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Constitutive Questions in the Negotiations for Namibian Independence

Published online by Cambridge University Press:  27 February 2017

Henry J. Richardson III
Henry J. Richardson III*
Affiliation:
Temple University
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Extract

Namibia, a territory in southwest Africa adjacent in the west to South Africa and Botswana, derives its notoriety from the fact that its history is a major component of the history and oppression of South African apartheid. But for this fact, the current guerrilla warfare there would perhaps be dismissed as another obscure conflict in some distant land. Few persons on the outside would know about it in detail, and absent special circumstances overtly involving the superpowers or some spreading of the war, fewer still would care.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 1 , January 1984 , pp. 76 - 120
Copyright
Copyright © American Society of International Law 1984

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References

1 Note, Namibia, South Africa and the Walvis Bay Dispute, 89 Yale L.J. 903, 903 (1980).

2 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase), 1966 ICJ Rep. 6, 43 (Judgment of July 18).

3 South-West Africa—Voting Procedure, 1955 ICJ Rep. 67 (Advisory Opinion of June 7); Admissibility of hearings of petitioners by the Committee on South West Africa, 1956 ICJ Rep. 23 (Advisory Opinion of June 1); South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Preliminary Objections), 1962 ICJ Rep. 319 (Judgment of Dec. 21).

4 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16 (Advisory Opinion of June 21) [hereinafter cited as Advisory Opinion on Namibia], reproduced in 10 ILM 677 (1971). For an enumeration of the basic elements embodied in these rights, see Umozurike, U., Self-Determination in International Law 192 (1972)Google Scholar.

5 See Meret, , Canada and Namibia, 17 Can. Y.B. Int’l L. 314 (1979)Google Scholar. See also Herman, , The Legal Status of Namibia and the United Nations Council for Namibia, 13 id. at 306 (1975)Google Scholar.

6 Landis, , The Never-Ending Namibian Negotiations, in Lawyers Committee for Civil Rights under Law, a Special Report: Southern Africa, at SA-1 (Oct. 1982)Google Scholar [hereinafter cited as Landis, Negotiations]; Landis, E., Namibian Liberation: Self-Determination, Law and Politics (Episcopal Churchmen for South Africa, 1982) [hereinafter cited as Landis, E., Liberation]Google Scholar.

7 Austin, , Namibia and Zimbabwe, 35 Current Legal Probs. 203 (1982)CrossRefGoogle Scholar.

8 McDougal, Lasswell & Reisman, , The World Constitutive Process of Authoritative Decision, in International Law Essays: A Supplement to International Law in Contemporary Perspective 191, 192 (1981)Google Scholar [hereinafter cited as Constitutive Process]. The debt to Professor McDougal and Associates is apparent throughout this article. In their seminal essay, “the constitutive process” is defined as “authoritative power exercised to provide an institutional framework for decision and to allocate indispensable functions.” This is to be distinguished from “public order” decisions, which “may be specialized to the shaping and sharing of wealth, enlightenment, and all other values.”

9 Austin, supra note 7, at 207, 212, 218. See Lelyveld, , Inside Namibia: A Journey through South Africa’s Disputed Territory, N.Y. Times Magazine, Aug. 1, 1982, at 13, 16 Google Scholar. The risk to legal principles presented by such defiance is underscored by this reminder:

Decisions taken from mere calculations of expediency or by naked power, in apparent disregard of authority, may however, acquire a retrospective authority if the degree of their effectiveness is such as to reshape community expectations; more importantly, a flow of comparable decisions through time, whatever their initial relation to authority, may under certain conditions perform a prospective function in creating new expectations of authority in regard to projected future decisions.

Constitutive Process, supra note 8, at 191.

10 Austin, supra note 7, at 211 n.23. That resolution was basically a response to the “Turnhalle Constitution,” a South African-backed scheme of non-SWAPO, mostly white groups in Namibia to divide Namibia into “Bantustans” and “homelands” so as to bring Namibia, and especially the Ovambo population (from whom SWAPO derives significant support), under more effective white minority control. Elections were to be held along the lines of ethnic representation.

11 Constitutive Process, supra note 8, at 282.

12 SC Res. 385 (Jan. 30, 1976).

13 78 Dep’t St. Bull. 20 (1978).

14 Landis, Negotiations, supra note 6, at SA-1, SA-4.

15 Advisory Opinion on Namibia, 1971 ICJ Rep. at 56.

16 Thus, in a statement before the Subcommittee on Security and Terrorism of the Senate Judiciary Committee on March 22, 1982, Assistant Secretary Crocker stated:

In South Africa, we are pursuing a careful policy of constructive engagement, encouraging the Government of Prime Minister P. W. Botha and other elements in South African society to move away from apartheid toward a South Africa changed—modern and strong—with bright prospects for stability and development rooted in justice, free of the problems that now stand in the way of closer U.S.-South African relations. . . . .

. . . . [T]he policy that the Reagan Administration is pursuing is one calculated to meet head on the intentions that the Soviet Union may have in southern Africa. These objectives would represent not only a serious threat to our own interests there but are objectives which would also push the people of that area deeper into an environment of chaos, violence and disorder. . . .

Dep’t St. Bull., No. 2063, June 1982, at 46–47.

17 It is clear that the foreign policy of the Government of South Africa is one that includes attempts to destabilize most, if not all, of the surrounding black African states, particularly Mozambique, Angola, Zambia and Zimbabwe. These attempts have been exported as far north as the Seychelles Islands. See Angola, Reports Advance by South African Troops , N.Y. Times, Aug. 14, 1982, at A2 Google Scholar, col. 6; N.Y. Times, June 6, 1983, at 1, and 6, col. 3 (interview with South African General Constand Viljoen). See generally Regional Destabilization in Southern Africa: Hearings Before the Subcomm. on Africa of the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. (1982).

Nevertheless, for whatever ultimate reasons, the Contact Group members decided it was in their various interests to come together to push, or work with, South Africa towards an “internationally acceptable” Namibian independence plan. See U.S. Aide Sees Breakthrough on Namibian Plan, N.Y. Times, Sept. 17, 1981, at A9 (statement of Chester A. Crocker, Assistant Secretary of State for Africa).

18 GA Res. 31/152 (Dec. 20, 1976).

19 See Lelyveld, supra note 9, at 13, 17.

20 Namibia Parties Approach Accord, N.Y. Times, Oct. 29, 1981, at A12.

21 Beginning in 1978, South Africa ruled the territory through a “Turnhalle” political structure incorporating members of these groups. On Jan. 18, 1983, for reasons yet unclear, South Africa abolished the territorial government and resumed direct rule of the territory. More recently, South Africa has moved toward establishing “internal” (i.e., excluding SWAPO) constitutional arrangements in Namibia. See Namibia: Crisis in U.S. Policy Towards Southern Africa, TransAfrica F. 5 (1983) [hereinafter cited as Namibia].

22 The purposes and objectives of the Turnhalle Constitution appear in 16 Africa Inst. Bull. 22, 306–10 (1978).

23 The list is almost endless, but the death of Stephen Biko generated significant anger. See, e.g., The Stephen Biko Inquest, N.Y. Times, May 2, 1980, at CI; South African Medical Panel’s Move in Biko Case Stirs Controversy, N.Y. Times, June 29, 1980, at A10; N.Y. Times, May 9, 1980, at C24; Cries for Blood from Throats of Steel, Wall St. J., Mar. 27, 1981, at 27.

24 The first plan was introduced in the Security Council on April 10, 1978, UN Doc. S/12636, reprinted in 17 ILM 762 (1978) (see infra note 35); the second or revised version on Jan. 25, 1982, N.Y. Times, Jan. 27, 1982, at A3; and the third plan has not yet been released in a public text.

25 Article 34 of the UN Charter provides: “The Security Council may investigate any dispute or any situation which might lead to international friction or give rise to a dispute in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.”

26 30 UN SCOR Supp. (Apr.-June) at 47, UN Doc. S/11713 (1975). See also 30 UN SCOR (1824th mtg.) at 7(1975).

27 30 UN SCOR (1829th mtg.) at 13 (1975) (microfilm).

28 SC Res. 385 (1976), supra note 12.

29 SC Res. 418 (Nov. 4, 1977).

30 E.g., Article 39 of the UN Charter stipulates: “The Security Council shall determine the existence of any threat to peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

31 Para. 4, Res. 418 (1977), supra note 29.

32 SC Res. 439 (Nov. 13, 1978).

33 These elections were held under the Turnhalle Constitution; see notes 10 and 21 supra.

34 SC Res. 439, supra note 32.

35 Letter dated 10 April 1978 from the Representatives of Canada, the Federal Republic of Germany, France, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the President of the Security Council, 33 UN SCOR Supp. (April-June 1978) at 17, UN Doc. S/12636 (1978).

36 For example, under Article 2(5) of the UN Charter, or to the extent that the wishes of nonpermanent members of the Security Council may have been thwarted by a veto. Cf. Uniting for Peace Resolution, GA Res. 377 (V) (Nov. 3, 1950); see Bancroft, Can the UN Become a Collective Security Organization?, 24 Dep’t St. Bull. 772 (1951).

37 E.g., UN Department of Public Information, Namibia: A Unique UN Responsibility 24 (March 1981).

38 SC Res. 431 (July 27, 1978).

39 See discussion infra on interpreting the scope of the text of Resolution 435 at notes 108– 119.

40 SC Res. 435 (Sept. 29, 1978). See Report by the Secretary-General submitted pursuant to paragraph 7 of Security Council resolution 435 (1978), para. 1, UN Doc. S/12903 (1978).

41 Report of the Secretary-General concerning the implementation of Security Council resolutions 435 (1978) and 439 (1978), UN Doc. S/13120 (1979).

42 See generally text relating to notes 48–71 infra.

43 The inquiry here obviously goes to any de facto or implied agency relationship between the Contact Group and the Security Council. Under Article 29 of the Charter, “the Security Council may establish such subsidiary organizations as it deems necessary for the performance of its functions.” The repertory of UN practice has classified such subsidiary organizations into (1) standing committees, (2) commissions, and (3) ad hoc drafting committees. There is no evidence of any such Council action here.

44 Austin, supra note 7, at 203, 221.

45 Constitutive Process, supra note 8, at 274.

Prescription refers to the projection of policy for value shaping and sharing accompanied by coordinate expectations of authority and control. As a process of communication, prescription proceeds on three levels: (1) the designation of policies (fact contingencies, a norm and a sanction), (2) the communication of the authority of the policy and (3) the communication of control intentions of the community to sustain it. Defined in this manner, prescription includes the outcomes both of formally authoritative prescriptive process and of unorganized interaction.

46 Id. at 274, 281.

47 Id. at 276.

48 Id.

49 See Austin, supra note 7, at 211, 212.

50 Lelyveld, supra note 9, at 16, 17. See also Study Commission on U.S. Policy Toward Southern Africa, South Africa: Time Running Out 390 (Univ. of California Press, 1981). See generally Ya Otto, J., Battlefield Namibia (1980)Google Scholar.

51 Landis, Negotiations, supra note 6, at SA-1 and SA-4.

52 Id. The plan proposed by the Contact Group was claimed to address all elements of Resolution 385 (1976). Western Proposal for the Settlement of the Namibian Situation, 17 ILM 762 (1978); Res. 385, supra note 28. The proposal recognizes that the “key to an internationally acceptable transition to independence is free elections for the whole of Namibia as one political entity with an appropriate United Nations role in accord with resolution 385 (1976).” 17 ILM at 763. This departs from the standard in Resolution 385 of UN “supervision and control.”

53 See Lelyveld, supra note 9, at 18.

54 Such responsibilities are clearly conveyed by Security Council decisions under Article 25 of the Charter, whether enacted pursuant to chapter VI or chapter VII. See text to notes 101–111 infra. Other Security Council resolutions are entitled to some respect in terms of legal significance under the Charter. Cf. Voting Procedure case, supra note 3, 1955 ICJ Rep. at 115–20.

55 It is clear that South Africa, as a matter of perception and policy, considers SWAPO to be a “terrorist” organization. E.g., N.Y. Times, Feb. 17, 1983, at A12. “Terrorist” now has legal implications under international law, including the denial of legitimacy to such a group, as compared with a liberation organization fighting a colonial regime. To the extent that the United States or any other state in these negotiations does not oppose this South African policy, or moves to cooperate with it, the strong implication is that cooperating states may be working for a similar denial of legitimacy to SWAPO. See Austin, supra note 7, at 221, 226. See also Crocker statement, supra note 16, at 46:

We categorically condemn all terrorist and other violent acts that either of these organizations [SWAPO, ANC] take to try to bring about change in Namibia and South Africa. Our policy in relationship to both seeks to channel the impetus toward change into peaceful channels. We seek . . . to strengthen and make more viable the possibilities of peaceful change. In so doing, we seek to obviate the necessity for terrorism that some parties involved in developments in the region choose to perceive.

See generally Mcdougal, M., Lasswell, H. & Chen, L., Human Rights and World Public Order 107 (1980)Google Scholar. Accord Dep’t of State, Memorandum of Conversation, April 15–16, 1981, at 44, 45 (App. VII), reprinted in Namibia, supra note 21 (South Africa declares that it cannot live with the prospects of a SWAPO victory).

56 See Segal, R., The Race War 81 (1966)Google Scholar; Degnan, , The “Three Wars” of Mozambique, Afr. Rep., No. 5, 1973, at 6 Google Scholar; Austin, supra note 7, at 210.

57 See Mcdougal, M. & Feliciano, F., Law and Minimum World Public Order 241–44 (1961)Google Scholar.

58 Richardson, , Self-Determination, International Law and the South African Bantustan Policy, 17 Colum. J. Transnat’l L. 185, 190–93 (1978)Google Scholar.

59 See GA Res. 2871 (Dec. 20, 1971). See also N.Y. Times, Sept. 15, 1981, at A13 (and text of GA Res. ES-8/2, Sept. 14, 1981); GA Res. 37/233, paras. 1, 2 (Dec. 20, 1982).

60 Angola Reports Advance by South African Troops, supra note 17; N.Y. Times, Mar. 17, 1982, at A3, col. 4; South Africans in Angola Raid, N.Y. Times, July 31, 1981, at A5. See Lelyveld, supra note 9, at 14.

61 Advisory Opinion on Namibia, 1971 ICJ Rep. at 57–58.

62 See Crocker, , The Search for Regional Security in Southern Africa, Dep’t St. Bull., No. 2073, April 1983, at 50 Google Scholar, 52 (statement before Subcommittee on Africa of House Foreign Affairs Committee, Feb. 15, 1983).

63 1948 ICJ Rep. 57 (Advisory Opinion of May 28) [hereinafter cited as Conditions].

64 Id. at 62.

65 Id. at 63.

66 Id.

67 Western Sahara, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16) (opinion on the status of the territory under international law).

68 Case concerning the Northern Cameroons (Cameroon v. UK) (Preliminary Objections), 1963 ICJ Rep. 15 (Judgment of Dec. 2).

69 Id. at 33.

70 Id. at 36.

71 Id at 34.

72 Richardson, supra note 58, at 191. GA Res. 1514, 15 UN GAOR Supp. (No. 16) at 66, UN Doc. A/4684 (1960).

73 See Conditions, 1948 ICJ Rep. at 68.

74 See McHenry, , An Assessment of the Reagan Administration at Mid-Term, Transafrica F., No. 4, Spring 1983, at 9 Google Scholar. See also Lelyveld, supra note 9, at 16, 17. See Dep’t of State, Memorandum, supra note 55, at 44.

75 Richardson, supra note 58, at 212–13.

76 Hovey, G., Namibia’s Stolen Wealth: North American Investment and South African Occupation 7, 19–41 (African Fund, 1982)Google Scholar.

77 UN Council for Namibia, Decree #1 on the Natural Resources of Namibia, UN Doc. A/ AC.131/33 (Oct. 7, 1974). Cf Booysen & Stephan, Decree No. 1 of the United Nations Council for South West Africa, 1 S. Afr. Y.B. Int’l L. 63–86 (1975) (questioning the validity of the decree in international law, but conceding national governments may elect to enforce it, id. at 73–86). And see SC Res. 301 (Oct. 20, 1971); UN Doc. S/10372 (1971).

78 The Non-Paper on Namibia, Oct. 26, 1981, reprinted in Austin, supra note 7, at 219.

79 Id. at 219.

80 Id. at 220, 221.

81 Id. at 221.

82 Id.

83 Id. at 223, 224.

84 Id. at 221, 222.

85 Id. at 222, 223.

86 Id. at 222.

87 Richardson, supra note 58, at 190–93.

88 See International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted Nov. 30, 1973), entered into force July 18, 1976, Annex to GA Res. 3068 (XXVIII); Austin, supra note 7, at 222.

89 State Treaty for the Re-establishment of an Independent and Democratic Austria, May 15, 1955, 6 UST 2369, TIAS No. 3298, 217 UNTS 225.

90 See Verdross, , Austria’s Permanent Neutrality, 50 AJIL 61, 62 (1956)Google Scholar.

91 217 UNTS at 227, Preamble to the Austrian Treaty; see Verdross, supra note 90, at 67.

92 Sec 1 D. O’Connell, International Law 5 (1965).

93 See Fredrickson, G., White Supremacy: A Comparative Study in American and South African History 281 (1981)Google Scholar. Year by year, the costs to outside states of dealing openly with South Africa have risen, and it seems clear they will continue to do so in view of recent increased liberation movement actions in its downtown cities.

94 The constitutional dimension and value of Resolution 435 (1978) has been recognized not only by the parties/participants, but also by the international community. 1978–1982 Report[s] of the UN Council for Namibia.

For an overview of the various positions and opinions of the parties/participants, see UN CHRON., Oct. 1978, at 5–16; Namibia’s acceptance, AFR. Rep., July-Aug. 1978, at 27; UN CHRON., Mar. 1978, at 11; South Africa’s lack of acceptance, 33 UN SCOR Supp. (July-Sept.) at 41 (1978); Contact Group Sets Timetable, N.Y. Times, Sept. 25, 1981, at A13; U.S. approval, 78 Dep’t St. Bull. 21,024 (1978); front-line states’ acceptance and endorsement of, 33 UN SCOR Supp. (July-Sept. 1978) at 5, 43; Namibia: A Unique UN Responsibility, supra note 37, at 2, 27.

95 Para. 11, GA Res. ES-8/2 (1981), supra note 60.

96 Id.

97 SC Res. 435 (1978), supra note 40; UN Doc. S/12903 (1978), supra note 40.

98 Letter of the Government of South Africa, dated Oct. 19, 1978 (accepting the five Western nations’ proposed plan for Namibian independence), 33 UN SCOR Supp. (Oct.-Dec. 1978) at 36, UN Doc. S/12900 (1978).

99 See E. Landis, Liberation, supra note 6, at 7–8.

100 Letter dated 22 December 1978 from the representative of South Africa to the Secretary- General, 33 UN SCOR Supp. (Oct.-Dec. 1978) at 113, UN Doc. S/12983 (1978).

101 SC Res. 276 (Jan. 30, 1970).

102 1971 ICJ Rep. at 52.

103 McDougal, & Reisman, , Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AJIL 1, 5 (1968)Google Scholar.

104 Article 25 of the Charter provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

105 Higgins, , The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter*, 21 Int’l & Comp. L.Q. 270, 279 (1972)Google Scholar; McDougal & Reisman, supra note 103, at 14; Arthur Goldberg, J., International Law in the United Nations, 56 Dep’t St. Bull. 140, 143 (1967)Google Scholar.

106 Chapter VI encompasses Articles 33–38 of the Charter.

107 See Advisory Opinion on Namibia, 1971 ICJ Rep. at 52. Conceivably, the Court could have also adduced reasons based on broad international policy and expectations. To limit Article 25 to chapter VII Council decisions would confront the Council with the choice between accelerated impotency and using its ultimate strategy in situations that do not necessarily warrant enforcement action. As Secretary-General Dag Hammarskjold warned in the Congo crisis, answering charges that the United Nations was really pursuing enforcement measures under peacekeeping authority, the use of chapter VII authority carries the clear possibility of overwhelming international pressures on the United Nations to take actions that would supplant and sabotage local government decision making in the crisis and thus bring even greater instability. This must be added to the continuing problems that the Council has in gaining member state cooperation in implementing chapter VI and other resolutions that are recommendatory in law but nonetheless significant. Under a contrary holding, the authority of such resolutions in the international community would be further undermined.

108 See Advisory Opinion on Namibia, 1971 ICJ Rep. at 53. It is difficult to see how the Court could have done otherwise. To have mandated decision on the application of Article 25 under a fixed rule would have drawn the Court into legislating in an area where flexibility is both useful and jealously guarded within the Council. To have restricted the legal issue to being decided on traditional elements of interpretation, e.g., “plain and natural meaning of the text,” would have placed the Court well behind current and durable trends in the law of treaties, as for example under Article 27 of the Vienna Convention on the Law of Treaties. See Rosenne, S., The Law of Treaties 102, 214 (1970)Google Scholar.

109 33 UN SCOR Supp. (July-Sept. 1978) at 33, note 112 infra.

110 1971 ICJ Rep. at 51–56.

111 SC Res. 301, supra note 77.

112 Resolution 435 (1978) was heavily influenced by the Report of the Secretary-General pursuant to paragraph 2 of Resolution 431 (1978), 33 UN SCOR Supp. (July-Sept. 1978) at 33–36, UN Docs. S/12827 and S/12865 (1978). On the face of the text, the Contact Group played a role only by reference of incorporation in the preamble of Resolution 431.

113 See Article 35 of the Charter in text at note 25 supra.

114 See Reparations for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 96 (Advisory Opinion of Apr. 11).

115 One present example of these expectations among certain governments is the refusal of the present U.S. administration to sign the recently completed Law of the Sea Convention and its denial of legal significance to the Convention in its present form. President Reagan . . . Law of the Sea and Ocean Policy, Current Pol’y, July-Aug. 1982, at 1; Hearings on Deep Seabed Hard Mining Resources (H.R. 13,904) Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess. 1, 83 (1972) (asserting view that UN resolutions have no legal effect).

116 See supra note 40.

117 Namibian Plan Approved as Secretary-General States Importance of Credible U.N. Presence, UN Chron., Oct. 1978, at 5.

118 Gross, , The Double Veto and the Four Power Statement on Voting in the Security Council, 67 Harv. L. Rev. 251, 256 (1953)Google Scholar; Gross, , Voting in the Security Council: Abstention from Voting and Absence from Meetings, 60 Yale L.J. 209, 253 (1951)Google Scholar; Comment of Kunz, Josef L., Legality of Security Council Resolutions of June 25 and 27, 1950, 45 AJIL 137, 141 (1951)Google Scholar; see 2 Repertory of Practice of United Nations Organs 83–84 (1955).

119 It is now generally recognized that Resolution 435 (1978) constitutes the basis for an internationally acceptable plan for Namibian independence. See generally 33 UN SCOR Supp. (Oct. -Dec. 1978) at 36–40; UN Docs. S/12900, 12902, and 12903 (1978).

120 Richardson, supra note 58, at 190; Emerson, , Self-Determination, 65 AJIL 459 (1971)CrossRefGoogle Scholar.

121 M. McDougal, H. Lasswell & L. Chen, supra note 55, at 531–60; U. Umozurike, supra note 4, at 132–36.

122 The analogy is to the burden on the party who will plead the principle of rebus sic stantibus, M. McDougal & F. Feliciano, supra note 57, at 366, or plead under Article 53 of the Vienna Convention on the Law of Treaties.

123 1965 UN Juridical Y.B. 225; 1966 Report of the ILC, UN GAOR Supp. (No. 9) at 50, UN Doc. A/6309/Rev.1 (1966); Art. 31, Vienna Convention on the Law of Treaties; I. Sinclair, the Vienna Convention on the Law of Treaties 75 (1973).

124 Nanda, , Self-Determination in International Law, 13 Case W. Res. J. Int’l L. 257–80 (1981)Google Scholar; Emerson, supra note 120; Higgins, R., The Development of International Law through the Political Organs of the United Nations 103–05 (1963)Google Scholar.

125 South Africa uses regional economic cooperation to foster dependency by neighboring black African nations and military incursions as an instrument of foreign policy aimed at co-opting or destabilizing those nations.

126 Dugard, , The Opinion on South West Africa (Namibia): The Teleologists Triumph, 88 S. Afr. L.J. 460 (1971)Google Scholar.

127 Dugard, J., South West Africa/Namibia Dispute 447,491 (1973)Google Scholar. This jurisprudential position taken and asserted by South Africa against the authority of the United Nations over the Namibian territory is but a restatement of the Soviet jurisprudential principle that “customary norms of international law being as a result of agreements among states, the sphere of such norms is limited to the relations between the states which accepted these norms.” Tunkin, , Remarks on the Customary Norms of International Law, 49 Calif. L. Rev. 419, 428 (1961)Google Scholar. This position reflects the traditional position. North Sea Continental Shelf Cases (W. Ger./Den.; W. Ger./Neth.), 1969 ICJ Rep. 3, 45 (Judgment of Feb. 20); Colombian-Peruvian asylum case, 1950 ICJ Rep. 266, 276–77 (Judgment of Nov. 20); The Lotus, 1927 PCIJ, ser. A, No. 10, at 18.

The ICJ’s handling of the customary law issue in the North Sea cases has been severely criticized. Indeed, one author has observed, “[i]t is nevertheless remarkable that so little notice should have been taken of the acceptance as general customary law” of the “doctrine [sic]” of the continental shelf. Friedmann, , The North Sea Continental Shelf Cases—A Critique, 64 AJIL 229, 232 (1970)Google Scholar. Cf. Goldie, , Sedentary Fisheries and the North Sea Continental Shelf Cases, 63 AJIL 536 (1969)CrossRefGoogle Scholar. However, a general custom is binding upon all states, including dissenting states. Akehurst, , Custom as a Source of International Law, 47 Brit. Y.B. Int’l L. 1, 23–28 (1974)Google Scholar; D’Amato, A., The Concept of Custom in International Law 190 (1971)Google Scholar; D’Amato, , The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1129 (1982)Google Scholar. Cf. Filartiga v. Peña-Irala, 630 F.2d 876, 884 (2d Cir. 1980); Verdross, , Règies générates du droit international de la paix, 30 Recueil Des Cours 271, 296 (1929 V)Google Scholar; Basdevant, , Règies générates du droit de la paix, 58 Recueil Des Cours 471, 488–90 (1936 IV)Google Scholar.

This rule applies irrespective of whether the state was in existence at the time of the creation of the customary rule of international Law. Thus, when a customary norm exists, “a state whose practice neither supports nor rejects” the rule is bound. Akehurst, supra, at 24. Once the customary rule has become operative with respect to a state, a subsequent unilateral termination is ineffective.

There are two exceptions to this general principle: (1) where a state dissents from the inception of the rule and sustains it thereafter, Anglo-Norwegian fisheries case, 1951 ICJ Rep. 8, 131 (Order of Jan. 10); and (2) where the custom is special and not general, Akehurst, supra, at 29, citing A. D’Amato, supra. The rationale for this exception is that by definition a special custom is one that conflicts with the general custom.

If these principles are applied to the Namibian situation, the pronouncements, conduct and actions of states lead to the conclusion that the international status of Namibia is a general customary norm of international law, jus cogens. International status of South-West Africa, 1950 ICJ Rep 128, 132–34 (Advisory Opinion of July 11).

(South Africa’s authority over that territory arises and has been governed by that norm from its inception in 1919.) South Africa accepted the mandate and the obligations arising from it as of that date. The custom is not a special one. Therefore, the norm became operative with respect to South Africa and that nation cannot later unilaterally terminate the full force of the norm under the pretext of lack of consent. See South West Africa, 1966 ICJ Rep. at 293 (Diss. Op. of Judge Tanaka).

128 Cf. Dickerson, R., The Fundamentals of Legal Drafting 96 (1965)Google Scholar. Principles of statutory construction are not wholly foreign to treaty interpretation, mutatis mutandis.

129 See note 112 supra.

130 SC Res. 432 (July 27, 1978); Note, supra note 1, at 916.

131 33 UN SCOR Res. at 12, 13 (1978).

132 Para. 2, Res. 431, supra note 38.

133 Resolution 431 (1978) expressly mentions the Contact Group proposal but is silent on the group’s authority.

134 See Constitutive Process, supra note 8, at 219.

135 Letter of July 12, 1982 from Ambassadors of the Contact Group to Secretary-General confirming that all parties have agreed to the principles concerning the Constituent Assembly and the constitution for an independent Namibia, thereby attesting to the completion of Phase I. Privately held UN Doc. of 1982.

136 Privately held informal UN Doc. of 1982.

137 Namibia is a bilateral problem between the United Nations and South Africa. We cannot accept outside interference but we do welcome assistance in solving the Namibian problem.

If Angola wants to discuss the Cuban troops with America and South Africa, it is their baby. I cannot interfere. What I cannot accept is the presence of Cuban troops in Angola as a precondition to Namibian independence.

N.Y. Times, Feb. 9, 1983, at A8.

138 See N.Y. Times, June 1, 1983, at A10, col. 3.

139 Report of the Secretary-General submitted pursuant to Resolution 431 (1978), UN Doc. S/12903 (1978).

140 Contact Group proposal, supra note 24, UN Doc. S/12636, para. 5 (1978). See Austin, supra note 7. See also Landis, Negotiations, supra note 6.

141 See Lelyveld, supra note 9, at 13, 16.

142 Preamble to Res. 435 (1978), supra note 40.

143 Report of the Secretary-General, supra note 112, at 34.

144 One thing is conceded, namely, that the Government of South Africa is pursuing an international settlement that would not only undermine UN “supervision and control,” but

an international settlement which they would pursue only if it served South Africa’s ends. If they could not get an international settlement on their terms, then they would pursue an internal settlement. And so that there would be no delay, they were in the process of this internal settlement over the last several years.

McHenry, supra note 74, at 12. His assessment is further buttressed by:

We recognize that the search for that self-determination has involved a complicated negotiation process symbolized in UN Security Council Resolution 435. We have no intention of usurping the UN’s role or departing from UN context. However, we cannot be constrained by a rigid adherence to the letter of UNSC 435, if by doing so, an internationally acceptable settlement in Namibia is impeded rather than aided.

Dep’t of State, Memorandum, supra note 55, at 3 (statement of Assistant Secretary Crocker). The paradox, then, is this: An internationally acceptable agreement to South Africa is one that fosters the interests of that nation. An agreement within UN-defined parameters will not satisfy the South African policy. Any settlement outside Resolution 435 may not only fail to protect the legitimate interests of the Namibian people, but may be void ab initio.

145 See Report, supra note 41, para. 11.

146 See text following note 132 supra.

147 See Contact Group letter, supra note 135.

148 Advisory Opinion on Namibia, 1971 ICJ Rep. at 28–31.

149 One example of the divergence between constitutional conceptions tailored for Western purposes and the wishes of the African people was the Nyasaland-Malawi constitutional process initiated under the auspices of the United Kingdom in 1956. See Marshall, H., From Dependence to Statehood in Commonwealth Africa 1, 105 (1982)Google Scholar.

150 The central question here is the extent to which classic Western constitutional principles will be incorporated into a diverse African society that by definition must marry its African traditions—including concepts of statehood—to the imperatives of modern international life. The challenge represented by the latter is one that each African state has had to confront. Arguably, none has yet completely met that challenge, but the black southern African states have had the additional burden of establishing viable constitutional processes in the context of heavy South African influence and of Western linkages thereto.

151 The revised Western proposals for the constitution for an independent Namibia made on Dec. 17, 1981 are reprinted in Austin, supra note 7, at 223–25.

152 Estoppel was recognized as a “general principle of International Law by civilized nations.” Case concerning the Factory at Chorzów, 1928 PCIJ, ser. A, No. 17, at 33–34.

153 For example, the independence Constitution of Malawi (Nyasaland), chapter II (14) provides:

It must be recognized that Nyasaland will continue in this period to be dependent upon the United Kingdom for budgetary aid; and for that reason Her Majesty’s Government do not feel able to relinquish in the initial stages of self-government all control over financial and economic matters. The transitional restrictions which we have in mind are no more than Her Majesty’s Government regard as necessary to be kept there in order that they may discharge their responsibility to the British Parliament arising out of the assistance which the British Government are giving to Nyasaland. Briefly, they consist of the retention by the Governor of reserved executive and legislative powers for the purpose of maintaining and securing the financial and economic stability of Nyasaland, and of ensuring that any conditions attached to a financial grant made by Her Majesty’s Government to Nyasaland are complied with.

H. Marshall, supra note 149, at 359.

154 Emerson, supra note 120, at 463.

155 Further, the holders of potentially asserted implicit “rights” to reenter the territory have multiplied to several countries and are not confined to a single colonial power. Although the foregoing represents an attitude rather than a legal concept, it is significant relative to issues raised in note 150 supra.

156 In contrast, Resolution 216 (1965) placed the primary responsibility of leading the people of Southern Rhodesia (Zimbabwe) to self-determination and independence upon the Government of the United Kingdom. See 23 UN SCOR Res. 5, 6 (1968).

157 Note 29 supra.

158 Advisory Opinion on Namibia, 1971 ICJ Rep. at 53.

159 The Security Council reiterated that position by demanding “an immediate end to foreign military intervention in the Republic of Cyprus.” Para. 3, Res. 353 (July 20, 1974).

160 See Kalb, , The Congo Cables 44 (1981)Google Scholar.

161 Schachter, , Law, Politics and Action in the UN, 109 Recueil des Cours 165, 216, 219–24 (1963)Google Scholar.

162 Id.

163 Id. at 218.

164 Quoted at id.

165 Id. at 219.

166 Id. at 221.

167 Id. at 222. Secretary-General Hammarskjöld’s cautious policy about the possibility of using UN troops to force the end of Katanganese secession was

determined less by his awareness of Western desires than by his own commitment to the principle that the United Nations should not intervene in the domestic affairs of a Member state. While it was obvious that the United Nations was already up to its ears in the Congo’s domestic affairs, Hammarskjold refused to intervene with military force to impose a particular political settlement.

M. Kalb, supra note 160, at 43–44.

168 M. Kalb, supra note 160, at 231.

169 In applying this principle to the Namibian situation, the issue arises whether Article 2(7) limitations on the Council’s action apply when the United Nations itself is the sovereign of the territory. The issue is valid, but the imposition of constitutive guidelines will have by far the greater, and intended, impact on Namibia as an independent state. Accordingly, the issue is obviated unless the Council (or some other organ of the United Nations) retains a formal postindependence role in the new state.

170 See Contact Group letter, supra note 135.

171 See Landis, Negotiations, supra note 6, note 50.

172 Declaration on Namibia and Programme of Action in Support of Self-Determination and National Independence for Namibia, GA Res. S-9/2, May 4, 1978, reprinted in 17 ILM 754, 766–69 (1978). But see text at notes 12, 51, and 140 supra.

173 GA Res. S-9/2, supra note 172. These subsequent elections presumably will be carried out under the newly drafted electoral provisions of the constitution, as adopted by the Constituent Assembly. Recourse by way of appeal as to the interpretation of these provisions could be had to the Phase I guidelines or, as discussed, to Resolution 435. Landis, Negotiations, supra note 6, at 13.

174 Advisory Opinion on Namibia, 1971 ICJ Rep. at 50–53; see McDougal, M. & Reisman, W., International Law in Contemporary Perspective 138, 139–40 (1980)Google Scholar.

175 E. Landis, Liberation, supra note 6, at 13. Advisory Opinion on Namibia, 1971 ICJ Rep. at 58.

176 See Goodrich, L., Hambro, E. & Simons, A., Charter of the United Nations 236–39 (1969)Google Scholar.

177 The analogy here is to the availability of the Privy Council in London as a final judicial appeal from high courts of countries that are members of the British Commonwealth. See Jackson, R., The Machinery of Justice in England 1, 104 (1977)Google Scholar.

178 For a discussion of the use of some of these repressive measures against the Ovambos by the South African Government, see J. Dugard, supra note 127, at 520–22.

179 For a revealing study that documents South African domination and oppression, and the rise of SWAPO, see J. Ya Otto, supra note 50.

180 See Catholic Institute for International Relations, Namibia in the 1980’s, at 49, 50, 65 (1981); see also N.Y. Times, Apr. 26, 1983, at A7; Christian Sci. Monitor, Feb. 28, 1983, at 8; see generally N.Y. Times, Apr. 6, 1983, at A4.

181 See L. Goodrich, E. Hambro & A. Simons, supra note 176, at 56–58.

182 See text following note 55 supra.

183 See Bell, D., Race, Racism and American Law 656–65 (2d ed. 1980)Google Scholar. See also Smith, , Alternatives to Paralysis: A Working Paper Precipitated by the Affirmative Action Cases, 61 Ore. L. Rev. 317, 327–29, 331 (1981)Google Scholar.

184 Cf. Freeman, , Truth and Mystification in Legal Scholarship, 90 Yale L.J. 1229, 1236–37(1981)Google Scholar.

185 Art. 160(f), UN Convention on the Law of the Sea, UN Doc. A/CONF.62/122 (1982). For an indication of U.S. concern over this provision, see Malone, U.S. Policy and the Law of the Sea, Dep’t St. Bull., No. 2052, July 1981, at 48, 49.

186 See J. Dugard, supra note 127, at 520 (13,000 Ovambo workers strike against South Africa and its orchestrated labor unions in Dec. 1971); Labor Situation in South Africa—Fall 1980: Hearing Before the Subcomm. on Africa of the House Comm. on Foreign Affairs, 96th Cong., 2d Sess. 1 (1980) (staff report).

187 Black Defiance at South African Funeral, N.Y. Times, Aug. 15, 1982, at A3; South Africa to Crack Down on Blacks in Urban Areas, N.Y. Times, Aug. 21, 1982, at A3; South Africa’s Hopes for Quick Namibia Settlement Fades with SWAPO Strike, Christian Sci. Monitor, Apr. 22, 1982, at 4; Namibia’s Black Lutherans Stand up to White Authorities in South Africa, N.Y. Times, Jan. 5, 1981, at A2; J. Ya Otto, supra note 50.

188 See text following note 104.

189 G. Fredrickson, supra note 93, at 94, 97–99.

190 Emerson, supra note 120.

191 See Austin, supra note 7. Although Resolution 418 (1977), supra note 29, imposing an arms embargo against South Africa was adopted unanimously, France and the United Kingdom and the United States have either vetoed or abstained on decisions on the South African question. E.g., Res. 475 (June 27, 1980) on the invasion of Angola by South Africa; Res. 454 (Nov. 2, 1979) on South African incursions into Angola; Res. 387 (Mar. 31, 1976) on the violation of the territorial independence of Angola. See E. Landis, Liberation, supra note 6.