in

KaNgwane signed a petition against incorporation into - 39 -

Swaziland. According to the Rand Daily Mail (June 18, 1982), all but seven of the 45 members of the KaNgwane Legislative

Assembly (that is, more than five-sixths) are on record as opposing the cession to Swaziland. Further, at a series of at least eight public meetings held between December 1981 and

February 1982, the unequivocal and clearly expressed sentiment of those in attendance was in opposition to incorporation into

Swaziland.

On April 2, 1982, the Executive Council of KaNgwane proposed to the South African Minister of Cooperation and

Development that a referendum be held.in KaNgwane to determine the popular sentiment regarding the proposed cession. The request for a referendum was denied by the Minister apparently · 56 I because of what he viewed as the potential for "intimidation.'~

Upon the appointment of the Rumpff Commission,

KaNqwane was invited to participate on the Commission through

the representation of three of the nine members. However, even

the nomination of those three members cannot be viewed as

effective participation by KaNgwane in the decision-making

process of the Rumpff Commission. The South African government

22f Government sources have reported that a secret opinion pnll was conducted in the region by the National Intelligence Service which concluded that the majority of the population in KaNgwane favored unification with Swaziland. In explaining the secretiveness of the vote, a major South African newspaper reports that the former Chairperson of the South African government's Consolidation Commission, Rennie VanDer Walt, said that it was necessary to avoid intimidation " ... you know what it is like when you're talking to black people--the answer depends on who is asking the questions." Sunday Express, July 18, 1982; Rand Daily Mail, July 20, 1982. - 40 - vetoed two of KaNgwane•s original nominees, Senator G.F. Botha, former Commissioner General of KaNgwane, and Professor John Dugard, Faculty of Law of the University of the Witwatersrand.

C. The Cession As Proposed Will Constitute A Violation of the Right of Self-Determination of the South African People Sufficient to Render Any Such Agreement Void Under International Law

Article 53 of the Vienna Convention on the Law of Treaties is binding on all nations, including South Africa, as 2]_/ a matter of customary international law. By virtue of Article 53, any international agreement is invalid if its terms or reasonable consequences violate a peremptory norm of international law.W Moreover, the legislative history documents that the intent of the framers·of the Convention, and specifically of Article 53, was to include the existence of violations of the right of self-determination as a complete and sufficient bar to the validity of any international agreement as a matter of law.2.2.1 This rule applies equally to agreements or treaties of cession. The violation of the right of self-determination of the people of South Africa, as discussed herein, would constitute a violation of the peremptory norm of self-determination. Such a violation, on the facts of the proposed cession as they

21J See supra note 17 and accompanying text. 2lj See infra discussion in Section I. 2.2./ Id. - 41 - are now before this Commission, is more than sufficient under Article 53 and related articles of the Vienna Convention to invalidate the proposed agreement to cede KaNgwane or any other agreement serving the same purpose. Therefore, in this case any agreement of cession would be invalid, and since cession can only be accomplished through an agreement, the cession would be invalid. - 42 -

III. THE DENATIONALIZATION OF ALL SWAZI-SPEAKING SOUTH AFRICANS AS A COMPONENT OF THE CESSION OF KANGWANE TO SWAZILAND WILL CONSTITUTE AN ACT OF RACIAL DISCRIMINATION WHICH VIOLATES INTERNATIONAL LAW

Although, in principle, a state is free to determine 1. t s l aws o f na t 1ona . l 1 . t y,.§_QJ 1nternat1ona. . l recogn1t1on . . w1 . ll b e given only to those that are consistent with international law.ill The requirement of conformity with international law is a limitation on the general rule as stated in the Hague Convention on Certain Questions Relating to the Conflict of Nationality Law~ that each state may define its nationals by operation of its own laws. Nationality laws must be consistent with international conventions, international customs and the principles of law generally recognized with regard to

.§_QJ Note, Implementing Article XI of the Convention on the Reduction of Statelessness: International Legal 11 Aid, 11 16 Harv. Int'l. L. J. 657, 659 (1975); Brownlie, supra note 13, at 367. W See generally Friedmann, Lissitzyn and Pugh, International Law, Cases and Materials at 499-500 (1969); P. Weis, Nationality and Statelessness in International Law (1956); M. Whiteman, 8 Digest of International Law at 32-43 (1967). D. O'Connell in 2 International Law 737~38 (1965), points to two well-known cases illustrating the two prongs of the rule: the first, Nationality Decrees in Tunis and Morocco, 1923 P.C.I.J., ser. A/B, No. 4, stands for the proposition that questions of nationality are in the reserved domain of municipal law, in the absence of specific international treaties and agreements; the second is the Nottebohm case (Liechtenstein v. Guatemala), 1955 I.C.J. 4, which held that international law recognizes limits on the competence of a state to claim a person as a national; the connection between individual and state must be 11 real and effective 11 in order for a naturalization to gain international recognition. i1f 179 L.N.T.S. 89 (1930). - 43 - nationality. The relationship between municipal and international law with regard either to the acquisition or deprivation of nationality has been aptly described by Paul Weis: Acquisition and loss of nationality are determined by the municipal law of the State concerned. Such municipal law must be consistent with international law. Within the jurisdiction of the State con cerned, this municipal law is supreme. Outside its jurisdiction, before interna tional tribunals and the authorities of other States, the question of its con sistency with international law has to be examined. If the municipal law is found to be inconsistent with international law this means that the State which enacted it has incurred responsibility for the violation of an international legal duty. The State is obliged, by internatiorial law, to take remedial action, i.e., to bring its munic ipal law into accordance with international law, to revoke any decisions made under the inadmissible law, and to render such satis faction for the breach of international law as may be imposed on it.~ Deprivation of nationality constitutes an international delict if it is a component of, or will itself constitute, a breach of an international duty. w

A. South Africa Has An Obligation Under International Law To Avoid Any Act Which Violates The Jus Cogens of Racial Non-Discrimination

As a State Party to the United Nations Charter, South Africa is obligated as a matter of international law to respect

~ Weis, supra note 61, at 89. W Brownlie, The Relations of Nationality in Public International L'aw, 39 Brit. Y.B. Int'l L. 284, 339 (1963). - 44 - and observe human rights and fundamental freedoms for all without d 1st1nc. . t 1on . - as t o race, sex, 1 anguage or re l 1g1on. . . _§2/ Th e International Court of Justice confirmed this interpretation of the Charter obligations in its Namibia Advisory Opinion wherein it stated that: [T]o establish ..• and to enforce distinc tions, exclusions, restrictions, and limitations exclusively on grounds of race, color, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter . ..§._§/ Further, South Africa's obligation to respect human rights without racial distinctions derives from the fact that, as Judge Tanaka observed in his dissenting opinion in the South

West Africa cases (second phase) 1966, 11 the norm of nondis- crimination ••. on the basis of race has become a rule of customary international law ...W In 1970 the majority of the International Court, in its judgment in the Barcelona Traction case, referred to obligations erga omnes in contemporary international law which included "the principles and rules concerning the basic rights of the human person, including

_§2/ UN Charter Articles 1(3) and 56 read together with Article 55. i§l Namibia Advisory Opinion, supra note 19, at 58. 21J See South West Africa cases, supra note 19, at 286-301; id. at:455-6, 464, 467-9 (Op. of Padilla Nervo, J.); cf. id. at 154-5, 158-72 (VanWyck, J.); ~also Whiteman, supra note 61, at 244-46, 376-83; Huston, Human Rights Enforcement Issues of the United Nations Conference on International Organization, 53 Iowa L. Rev. 272-90 (1967); Brownlie, supra note 13, at 578-80. - 45 - protection from slavery and racial discrimination.'~ The customary international law rule of non-discrimination is based on current norms of conduct established by the international community, as evidenced in the practice of organs of the United 691 Nations, and by the provisions of the Universal Declaration of Human Rights, w the International Covenants on Human 72/ Rights,111 the European Convention on Human Rights,- the American Convention on Human Rights,111 the International

W Barcelona Traction case, supra note 19, at 32.

~ Indicative {but not exhaustive) of this are numerous resolutions on decolonization and apartheid, see, e.g., G.A. Res. 34/93A, 34 U.N. GAOR Supp. (No. 46) at 29, U.N. Doc. A/34/46 (1979); G.A. Res. 34/93c, 34 U.N. GAOR Supp. (No. 46) at 30, U.N. Doc. A/34/46 (1979); G.A. Res. 34/93G, 34 U.N. GAOR Supp. (No. 46} at 29, U.N. Doc. A/.34/46 (1979). 1Q/ Universal Declaration of Human Rights, art. 2, adopted December 10, 1948; G.A. Res. 217 A (III), U.N. Doc. A/810 (1948). 1lf International Covenant on Civil and Political Rights, arts. 2(1), 4{1), 26, opened for signature December 19, 1966, entered into force March 23, 1976; G.A. Res. 2200 A (XXI}, 21 U.N. GAOR Supp. No. 16, at 52, U.N. Doc. A 6316 (1966). International Covenant on Economic, Social and Cultural Rights, art. 2, para. 2, opened for signature December 19, 1966, entered into force January 3, 1976; G.A. Res. 2200 A (XXI), 21 U.N. GAOR Supp. No. 16 at 49, U.N. Doc. A 16316 (1966}. 11/ European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, signed November 4, 1950, entered into force September 3, 1953; 213 U.N.T.S. 222 {1950); reprinted, along with five subsequent protocols, in Council of Europe, Collected Texts (1979). 11/ American Convention on Human Rights, arts. 1(1), 24, 27(1), signed November 22, 1969, entered into force July 18, 1979; O.A.S.T.S. No. 36, at 1; O.A.S. Doc. OEA/Ser. K/XVI/1.1, Doc. 65, rev. 1, corr. 1 (1970); reprinted in Inter-American Commission on Human Rights, Handbook of Existing Rules Pertaining to Human Rights, O.A.S. Doc. OEA/Ser. L/V/II.50, Doc. 6 (1980). - 46 -

Convention on the Elimination of All Forms of Racial Dlscr1m1nat1on,.... Wh t e Un1te'd Nat1ons· Dec 1 arat1on· on t h e E l 1m1na' ' t.1on o f All F orms o f Rac1a . l D1scr1m1na . . . t 1on, . J2} an d th e . 1Y Genocide Convention. Inasmuch as these international instruments are evidence of a customary rule of international law regarding non-discrimination, they are evidence of international obligations which bind all states, including South Africa, irrespective of ratification. Nationality is an area wherein discrimination on the basis of race is proscribed. The right to nationality is a 771 clearly defined and basic human right. Thus, discriminatory nationality or citizenship measures based on racial, ethnic or religious grounds are impermissible under international

W International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, entered into force January 4, 1969; 660 U.N.T.S. 195 (1969); G.A. Res. 2106 A (XX), 20 U.N. GAOR Supp. No. 4, U.N. Doc. A/6014 (1965). 12/ United Nations Declaration on the Elimination of All Forms of Racial Discrimination, G.A. Res. 1904, 18 U.N. GAOR Annex 2 (Agenda Item 43) at 17, U.N. Doc. A/5459 (1963). 1]1 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, entered into force Jan. 12, 1951, 78 U.N.T.S. 277. ]_]_/ See, e.g., International Convention on the Elimination of All Forms of Racial Discrimination, supra note 74, art. 5(d) (ii); Convention on the Reduction of Statelessness, art. 9, adopted Aug. 30, 1961, entered into force Dec. 13, 1975, U.N. Doc. A/CONF. 9/15 (1961); Universal Declaration on Human Rights, supra note 70, art. 15; International Covenant on Civil and Political Rights, supra note 71, art. 24(3). These international instruments elaborate and regulate details of the already existing obligations imposed by the Charter. Schwelb, The International Obligation of Parties to the Convention, 1 Am. Soc . of In t ' 1 L • ( 19 7 5 ) • - 47 - law.1Y Widespread opposition to the Nazi decrees denationalizing German Jews contributed substantially to the emergence of a· rule of customary international law which prohibits any denationalization measure based on racial, religious or similar grounds.w This customary rule is reiterated and confirmed in several international instruments. Article 9 of the Convention on the Reduction of Statelessness provides that a "contracting state may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds."w In Article 5 (d) (ii) of the International Convention on the Elimination of All Forms of Racial Discrimination, signatory states undertake to guarantee

~ McDougal, Lasswell and Chen, Nationality and Human Rights: The Protection of the Individual in External Arena, in International Law Essays: A Supplement to International Law in Contemporary Perspective 555, 603 (M. McDougal and W. Reisman ed. 1981). Weis, supra note 61, at 123, 125, 126. 1J.J There was widespread condemnation of the racially discriminatory mass denationalization decrees of the Nazi and fascist regimes. They were considered to be "an abuse of rights" and "a violation of international law constituting international liability." See, e.g., H. Lauterpacht, The Function of Law in the International Community 300 (1933); Abel, Denationalization, 6 Mod. L. Rev., 57, 65. In 1952 the German Federal Supreme Court held that the 1941 denationalization decrees were so arbitrary as to lack the quality of law, thereby rendering the confiscations under authority of the decrees to be null and void ab initio. In 1968, the German Federal Constitutional Court held that the decrees "violated fundamental principles. It is so intolerable a decree irreconcilable with justice that it must be considered to have been null and void ex tunc." See Mann, The Present Validity of Nazi NationalitY'Laws, 89 L.Q. Rev. 194, 199 (1973).

~ Convention on the Reduction of Statelessness, supra note 77, art. 9. - 48 - without distinction as to race, equality before the law, inter alia with respect to the enjoyment of the right to nationality.W Article 3 of the Declaration Against Racial Discrimination encourages states to make "particular efforts to prevent discrimination based on race, colour, or ethnic origin especially in the fields of, [inter alia], access to c1't' 1zens h' 1p. .. w It is without question, then, that discriminatory denationalization based on race or ethnicity contravenes a peremptory norm of international law -- the norm of racial non- discrimination.

B. The Denationalization Plan Envisioned As A Component of the Cession of KaNgwane To Swaziland Is Racially Discriminatory In Intent and Effect

It is anticipated that, as has been the case with the "independence" conferred by South Africa on other homelands,w

W International Convention on the Elimination of All Forms of Racial Discrimination, supra note 74, art. S(d) (ii). W U.N. Declaration on the Elimination of All Forms of Racial Discrimination, supra note 75, art. 3. _§_}/ According to John Dugard, internationally respected professor of South African constitutional law, while the statutes conferring independence on the Transkei, Ciskei, Venda and BophuthaTswana do not explicitly refer to race as the criterion for denationalization, the categories are adequately inclusive to affect every black person. Further, in pr~ctice they have been applied to all Blacks and no Whites. The South African statutes conferring independence on Transkei, BophuthaTswana, (Continued) - 49 - the cession of KaNgwane to Swaziland will entail the denationalization of all South Africans who are considered by the government to be ethnically Swazi. On its face, this

(Footnote 83 continued) Venda and Ciskei all contain a common provision that states, "Every person falling in any of the categories of persons defined in Schedule B shall be a citizen of the Transkei (BophuthaTswana, Venda, or Ciskei as the case may be) and shall cease to be a South African citizen." Schedule B attached to all statutes varies slightly in each case. In essence, the schedule lists the following categories or persons as nationals of the new state and hence as persons automatically deprived of their South African nationality: Every person designated as a citizen of the homeland in terms of the 1970 National States Citizenship Act, that is, every Black person linked by birth~ language, or cultural affil iation with the homeland. Every person born in or outside the homeland if at least one parent was a citizen of the homeland in terms of the 1970 National States Citizenship Act. Every person domiciled in the homeland for at least five years. Every South African national who is not already a citizen of another homeland who speaks a language used by members of any tribe that forms a part of the population of the homeland in question, including any dialect of any such language. Every South African national who is not already a citizen of another homeland "who is related to any member of the population contemplated in above action or has identified himself with any part of such population or is culturally or otherwise associated with any member of such population." Dugard, supra note 3, at 43, 45. - 50 - constitutes a clear violation of the international law against denationalization based on race, ethnicity or language. Secondly, when viewed in its larger context, that conclusion is irrefutable. It would be"inaccurate to view the proposed cession of KaNgwane to Swaziland as a single self- contained event. It is fundamentally part and parcel of the government's bantustan policy, a policy which is itself rooted 841 1n. t h e concep t o f rac1a . 1 separa t.1on, apart' h e1 . d . According to government policy, South Africa's black population is arbitrarily and artificially subdivided into various ethnic groups which are in turn considered "nations." Each "nation" is to develop separately in a government- designated homeland carved out of South Africa proper. Even within its own terms of reference, the policy is full of anomalies which reflect its arbitrariness. The ethnic bases of

~ The international community has unequivocally condemned South Africa's apartheid policy as a violation of international law. The U.N. has documented South Africa's violations of the Universal Declaration of Human Rights, condemned the practice of apartheid, and declared apartheid to be a crime against humanity, comparable to genocide. Study of Apartheid and Racial Discrimination in Southern Africa, U.N. Docs. E/CN. 4/949 & Add. 1-5 (1967-8) and E/CN .4/979 & Add. 1-8 (1968-69); International Convention on the Elimination of All Forms of Racial Discrimination, supra note 74, art. 3; International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, entered into force July 18, 1976, G.A. Res. 3068 (XXVIII), .28 U.N. GAOR, Supp. (No. 30) 166, U.N. Doc. A/9030 (1974). The U.N. General Assembly has also explicitly condemned South Africa's establishment of the bantustans in furtherance of apartheid. G.A. Res. 3411 D (XXX) U.N. GAOR Supp. (No. 34) (Agenda Item 53) at 37, U.N. Doc. A/10342. G.A. Res. 2775E, 26 U.N. GAOR Supp. (No. 29) at 42, U.N. Doc. A 8429 (1971). G.A. Res. 2671 F, 24 U.N. GAOR Supp. {No. 28} at 33, U.N. Doc. A/8028 (1970). - 51 -

the proposed nations have been frequently changed both with regard to the number of homelands and the nomenclature of the so-called "national units" into which the African people are to be divided. !& On the other hand, the white population, which is similarly diverse in culture, language and tradition, is

~ In 1959, the Promotion of Black Self-Government Act (No. 46) set up eight black "national units," classifications of which have since changed. For example, in 1979 the Tswana national unit was changed to the South-Ndebele national unit as defined by that Act. Laws on Plural Relations and Development Amendment Act, No. 16, 1979. Since the homelands were first established in law, their number has increased from eight to ten. With regard to ethnic classification of Blacks: The South African government classifies Africans according to .its own categories of "tribe"; regardless of each individual's identification with one or more tribes, or with none, they are officially assigned to one or other of the ethnic groupings by White officials •.. There are some serious '. anomalies, however, even according to this simplistic division: for one of the offi cial tribes, the Xhosas, there are two bantustans (the Transkei and the Ciskei); one bantustan, Lebowa, is officially for two different tribes; while for many there is none at all ... [T]he entities offi cially used to categorize Africans are not actually tribes, but are arbitrary groups of tribes whose identity is considered irrelevant; ... In some areas the majority of the people are categorized as a group other than that for which the bantustan was intended. Rogers, supra note 1, at 35-40. Boundaries between bantustans have also changed. When territory was added to the Transkei and BophuthaTswana, it was removed from other bantustans, respectively Ciskei and Qwa Qw a . I d . at 3 3 . - 52 - considered to constitute a single nation that will maintain control of the structure of power in South Africa. In 1978, the Minister for Bantu Administration explained the government's plans: "If our policy is taken to its logical conclusion as far as the Black people are concerned, there will be 86/ not one Black man with South African citizenship."- Therefore, the raison d'etre for the cession is indisputably a racial one. The South African government desires to maintain its present power structure by transforming all of South Africa's Blacks into citizens of ''independent" black homelands or of independent black states like Swaziland. The result of such a policy is "denationalization" on racial grounds in clear violation of international law.

~ Dugard, supra note 3, at 44. - 53 -

IV. THE COMPULSORY IMPOSITION OF SWAZI NATIONALITY ON ALL SWAZI-SPEAKING SOUTH AFRICANS WILL VIOLATE THEIR RIGHT OF SELF-DETERMINATION

A. The Right of Self-Determination Has Modified The Traditional Rule That The Nationality Of The Acquiring State Automatically Devolves On Residents of Ceded Territory

The traditional doctrine that the inhabitants of ceded territory automatically become nationals of the acquiring state,~ has been modified by modern notions of human rights

~ See Schwarzenburger, supra note 13, at 303-304; Brownlie, supra note 13, at 638-43; Weis, supra note 61, at 139-64; Mann, The Effects of Changes on Sovereignty Upon Nationality, 5 Mod. L. Rev. 218 (1942); Harvard Research Draft Convention on Nationality, 23 Am. J. Int'l L. Supp. 15, art. 18 (1929). The rule presumed, of course; that municipal legislation of the acquiring state validly conferred its nationality on the inhabitants of the ceded territory. It remains to be seen whether Swaziland, with a present population of approximately 500,000, will in fact incorporate 800,000 new citizens from South Africa. The Swazi Citizenship Order of 1974 which defines who qualifies as citizens of Swaziland establishes certain restricted and conditional categories of citizenship. Among them are: People born in Swaziland of a father who was not a citizen at the time of their birth. People born outside Swaziland either of a father who was not a citizen of Swaziland or of a father who, though a citizen of Swaziland, was not domiciled in Swaziland at the time. These people may acquire citizenship by registration, but the application may be refused at the discretion of the Minister or, if granted, revoked by the Minister. If applied to those South Africans who will be denationalized by South Africa, these provisions may operate to create thousands of stateless people, at least ,if and until registration as Swazi citizens is effectuated. See Richardson, supra note 32, at 204-208, on the (Continued) - 54 -

and the recognition of the jus cogens character of the right of 'self-determination. w The modern view advocates a right of option as regards nationality for the population of ceded territory.~ This right would allow all persons whose nationality may be affected by territorial transfers to consent to the new nationality or to opt to retain the old nationality. .This view com- .2.Q/ ports with the widespread state practice of including in

(Footnote 87 continued) problem of statelessness in the context of Transkei "independence." W McDougal, Lasswell and Chen, supra note 78, at 574; Brownlie, supra note 13, at 649-50; Onuma, Nationality and Territorial Change: In Search of the State of the Law, 8 Yale J. of World Public Order, Vol. 8, 22-35 (1981). The debates of the International Law Commission reveal the view of several of its members that the law relating to state succession must conform with the principles of~ cogens. Summary Records of the 960th Meeting, [1968] 1 Y.B. Int'l L. Comm'n 102, U.N. Doc. A/CN.4/204/SER.A/1968 (Bedajaoui); Summary Records of the 964th Meeting, [1968] 1 Y.B. Int'l L. Comm'n 125, U.N. Doc. A/CN.4/204/SER.A/1968 (Ustor and Castaneda); Summary Records of the 965th Meeting, [1968] 1 Y.B. Int'l L. Comm'n 132, U.N. Doc. A/CN.4/200 and Add. 1 and 2; A/CN.4/202/SER.A/1968 (Tabibi); Summary Records of the 966th Meeting, [1968] 1 Y.B. Int'l L. Comm'n 138, U.N. Doc. A/CN.4/200 and Add. 1-2; A/CN.4/202/SER.A/1968 (Bartos); Summary Records of the 967th Meeting, [1968] 1 Y.B. Int'l L. Comm'n 144, U.N. Doc. A/CN.4/200 and Add. 1-2; A/CN.4/202/SER.A/1968 (El- Erian). Brownlie, supra note 13, at 501. The Commission recognized the right of self-determination as forming part of the~ cogens. See supra note 20.

~ See McDougal, Lasswell and Chen, supra note 78, at 574; t and Brownlie, supra note 13 at 649-52; Onuma, suora note 88. \ .2.Qj That the practice is not universal has led certain writers to assert that it is therefore not mandated by international I law. See Weis, supra note 61, at 163.

. II - 55 -

treaties of cession and peace a provision allowing inhabitants of the ceded territory to retain the original nationality.~

11/ For a detailed discussion of state practice on this topic, see Onuma, supra note 88. Treaties of cession, disintegration or annexation wherein the affected population has been given an option of whether to accept the nationality of the transferring f state or new state include: Treaty of Peace with Italy of 1947, signed at Paris, Feb. 10, 1947, entered into force for U.S. Sept. 15, 1947. 61 Stat. 1245; TIAS 1648; 4 Bevans 311; l 49 and 50 UNTS; Treaty between the Allies and Associated Powers and Poland (Protection of Minorities), signed at Versailles, I June 28, 1919; entered into force Jan. 10, 1920 [reg. with the Secretary at the League of Nations, No. 36, Oct. 21, 1920]; I Treaty Between the Allied and Associated Powers and Czechoslovakia (Protection of Minorities), signed at St. l Germain-en-Laye, Sept. 10, 1919; entered into force July 16, 1920 [See League of Nations Special Official Journal, Special Supp., No. 73 (1929) .] Peace Treaty of Versailles with Germany l of 1919 (1919 For. Rel. 55, 740, 743 [Paris Peace Conference, XII], Senate Doc. 51, 66th Congress, 1st session). See also Article 4 of the Inter-American Convention on Nationality which provides: t '~ l In case of the transfer of a portion of the territory on the part of one of the states I signatory hereof to another of such states, the inhabitants of such transferred I territory must not consider themselves as t nationals of the state to which they are t transferred, unless they expressly opt to l change their original nationality. Inter-American Convention on Nationality, Int•l Conference for t American States 7, Montevideo, Dec. 3-26, 1933. Signed Dec. 26, 1933. See also 1 L. Oppenheim, International Law, 511, 552-554 (H. Lauterpacht 8th ed. 1955); Gettys, The Effect of Changes of Sovereignty on Nationality, 21 Am J. Int•l L. 268, I 271 (1927); Hudson, Report on Nationality Including State lessness, [1952] 2 Y.B. Int•l L. Comm. 9, 10; Kunz, Nationality and the Option Clauses in the Italian Peace Treaty, 41 Am. J. Int 1 1 L. 611, 622 (1947). ll I .j - 56 -

Further, national courts have held treaties and statutes unlawful for failing to provide a right of option. w Writing in 1948, Lord McNair observed: The hardship of an involuntary change of nationality has led with increasing frequency in recent years to the adoption of one of the following forms of mitigation: (a) Plebiscite. The treaty may stipulate for the cession of particular pieces of territory to depend upon the result of a plebiscite by the nationals of the ceding state inhabiting the territory; such a provision occurs in several articles of the Peace Treaties of 1919-1920, but it was not generalized; (b) Option of nationality. The treaty may give the nationals of the ceding state inhabiting the territory ceded an option to retain the nationality of I the ceding state; if they exercise that option, the acquiring state may, in default of contrary stipulation, expel them as any aliens may be expelled; (c) Option to emigrate. The treaty may give the inhabitants an option to emigrate within a certain time and also retain their nationality. The growth of the principle of self determination tends to favour the adoption of one or more of these palliatives. It must, however, be emphasized that the law i does not enjoin them and they do not apply

W See, ~' Ratz-Leinert and Klein v. Nederlands Beheers Institullt lHQTland 1956), reported in Lauterpacht, 24 Int'l L. Reports 536 (1957); Compulsory Acquisition of Nationality case (Federal Republic of Germany 1960), reported in Lauterpacht, 32 Int'l L. Reports 166 {1966). - 57 -

unless the high contracting parties choose to adopt them._w Since the date of McNair's observations on the right of option and state succession, the powerful movement of decolonization and the consequent developments in international law have established "the will of the people" to be an essential ingredient in all decisions that affect their status. In the instant case, the proposed cession and the anticipated denationalizations would conflict with the i requirements of international law since: (1) the transfer of t the territory and the denationalizations proceed from racially discriminatory motivations, objectives, and practices, (2) the IJ I homelands policy is antithetical to self-determination, (3) the ceding government, South Africa, is not representative of the affected people, and (4) the proposed cession arrangements offer no option to the affected population to retain South African nationality.

B. Swazi Nationality Cannot Be Imposed On Those Swazi-Speaking South Africans Who Are Non-Residents Of The Ceded Territory

Successor states generally have not b~en considered competent to impose their nationality on individuals who are non-residents of the transferred territory without their

~ A. McNair, Legal Effect of War, 389-90 (3d ed. 1948). f .t I 1 - 58 - w l consent. For example, in U.S. ex rel. Schwarzkopf v. Uhl, District Director of Immigration, a U.S. circuit court of appeals, citing "generally accepted principles of international law," and "the accepted right of election," concluded that an Austrian national resident in the United States when Germany annexe d Austr1a. h a d not acqu1re. d German nat1ona . 1'1ty. .22} T h e court held that it was the United States' position that "only the 'inhabitants' who 'remain' in the territory, or by treaty are permitted to elect nationality, are to be deemed nationals of the annexing state" and that non-inhabitants are not forced to accept the new nationality "without their consent, express or tacit."w In Peinitsch v. German State and Others, the German Yugoslav Mixed Arbitral Tribunal held: It is a rule of international law that when a territory passes to a new sovereign it must in case of doubt be assumed that those inhabitants of the territory in question who are not domiciled (domicilies) there do not acquire the new nationality.11J

2iJ See Weis, supra note 61, at 145-48, 156-159; O'Connell, The Law of State Succession, 253; In re Mervyn Jones [1956] 5 Int'l and Camp. L. Q. 230-44; Slouzak Minority in Teschen (Nationality) case [1940] 11 Ann. Dig. No. 93 at 179; Ministry of Home Affairs v. Kemali [1962] 40 Int'l L. Rep. 191; North Transsylvania Nationality case [1965] 43 Int'l L. Rep. 191. Cf. In re Andries [1950] 17 Int'l L. Rep. No. 26 at 109 (dual nationality arising); Hudson, Report on Nationality Including Statelessness, [1952] 2 Y.B. Int'l L. Comm. at 9, U.N. Doc. A/CN.4/50 (1958). 12f U.S. ex rel. Schwartzkopf v. Uhl, District Director of Immigration, 137 F.2d 898 (2d Cir. 1943). 1&j Id. at 902. 11/ Peinitsch v. German State and Others [1952] 2 Ann. Dig. No. 121 at 227, 228, guoted in Weis, supra note 61, 142. - 59 -

This appears to be the rule accepted in British practice as well. w

This result comports with the long established general rule that, apart from the issue of nationality of the inhabitants of ceded territory, naturalization cannot be accomplished withbut the consent of the affected individ- .22/ ual. Likewise, Weis states the rule that "the acquisition of a new nationality must contain an element of voluntariness on the part of the individual acquiring it •.. it must not be 100/ conferred against the will of the individual ...-- National and international tribunals and the practice of states have established that international recognition need not be accorded l to the nationality of a state imposed on the recipient without t his consent, express or tacit, and against his will. For example, in protesting a Peruvian constitutional provision which purported to impose nationality on aliens who owned real pro- perty in Peru, the British Charge d'Affairs at Lima stated: l "[I]t is an incontrovertible principle of the law of nations that the consent of a foreigner is necessary to legalize his I naturalization in another State whatever may be the provisions

W A. McNair, 2 International Law Opinions, 21-26 (1956).

~ See, e.g., Harvard Research Draft Convention in Nationality, supra note 87. 11 [T]he general principle that no state is free to acquire the allegiance of natural persons without their consent is believed to be generally recognized ... \ See also, Retroactive Loss of Austrian Nationality case (Fed. r Rep. of Germany), reported 1n Lauterpacht, 43 Int'l L. Reports l 194 (1971). ~ Weis, suora note 61, at 110 . I .l I - 60 -

.lQl/ of the civil law of that State on the subject .... " This principle was applied by the United States-Mexican Mixed lQY 1.QlJ Commission and the German-Mexican Claims Commission to reject the validity under international law of a provision of the Mexican Constitution of 1857 which purported to vest alien l_Qy landowners with Mexican nationality. State practice has also confirmed the view that the compulsory imposition of nationality merely on the basis of residence is also lQ2/ incompatible with international law. Weis recognizes the view that the forced imposition 6f nationality is a human

101/ British Foreign Office Reports 61, vol. 70, Dispatch No. 68, quoted in Weis, supra note 61, at 103. 102/ Established under the Claims Convention, July 4, 1868- February 1, 1869, United States-Mexico, 1 U~S.T. 1128. 1Ql/ Established in the 1920's for the adjudication of claims arising from the Mexican Revolution. See McDougal, Lasswell, and Chen, supra note 78, at 571. ---- lQi/ See 3 J. Moore, A Digest of the International Arbitrations to Which the United States Have Been a Party, 1898; Anderson and Thompson v. Mexico 2479-81 (1871); Elliot v. Mexico 2481 (1868); Willis v. Mexico 2482 (1868); Bowen v. Mex1co 2482 (1868); In re Rau [1930] 6 Ann. Dig. No. 124, at 251. See similar decisions by the Italian-Mexican Claims Commission in the cases of Occelli, Sarli & Martello (unreported) and by the Spanish-Mexican Claims Commission in the case of Barcena (unreported) cited in Ann. Dig. at 251 (1931-1932). See Weis, supra note 61, at 104-106 . .lQ2j An 1889 decree of the Provisional Government of Brazil declared that all foreign nationals residing in Brazil would be considered Brazilians unless they declared to the contrary within six months. Joint protests were lodged against the Decree by Great Britain, Portugal, Spain, France, and Austria Hungary. See Weis, supra note 61, at 103-104. .I 1

- 61 - t i rights violation: "By the compulsory imposition of nation-

ality, violence is done to the individual 1 s rights just as if he were arbitrarily arrested or forced to marry.•..lQY

.1.9_§/ Id. at 112. 1 - 62 - I ~ v. A VOID TREATY OF CESSION AND THE VIOLATION OF THE JUS COGENS OF SELF-DETERMINATION AND RACIAL NON-DISCRIMINATION WILL TIRGGER AN AFFIRMATIVE OBLIGATION ON THIRD STATES TO WITHHOLD RECOGNITION OF THE VALIDITY OF THE CONSEQUENCES OF THE PURPORTED CESSION AND DENATIONALIZATIONS t• t

As established earlier, any treaty which conflicts with the peremptory norms of self-determination and racial non- discrimination is null and void. The invalidity arising out of a breach of jus cogens is not limited only to the treaty itself but extends to the consequences of, and the relationships 107/ I arising out of such agreements. The invalidity arising out of a breach of jus cogens I goes even further and gives rise to a duty of third states not t to recognize the purported effects of the acts done in viola- l tion of jus cogens. As the International Court of Justice confirmed in the Barcelona Traction case, states have obliga- I tions to the international community as a whole and, in view of the importance of the rights involved, "all States can be held I! to have a legal interest in their protection; they are obliga- .l.QY tions erga omnes.' This legal interest which vests in all states is the source of their duty to withhold any recognition

of legitmacy to situations maintained in violation of ~ cogens. Sir Gerald Fitzmaurice has stated:

1QlJ Espiell, supra note 37. 108/ Barcelona Traction case, supra note 19, at 32 .

.: - 63 - i 'I. l l i There are cases in which overriding rules of jus cogens produce a situation of l irreducible obligation and demand that illegal actions be ignored or not allowed to affect the obligations of other i States .l.Q2/ t In other words, illegalities with respect to ~ cogens cannot be purged or acquiesced in. This conclusion is supported by the opinion of the International Court of Justice in_its Nam1 . b.1a Ad v1sory. 0 p1n1on. . llO/ w1t. h 1ts . emp h as1s . on t h e d uty o f non-recognition of situations arising out of illegality. In the Namibia Advisory Opinion the International Court of Justice held that in their subsequent relations with either South Africa or Namibia, all states have a duty to refrain from any act that would imply recognition of any legitimacy of South Africa's presence in Namibia. Additionally, the court drew some conclusions about the content of that duty of all states to refrain from any act that might be interpreted as recognition of the validity of South Africa's presence in Namibia. These conclusions are based on generally accepted principles of international law regarding the duty of states to refrain from any dealings that would permit an illegal actor to reap benefits as a consequence of its illegal

1Q2j The General Princioles of International Law Considered From the Standpo1nt of Customary Internat1onal Law, [1957 II] Recueil des Cours, Academie de Droit International, 92, 122. 110/ Namibia Advisory Opinion, supra note 19 at 54. - 64 -

. 111/ act: ex injuria non oritur JUS. These principles may be properly applied to similar situations in which a state violates peremptory norms of international law, such as self- determination and non-discrimination. In the context of the proposed cession of KaNgwane to Swaziland and the proposed attendant denationalizations, international law would impose a general duty on states by virtue of the breach of jus cogens to consider the cession and the denationalizations nullities and to do nothing that would imply legitimacy to the purported effects of the cession or denationalizations. Some of the possible consequences are: 1. Swaziland would have no valid claim of sovereignty over the territory of KaNgwane. With respect to

the land mass that constitutes KaNgwane or those Swazi-speaking South Africans purportedly denationalized in conjunction with the cession, none of the competences generally recognized as being part of a state's sovereign rights would vest in Swaziland. Legislative, judicial or administrative acts of the Government of Swaziland with regard to KaNgwane would be void or voidable. Swaziland would have no title to the land mass that is KaNgwane and would consequently be unable to convey

111/ Brownlie, supra note 13, at 498. The history of the universal non-recognition of the Smith regime in Rhodesia and the Bantustans in South Africa indicates that state practice supports the principle that non-recognition is a duty under international law with respect to political systems (and their consequences) established for the purpose of perpetuating the violation of the norms of racial non-discrimination and self determination. See generally, McDougal & Reisman, suora note 3 7 •

• - 65 - title to private individuals or enterprises or create enforce able rights derived from the state. 2. Diplomatic, consular, trade or other relations with Swaziland might be impaired to the extent that they purport to relate 'to the territory of KaNgwane or the population purportedly denationalized by South Africa. 3. Companies or other commercial enterprises, owned by third states or under the direct control of third states, might decline to engage in any investment activities, commercial or industrial enterprises, or concessions in Swaziland which might imply any recognition of Swaziland's purported authority in KaNgwane. 4. With respect to acts of private individuals and corporate bodies not under direct control of their government, third states might discourage investment in KaNgwane and might withhold from their nationals or such private companies any government loans, credit guarantees, and other forms of financial support that would be used to facilitate trade or commerce in KaNgwane in such a way as to give credence to Swaziland's purported authority in that territory. 5. With respect to the municipal law of third states where claims might arise or where rights might be sought to be enforced with respect to matters in KaNgwane or with respect to the population purportedly denationalized by South Africa, Swaziland would be denied access to municipal courts, immunity from process or the deference commonly accorded the - 66 - legislative and judicial acts of foreign recognized 112/ governments. 6. South Africa would not divest itself of any duties or responsibilities to those it would purport to denationalize or with respect to the land it would purport to transfer. Whereas the consequences outlined above are illustrative, they are not exhaustive of the measures which third states might take in accordance with their obligations under international law by reason of the illegality of the purported cession by South Africa of KaNgwane to Swaziland and the purported denationalization of Swazi-speaking South Africans. Obligatory non-recognition of the consequences of such illegal acts and policies by a state is in actuality a minimal sanction.

112/ Brownlie, supra note 13, at 101; Kaplan and Katzenbach, The Political Foundations of International Law, in Interna tional Law, in Contemporary Perspective 307 (M.S. McDougal and W.M. Reisman, ed. 1981). A series of U.S. cases have held that, with the exception of those laws necessary for public order, health, and safety, in general the acts of an unrecog nized regime will not be enforced by U.S. courts. Latvian State Cargo & S.S. Line v. McGrath, 188 F.2d 1000 (D.C. Cir. 1951); The Maret, 145 F.2d 431 (3d Cir. 1944); Latvian State Cargo & S.S. Line v. United States, 116 F. Supp. 717, 126 Ct. Cl. 802 (1953); Estonian State Cargo & Passenger S.S. Line v .. United States, 116 F. Supp. 447, 126 Ct. Cl. 809 (1953). See also, Texas v. White, 74 u.s. (7 Wall) 700 (1868). - 67 -

CONCLUSION

In considering the validity under international law oe the proposed cession of KaNgwane to Swaziland, this memo randum has made the following conclusions: 1. The Government of South Africa would violate international law should it agree with the Government of Swaziland to cede KaNgwane to Swaziland without the consent of all of the people of South Africa. Hence, a referendum or plebiscite of merely the Swazi~speaking population of South Africa or of the residents of KaNgwane would not be suffi cient. The relevant population whose consent must be ascertained with regard to a cession of land belonging to South Africa comprehends the totality of the people of South Africa. 2. The Government of South Africa would violate international law should it purport to denationalize the Swazi speaking people of South Africa or the residents of KaNgwane without their consent. 3. Inasmuch as such a cession and denationalization would constitute violations of peremptory norms of interna tional law, any agreement of cession would be null and void and the purported cession and denationalizations themselves would be without legal effect. Further, such illegal acts would trigger an affirmative obligation of third states to withhold - 68 -

recognition of the validity of the consequences of the

purported cession and denationalizations.

Respectfully submitted,

ROBERT H. KAPP GAY J. MCDOUGALL FRED N. FISHMAN Director, Southern Africa Co-Chairmen Project WILLIAM L. ROBINSON La~yers' Committee for Executive Director Civil Rights Under Law Lawyers' Committee for GOLER TEAL BUTCHER Civil Rights Under Law Professor of Law Howard University Law School HENRY RICHARDSON Professor of Law Temple University Law School

Attorneys for Arnie~~ Cur i~~

Dated: March 13, 1984