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An Appraisal of the Comprehensive Anti-Apartheid Act of 1986

Published online by Cambridge University Press:  24 April 2015

Winston P. Nagan
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The eradication of apartheid in South Africa is a major item on the agenda of the international community. The apartheid system fundamentally threatens international peace and security. Moreover, human rights violations in South Africa indict a system of governance fundamentally incompatible with even the most limited interpretation of international law and morality under the United Nations Charter. Thus, the international community is being pressed to weave collaborative strategies to bring South Africa into compliance with contemporary international obligations and expectations.

In the international system, states and other actors commonly employ the bases of power at their disposal in logistic strategies designed to influence others to behave in ways deemed more consistent with their own interests or the common interest of mankind. The strategies invoked may be coercive or persuasive and may involve the use of military force, economic policies, diplomacy or ideology. With regard to apartheid, an increasing international consensus is emerging that the use of economic sanctions against the Republic of South Africa might best facilitate a political transformation from a racial oligarchy to a democratic state.

Type
Perspectives on South African Liberation Valparaiso University School of Law Symposium October 28-31, 1987
Information
Journal of Law and Religion , Volume 5 , Issue 2 , 1987 , pp. 327 - 365
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1987

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References

1. See McDougal, M., Lasswell & Chen, Human Rights and World Public Order 521–560 (1981) [hereinafter McDougal]Google Scholar; Resolutions Adopted by the United Nations General Assembly on the Question of Apartheid 1962–1986, U.N. Centre Against Apartheid, Notes and Documents 87–10593 (1987) [hereinafter Resolutions]Google Scholar; see also Apartheid: The Facts (International Defense and Aid Fund For Southern Africa in cooperation with the United Nations Centre Against Apartheid, 1983) [hereinafter Apartheid: The Facts]Google Scholar.

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.; see also The Report of the Study Commission on U.S. Policy Toward Southern Africa, South Africa: Time Running Out (1981)Google Scholar; Johnson, R.W., How Long Will South Africa Survive (1977)CrossRefGoogle Scholar; Nagan, , South Africa: The Limits of Peaceful Change, in American Policy in Southern Africa: The Stakes and the Stance Ch. VI (Lemarchand, R. ed. 1981) [hereinafter Nagan]Google Scholar.

7. Compehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086 (1986) [hereinafter the Act]. For an excellent summary of further background factors leading to the passage of the Act, see Sanctions: The Time Has Come! in Washington Notes on Africa 4 (Summer 1985).

In 1985, the “issue of South African apartheid finally emerged as a dominant legislative agenda item.” Id. The proposed Anti-Apartheid Act of 1985 was overwhelmingly approved in the House, 295 to 127, on June 4, 1985. The broad support for the bill in the House was the “direct” result of the agitation against apartheid generated by the Free South Africa Movement. Id. The 1985 bill contained a laundry-list of sanctions including:

a ban on new corporate investment in South Africa;

a ban on U.S. bank loans to the South African government;

a ban on the importation of gold coins;

a ban on computer sales to South Africa;

a ban on nuclear collaboration with South Africa.

There were several Republican efforts to weaken the bill including an amendment that sanctions not take effect unless the African National Congress [hereinafter- ANC] unilaterally renounced violence or if a referendum among South African blacks disapproved of sanctions. Id. The most vociferous defender in the U.S. Congress of the apartheid regime is Senator Jesse Helms of North Carolina. Helms led a filibuster against the bill and was supported by several conservative senators, including: Jeremiah Denton (R-AL), John East (R-NC), Jake Garn (RUT), Orrin Hatch (R-UT), Chic Hecht (R-NV), Gordon Humphrey (R-NH), Paul Laxalt (R-NV), James McClure (R-ID), Steven Symms (R-ID), Strom Thurmond (R-SC) and Malcolm Wallop (R-WY). The bill died in the Senate.

By 1985, the European Economic Community and other U.S. allies were no longer willing to tolerate a “business-as-usual” posture regarding South Africa. Id. at 2. Moreover, the U.N. Security Council, with the U.S. and Britain abstaining, passed a resolution to encourage the adoption of voluntary economic sanctions against South Africa. Id. at 3.

For relevant background on the debate over U.S. sanctions, see Lewis, , House Panel Backs New South Africa Sanctions, N.Y. Times, 06 11, 1986, at Y6, col. 1Google Scholar. On the efforts of the Reagan Administration to derail congressional sanctions, see also Gwertzman, Buying Time On Sanctions, id, July 16, 1986, at Y1, col. 5. One administrative measure designed to mollify Congress was the appointment of a black ambassador to South Africa. See Moffatt III, U.S. Said to Pick Black Diplomat to be Ambassador to South Africa, id, August 30, 1986, at Y4, col. 5.

8. For an Afrikaner perspective of the region, see Sampson, A., Black and Gold: Tycoons, Revolutionaries and Apartheid (1987) [hereinafter Sampson]Google Scholar.

9. It is generally conceded that under the present state of emergency, South Africa is effectively under military rule. See Younghusband, , S. African Liberals Decry Military Rule, Wash. Times, 06 24, 1987Google Scholar, reprinted in African Press Clips [hereinafter AFPC], XXII, No. 25, at 6Google Scholar. On the emergence of neo-nazi forces in South Africa, see Cornell, , To The Far Right of Apartheid, N.Y. Times, 11 23, 1986Google Scholar, reprinted in AFPC, XXI, No. 46, at 2Google Scholar. According to Sampson, the essential ingredients of revolutionary success are present in South Africa. First, the rulers have lost confidence in their theories. Second, the ruled are convinced they can win. Sampson, supra note 8, at 180. A poll taken in 1985 showed that 63% of the whites and 59% of the blacks believed “apartheid would not exist in 10 years' time.” Id.

10. The Comprehensive Anti-Apartheid Act of 1986 was passed by Congress over President Reagan's veto. The President had been cautioned that exercise of the veto would cause great harm to America's role in Africa. According to Senator Lugar, “This is a gut issue of whose side you're on. We really need to be on the right side of history.” Roberts, , Reagan Plans to Reject Pretoria Sanctions Bill, N.Y. Times, 09 24, 1986, at Y8, col. 1Google Scholar; Excerpts From Veto Message on Sanctions, id., Sept. 27, 1986, at Y4, col. 1 (excerpts from President Reagan's Sept. 26, 1987 message announcing his veto). Regarding President Reagan's veto, see Editorial, Mr. Reagan's Veto, Not America's, id., Sept. 27, 1986, at Y18, col. 1. See also Cowell, Pretoria Derides Vote by Senate for Sanctions, id., Aug. 17, 1986, at Y8, col. 2. The South Africans criticized the Senate vote and the Act as “‘a form of protectionism dressed in morality …. The measures will not help reform,’ said Deputy Finance Minister, Kent Duer. ‘Reform has a cost.’“ Id. See also Senate Roll-Call on Sanctions, id., Aug. 17, 1986, at Y8, col. 1 (reprinting of Senate roll-call). The Senate roll-call vote of 84-14 demonstrated overwhelming bipartisan support for sanctions.

11. See the Act, supra note 7.

12. For a documented account of repression in the midst of Mr. Botha's reforms, see Repression in a Time of Reform: A Look at Events in the Transvaal Since August, 1984 (1984), (published by a large number of South African anti-apartheid organizations such as the United Democratic Front [hereinafter UDF]Google Scholar, the Black Sash and the Transvaal Indian Congress). Cf. South Africa Since 1964: Renewed Resistance Increased Repression, Southern Africa Project Annual Report, Lawyers Committee For Civil Rights Under Law (1984)Google Scholar.

13. See McDougal, supra note 1; Apartheid: The Facts, supra note 1; Ozgur, O.A., Apartheid, The United Nations and Peaceful Change in South Africa (1982)Google Scholar.

14. Mbeki, G., Profile of Political Conflicts in Southern Africa (1987)Google Scholar.

15. Carter, G., Continuity and Change in Southern Africa (1985) [hereinafter Carter]Google Scholar.

16. It is simply beyond the scope of this paper to essay the collapse of the Reagan policy in southern Africa. However, the fundamental point is broadly underlined throughout the paper. See, e.g., Constructive Engagement Fails Namibia Again in Washington Notes on Africa 4 (Summer 1985)Google Scholar.

17. Id.

18. Id.

19. See the Act, supra note 7.

20. The Act may be viewed as a key symbol that the West is withdrawing support from South Africa and beginning to “change sides.” Samspon supra note 8, at 257. Pressure to secure the passage of the Act came from many sources including church groups such as the Interfaith Center on Corporate Responsibility under the directorship of Tim Smith. See id. at 172 and authorities cited therein. If an individual or organization can be singled out for triggering the sustained public reaction to the South African problem, it is probably Randall Robinson and the black lobby group Trans Africa. Id. at 165. According to Senator Lowell Weicker, “It was not a Congressman, a Senator or a President who brought the matter of South Africa to the attention of the American people … it was a citizen—Randall Robinson.” Id. That honor may also be shared with Senator Edward Kennedy who traveled to South Africa, following in Bobby Kennedy's footsteps. According to Winnie Mandela: “It took a Kennedy to emphasize the conditions we have to live with to the rest of the world.” Id. at 167.

21. See the Act, supra note 7, at § 4.

22. Id. at § 101.

23. For a U.S. account of the practice of necklacing, see Zucchino, , The Necklace of Death, Tallahassee Democrat, 08 12, 1986, at B1, col. 1Google Scholar; Zucchino, The Necklace of Death, id., Aug. 17, 1986, at B1, col. 2.

24. A field trip to South Africa was undertaken in May 1986.

25. A significant example of “black on black” violence is the Inkatha-UDF, supra note 12, feud which reflects the complex political dynamics of black politics in South Africa. Tensions exist between the ethnically based, Zulu political organization, Inkatha, and the non-white, but non-racially based, UDF. Tension has also been generated due to Chief Mangosuthu Buthelezi's partial acquiescence in the bantustan program of the South African government, his standing as a homelands leader and the strong antipathy that exists between the exiled ANC leaders and Buthelezi. See Temko, , Different Tactics to End Apartheid Behind Tribal Violence in S. Africa, Christian Sci. Mon., 10 22, 1987Google Scholar, reprinted in AFPC, XXII, No. 42, at 4Google Scholar. On violence between the ANC, UDF, and PAC-affiliated groups, see Sampson, supra note 8, at 157-158. Sampson notes that the police seem more “tolerant” of violence directed at the ANC or the UDF. See also Towards a Black Civil War, The Economist, 11 7, 1987, 45 (U.K. ed. at 61)Google Scholar; but cf. Battersby, , Zulu Chief Defends His Role in New South African Panel, N.Y. Times, 11 4, 1987, at Y8, col. 3Google Scholar; Honey, , Zulu Chieftain Says He's Vital to New South Africa, Baltimore Sun, 11 9, 1987Google Scholar, reprinted in AFPC, XXII, No. 45, at 4Google Scholar. Buthelezi says that “(n)either the South African government nor the African National Congress can hope to bring about change here, whether through violence or non-violence, and try to leave Inkatha or myself out of it.” Id. Cf. Battersby, Edendale Journal: In Apartheid's Shadow, Zulu Wages War on Zulu, N.Y. Times, Nov. 9, 1987, at Y4, col. 3.

26. Personal observations of the author during a recent field trip to South Africa concerning Pretoria-sponsored violence in the townships.

27. See Matthews, , Freedom, State Secuirty and the Rule of Law: Dilemmas of the Apartheid Society (1986)Google Scholar; Amnesty International Report 1987 99–107 (1988)Google Scholar.

28. See Dash, , A Rare Talk with Nelson Mandela: The Man Nobody Knows, N.Y. Times (Sunday magazine), 06 7, 1985Google Scholar; Benson, M., Nelson Mandela: The Man and the Movement (1986)Google Scholar. See also Sullivan, , Mandela Allowed Visit by Opposition Leader, Wash. Times, 05 6, 1986Google Scholar, reprinted in AFPC, XXII, No. 17, at 1Google Scholar.

The South African government actively opposed meetings between white “verlighte” Afrikaners and leaders of the ANC in exile. See Parks, , S. Africa Will Bar Meetings of White and Apartheid Foes, Botha Says, L.A. Times, 08 14, 1987Google Scholar, reprinted in AFPC, XXII, No. 33, at 6Google Scholar.

29. Recently the South African authorities have granted “amnesty” to ANC leader Govan Mbeki. Mbeki maintains that a free Mandela [a recommendation of the Act] would aid the peace process in South Africa. See Editorial, Deeds and Words in South Africa, N.Y. Times, 11 9, 1987, at Y22, col. 1Google Scholar, on the release of Mbeki and a call for Mandela's release.

30. See the Act, supra note 7, at Title I.

31. See Goshko, , State Dept. Describes ANC's Communist Ties, Wash. Post, 01 10, 1987, at A18Google Scholar.

32. See the Act, supra note 7, at § 102.

33. Id. at § 102(b)(4).

34. On self-determination, see U.N. Charter art. 1, para. 2; International Covenant on Civil and Political Rights, art. 1, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1967); International Covenant on Economic, Social and Cultural Rights art. 1, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1967); Declaration on the Granting of Independence to Colonial Countries and Peoples, 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1961); Sumida, , The Right of Revolution: Implications for International Law and Order in Power And Law 7 (Barker, ed. 1971)Google Scholar.

35. For the position of the South African authorities, see Viewpoint, S. Afr. Dig. 1110, 12 5, 1986Google Scholar. The Botha regime's promotion of the South African crisis as a purely ideological struggle is explicitly set forth in an interview with journalist Bruce Louden. Botha is quoted as follows: “The struggle in South Africa is not one between Blacks and Whites. It is an ideological struggle between supporters of genuine freedom and stability, and those who wish to force a socialist dictatorship of a small clique on South Africa with the support of international terrorism.” Id.

36. McDougal, M. & Reisman, W., International Law in Contemporary Perspective 377 (1981)Google Scholar.

37. See the Act, supra note 7, at Sec. 4.

38. Id. at § 101.

39. Id. at § 102.

40. Id. at § 103.

41. Id. at § 104.

42. Id. at § 105.

43. Id. at § 106.

44. Id. at § 107.

45. Id. at § 110.

46. Id. at § 101(a).

47. See Dugard, C., Human Rights and the South African Legal Order (1978) [hereinafter Dugard]Google Scholar; Mathews, A., Law, Order and Liberty in South Africa (1971)Google Scholar.

48. See the Act, supra note 7, at § 101(b)(3).

49. Id. at § 102.

50. However, Anglo-American, South Africa's industrial giant, has urged that white South Africans consider multi-racial power-sharing under the theme of “negotiate or be doomed.” See Parks, , S. Africa Woos ANC For Role in Peace Process, L.A. Times, 09 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 38, at 3Google Scholar.

51. The term “suspension” may also imply that terrorist activities are appropriate if state violence does not abate as sought by the Act.

52. See the Act, supra note 7, at § 106(b).

53. Id.

54. Id. (emphasis added).

55. See Dugard, supra note 47, at 14.

56. See the Act, supra note 7, at § 102(b)(2).

57. Id. at § 102(b)(4).

58. See U.N. Charter at art. 1.

59. See the Act, supra note 7, at § 106(2)(b).

60. Id. at § 106(a)(1).

61. Id.

62. See Carter, supra note 15.

63. See the Act, supra note 7, at § 106(b).

64. See Editorial, Ending Real Constructive Engagement, N.Y. Times, 06 8, 1987, at Y18, col. 1Google Scholar. Cf. Davis, South Africa: Sullivan Calls For Pullout: Only Sanctions Can Dismantle Apartheid, id., June 7, 1987, at Y2, col. 3; Feder, , A Wary Reception For Sullivan Stand, N.Y. Times, 06 8, 1987, at Y5, col. 5Google Scholar. See also Claiborne, , Sullivan Urged Not To Quit Aparth eid Fight, Wash. Post, 06 10, 1987, at A20Google Scholar; Editorial, Sullivan Pulls Out, Baltimore Sun, 06 11, 1987Google Scholar, reprinted in AFPC, XXII, No. 23, at 5Google Scholar; Smith, , Commandments Without Moses, Time, 06 15, 1987Google ScholarPubMed, reprinted in AFPC, XXII, No. 24, at 4Google Scholar; Raspberry, , Sullivan, Principles and Peer Pressure, Wash. Post, 06 10, 1987, at A17Google Scholar.

65. See the Act, supra note 7, at § 203(b)(2).

66. Id. at § 203(c).

67. Id.

68. Id. See infra notes 95 and 139.

69. See the Act, supra note 7, at § 208(c) (emphasis added).

70. Id. at § 208(e).

71. Id. at § 209.

72. Id.

73. Id. at Title III.

74. See background set forth in supra note 7. President Reagan's strategy was to preclude stronger congressional sanctions by the executive issuance of extremely limited sanctions measures.

75. Id.

76. See the Act, supra note 7, at § 301.

77. Id. at § 302.

78. Id. at § 303.

79. Id. at § 304.

80. Id. at § 305.

81. Id. at § 306.

82. Id. at § 307.

83. Id. at § 308.

84. Id. at § 309.

85. Id. at § 313.

86. Id. at § 318.

87. Id. at § 320.

88. Id. at § 321.

89. Id. at § 322.

90. It is not clear why the South African government released ANC leader Govan A. Mbeki in 1987. Mbeki was convicted during the Rivonia trials and had been kept at the infamous Robben Island prison. While release of Mbeki is consistent with the Act's demand that political prisoners be freed, Nelson Mandela and many others, of course, still remain in prison. See Battersby, , Pretoria Frees a Black Leader Jailed 23 Years, N.Y. Times, 11 6, 1987Google Scholar, reprinted in AFPC, XXII, No. 44, at 1Google Scholar.

91. For a recent affirmation that nonproliferation remains a basic goal of U.S. foreign policy, see Kennedy, Richard T., Nonproliferation As a Fundamental Policy Goal in Current Policy, No. 1020, Bureau of Public Affairs, U.S. Department of State, (1988)Google Scholar. Kennedy notes that “South Africa has recently announced its willingness to discuss” joining the nonproliferation treaty. Ned Temko maintains that South Africa's uranium enrichment technology “ensures” that South Africa has a nuclear weapons capability. Temko, , S. Africa Hopes Nuclear Energy Program Will Short-Circuit Sanctions, Christian Sci. Mon., 10 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 42, at 2Google Scholar. South Africa's willingness to sign the nuclear non-proliferation treaty is viewed by a leading commentator as a sign of “maturity.” Rothberg, , The Bomb and South Africa, Christian Sci. Mon., 10 8, 1987Google Scholar, reprinted in AFPC, XXII, No. 40, at 6Google Scholar. Rothberg sees this as an indicator that South Africa does not have the bomb.

However, there is considerable circumstantial evidence that South Africa is indeed a nuclear power. See Anderson, , South Africa's Secret Uranium Process, Wash. Post, 09 15, 1980Google Scholar, reprinted in AFPC, XV, No. 37, at 6Google Scholar; Anderson, The Mystery Flask Bomb or Phenomenon, id., Sept. 15, 1980, reprinted in AFPC, XV, No. 37, at 6. See also Murphy, Embargo S. African A-Plans, id., Sept. 12, 1980, at A24, col. 3. South Africa's “hint” that it is willing to sign the non-proliferation pact is viewed as an important signal that it has a nuclear weapons capability. See Temko, , S. Africa Signal on Nuclear Pact Suggests It Has Bomb, Christian Sci. Mon., 09 29, 1987, at 9, col. 1Google Scholar.

92. Id.

93. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signatures, July 1, 1968, 21 U.S.T. 483, T.I.A.S. No. 6839, 729 U.N.T.S. 161.

94. This section may have had an effect on the “voluntary” departure of U.S. corporations from South Africa in the aftermath of the Act. See Cowell, , The Ambiguity of South African Divestment, N.Y. Times, 12 31, 1986, at Y1, col. 1Google Scholar. We may also note in this context that one of the effects of sanctions is loss of business confidence. See Loss of Business Confidence is a Sanction on South Africa, Economist, 06 21, 1986, 67 (U.K. ed. at 69)Google Scholar.

95. See the Act, supra note 7, at Title IV. See also, Japan Warns South Africa It May Adopt New Sanctions, N.Y. Times, 09 5, 1986, at Y4, col. 3Google Scholar. Japan (whose nationals are treated as “honorary whites” in South Africa) is now also about to join the sanctions bandwagon. Id. It should be noted, however, that Japanese trade with South Africa exceeds that of the U.S. since the passage of the Act. Israel has also enacted limited sanctions in an effort to reduce ties with South Africa. These actions are designed to “avoid endangering relations with the U.S. Congress.” See Reuters, , Israeli Discount Pretoria, Wash. Times, 09 18, 1987Google Scholar, reprinted in AFPC, XXII, No. 37, at 4Google Scholar.

96. See the Act, supra note 7, at § 401(a).

97. Id. at § 401(b).

98. Id. at § 401(e).

99. Id. at § 402.

100. Id. at § 403.

101. Id.

102. Id.

103. Id.

104. Id.

105. Id.

106. In February 1987, the U.S. and Great Britain vetoed a Security Council Resolution on economic sanctions against Pretoria. West Germany cast the only other negative vote while Japan and France abstained. The Reagan Administration thus maintained the historic position of the U.S.—protecting South Africa from a mandatory and binding international sanctions program. This veto was a direct repudiation of the policies of the Comprehensive Anti-Apartheid Act of 1986. Shannon, , U.S. and Britain Veto Proposal For U.N. Economic Sanctions On S. Africa, L.A. Times, 02 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 8, at 3Google Scholar [hereinafter Shannon]. The Reagan Administration's justification for the veto was premised on the policy of constructive engagement and its underlying contention that sanctions are impossible to enforce. This position implies that the Administration does not believe in the full enforcement of the congressional sanctions program which it is obliged to implement.

For an update on the Reagan Administration's U.N. policy, see U.S. and Britain Veto a U.N. Move to Impose Penalties on Pretoria, N.Y. Times, 03 9, 1988, at Y2, col. 3Google Scholar. A U.N. Security Council resolution “would have imposed an oil embargo and other sanctions against South Africa for its imposition of restrictions on 17 anti-apartheid groups,” but the U.S. and Britain vetoed the resolution. Id.

107. See the Act, supra note 7, at Title IV.

108. Id.

109. Id. at Title V.

110. Id. at § 501.

111. Id. at Title V.

112. Id. at § 503.

113. Id. at § 504.

114. Id. at § 506.

115. Id. at § 508.

116. Id. at § 509.

117. Id.

118. Id. at § 603.

119. Id.

120. Id.

121. President's Report On The Effects Of Sanctions (1987) [hereinafter the Report]. The General Accounting Office (GAO), the congressional investigative arm, has been highly critical of the Administration's “faithful” and “full” implementation of the Act. Strategic minerals have been imported into the U.S. through third-party intermediaries (Japanese, West Germans and others). The President has also not sought to buttress the Act by proposing that the Security Council impose similar sanctions; no effort has been made to convene a conference of industrial nations to coordinate strategy for the elimination of apartheid; and, reports required under the Act from the executive department and its agencies have been tardy. The GAO report illustrates how uranium ore and oxide, processed in Europe into the gaseous uranium nexaflouride, have reached the U.S. The GAO report indicates that 28% of all uranium enriched for re-export as fuel rods for foreign utility corporations are South African in origin. Litigation on this matter has been initiated by the Lawyers Committee For Civil Rights Under Law. See Robertson, , GAO Faults Administration On South Africa Sanctions, Wash. Post, 10 24, 1987, at A5, col. 5Google Scholar. President Reagan's Report maintained that the Act had no effect on the South African government and that South Africa is “not any closer in late 1987 to respecting free speech and free political participation by all its citizens than it was a year ago.” See Ottaway, , Reagan Opposes New Sanctions Against S. Africa, Wash. Post, 10 3, 1987, at A19, col. 3Google Scholar.

122. The Report, supra note 121, at 2.

123. Id. On the effects of South African destabilization of Mozambique, see Honey, , In Mozambique, War And Terrorism Make Refugees of 1.5 Million, Baltimore Sun, 03 31, 1987Google Scholar, reprinted in AFPC, XXII, No. 13, at 11Google Scholar. Cf. Jolafre, , Angolan People Feel Fearsome Effects of Protracted War, Christian Sci. Mon., 03 30, 1987Google Scholar, reprinted in AFPC, XXII, No. 13, at 7Google Scholar.

124. The Report, supra note 121, at 5. Attacks on U.S. business interests have become fashionable. For example, the South African Institute For American Affairs maintains that U.S. firms adhering to the Sullivan Principles are violating the apartheid system and are following a pattern of direct confrontation with the South African government. See Claiborne, , U.S. Firms Accused of Violating Apartheid, Wash. Post, 05 13, 1987, at A30Google Scholar. Indeed, it is estimated that some eighty U.S. firms may be under threat of prosecution for violations of the Group Areas Act. See Honey, , South Africa Tightens Enforcement of Segregation Law, Baltimore Sun, 05 13, 1987Google Scholar, reprinted in AFPC, XXII, 05 15, 1987, No. 19 [hereinafter Honey]Google Scholar. On the emergence of anti-Americanism among South Africa's whites, see Lawrence, , Anti-Americanism Among South African Whites Grows, reprinted in AFPC, XXI, 11 28, 1986, No. 46, at 8Google Scholar.

125. The Indaba was concerned with the problems of multi-racial political participation and the relevance of a bill of rights. But see Burns, , A Plan To Share Power Falters in South Africa, N.Y. Times, 02 9, 1988 at Y4Google Scholar. The establishment of a multi-racial, 10-member joint executive authority to administer KwaZulu and Natal province was also given guarded approval by President Botha. See Honey, , Multi Racial Council Formed in KwaZulu — Natal gets Botha's Guarded Blessing, Baltimore Sun, 11 4, 1987Google Scholar, reprinted in AFPC, XXII, No. 20, at 3–4Google Scholar.

The Indaba plan is potentially one of the most far-reaching experiments in South Africa. The proposed plan would merge the bantustan of KwaZulu and the “white” province of Natal. A two-chamber legislature is envisioned with blacks voting on a one-person, one-vote basis for one chamber, and whites, coloureds and Indians voting for the other chamber. A decision of each Chamber would be subject to veto by the other Chamber. A strong bill of rights is proposed which some South Africans believe may be a model for a future constitution. See Claiborne, , S. African Province Dares to Hope for One-Man, One-Vote, Wash. Post, 05 18, 1987, at A21Google Scholar.

126. The Report, supra note 121, at 3. After the 1987 election, the South African government once again vigorously enforced laws that are the cornerstone of the apartheid system, such as the Group Areas Act. See Honey, supra note 124, at 1. Parliamentary by-elections held in the rural Transvaal province districts of Standerton and Schweiger-Reneke during March 1988 were won by the staunchly pro-apartheid Conservative Party.

127. The Report, supra note 121, at 3.

128. Id. at 4.

129. It has become apparent that since South Africa's main export is gold, the South African economy has, in the short term, been shielded from an immediate economic crisis. See Claiborne, , Gold Shields S. Africa From Crisis, Wash. Post, 11 1, 1987Google Scholar, reprinted in AFPC, XXII, No. 44, at 4Google Scholar.

130. The Report, supra note 121, at 5. It should be noted that gross income in South Arica has dropped 8.2% in the past five years. Without foreign capital the economy cannot grow more than 3% per year. This growth cannot match the demographic reality of 250,000 new job-seekers entering the market every year. See Stern, , Japan Is Right On South Africa, Wall St. J., 02 19, 1988, at 20, col. 2Google Scholar.

131. The Report, supra note 121, at 5.

132. Id.

133. Id. at 7.

134. Williams, , Justice Ignores Catch 22 on U.S. Firms in S. Africa, Wash. Times, 02 25, 1987Google Scholar, reprinted in AFPC, XXII, No. 8, at 3Google Scholar.

135. See Lewis, , Pretoria Sanctions Didn't Work, Reagan Report to Congress Says, N.Y. Times, 10 1, 1987, at Y8, col. 2Google Scholar.

136. Economic sanctions will be rendered less effective and less attractive as a coercive stratagem of change if sanctions imposed by one state are regarded as an economic opportunity by another state. See Potts, , Apartheid Opponents Focus on Foreign Firms, Wash. Post, 06 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 25, at 2Google Scholar. See also the Report, supra note 121, at 24.

137. The GAO gives details about South African exports of strategic materials that have somehow evaded the restrictions of the Comprehensive Anti-Apartheid Act of 1986. Robertson, , GAO Faults Administration On South African Sanctions, Wash. Post, 10 24, 1987Google Scholar, reprinted in AFPC, XXII No. 14, at 6Google Scholar. It should also be noted that the Reagan Administration appears to be confused and tentative about the formulation and execution of policy regarding South Africa in the aftermath of the Act. The Administration still encourages firms to remain in South Africa. However, it ignores their pleas for assistance in challenging “state and local anti-apartheid laws that are forcing them from that troubled nation.” See Williams, supra note 134. Ambassador Perkins, in an apparent break with Reagan policy, has indicated that he will not discourage U.S. firms from leaving South Africa. See Envoy Backs U.S. Sanctions For S. Africa, Wash. Post, 06 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 25, at 4Google Scholar.

138. Robertson, , GAO Faults Administration on South Africa Sanctions, Wash. Post, 10 24, 1987Google Scholar, reprinted in AFPC, XXII, No. 44, at 6Google Scholar.

139. De Young, Allies Far Apart On Added Sanctions, id., Sept. 4, 1986, reprinted in AFPC, XXI, No. 34, at 5. The problem of securing the economic cooperation of trading partners has become a crucial diplomatic issue. Israel presents unique problems due to its complex ties with South Africa and its receipt of more U.S. aid than any other country. Israel must reexamine its South African ties if it is not to provoke a confrontation with the U.S. On the new Israeli package of sanctions, see Reuter, , Israeli's Discount Pretoria, Wash. Times, 09 18, 1987Google Scholar, reprinted in AFPC, XXII, No. 37, at 4Google Scholar. In 1986, South Africa exported $220 million in goods to Israel and supplied it with 70% of its coal. According to one observer: “When it comes to Israel and South Africa, breaking up is hard to do.” See Frankel, , An Israeli Dilemma: South African Ties. Wash. Post, 09 20, 1987, at A31Google Scholar.

Japan presents another problem. In the aftermath of the Act, Japan became South Africa's leading trading partner in 1987. Japan does have a limited, largely cosmetic sanctions policy against South Africa. Indeed, the release of Japan's trade figures has generated unwelcome attention from abroad and Japanese businessmen have suggested that, for example, Japanese automakers “curb” their imports to South Africa. See Stern, , Japan Is Right On South Africa, Wall St. J., 02 19, 1988, at 20, col. 3Google Scholar. Japan does not permit direct investment in South Africa and restricts commercial loans to firms in South Africa. Recently, Japan banned computer sales to the South African security police and has prohibited iron and steel imports from South Africa. Nevertheless, from an international perspective, Japan's continuing economic presence in South Africa undermines the broad purposes of the Act.

140. See Shannon, supra note 106.

141. Id.

142. Id.

143. Id.

144. Id.

145. See also supra note 139 and Auerbach, , Japan Outstrips United States As S. African Trade Partner, Wash. Post, 10 22, 1987Google Scholar, reprinted in AFPC, XXII, No. 42, at 4Google Scholar.

146. Id.

147. Id.

148. Id.

149. See Nagan, supra note 6.

150. For a current analysis of Soviet-U.S. relations in light of the Gorbachev era, see Armacost, , U.S.-Soviet Relations: Coping With Conflicts In The Third World, Current Policy No. 879, Bureau of Public Affairs, U.S. Dept. of State (1988)Google Scholar.

151. See Lake, A., The Tar Baby Option: American Policy Toward Southern Rhodesia (1976)Google Scholar; see also National Security Study Memorandum 39: The Kissinger Study of Southern Africa (El-Khawas, and Cohen, eds. 1976)Google Scholar.

152. Kipling, R., Kim 186 (1918)Google Scholar.

153. One of the major events immediately preceding passage of the Act was the visit to South Africa by the Eminent Persons Group (the Group), a seven-member delegation representing the Commonwealth. The Group made several special proposals for a negotiated solution to South Africa's problems. It met with Nelson Mandela in prison and emerged with the conclusion that he must be a lead figure in any negotiations. The South African authorities undermined the Group's efforts by conducting military interventions into frontline states while the Group was still in South Africa.

Malcolm Fraser, former conservative Prime Minister of Australia, emerged from South Africa with an extremely pessimistic forecast stating that millions might be killed if a peaceful solution was not found. Fraser was convinced that war is a very possible future scenario in southern Africa. The final report of the Group stresses, indeed urges, that broad sanctions be applied against South Africa. It is very likely that U.S. congressional leaders were influenced by Malcolm Fraser's appraisal of the South African situation as well as the final report of the Group. See De Young, , Commonwealth Group Ends S. African Effort, Wash. Post, 06 8, 1986, at A24Google Scholar. See also Conlon, , Analytical Compendium of Actions Taken By Governments With Respect to Sanctions on South Africa, U.N. Centre Against Apartheid Notes and Documents 86–23210 (1986)Google Scholar. For a restatement of the Administration's South Africa policy in light of the Act, see Schultz, , The Democratic Future of South Africa, Current Policy No. 1003, Bureau of Public Affairs, U.S. Dept. of State (1987)Google Scholar; Crocker, , A Democratic Future: The Challenge For South Africans, Current Policy 1009, Bureau of Public Affairs, U.S. Dept. of State (1987)Google Scholar; Freeman, , South Africa: What Are America's Options, Current Policy 1033, Bureau of Public Affairs, U.S. Dept. of State (1987)Google Scholar.

154. The immediate effects of sanctions have been primarily symbolic or psychological. See Cutting Ties to a Troubled Land, Time, 06 29, 1987Google Scholar, reprinted in AFPC, XXII, No. 25, at 3Google Scholar.

155. It is instructive to compare East-West concerns with those of the U.N. For an outline of the U.N. position on South Africa, see Apartheid: The Facts, supra note 1; cf. Schmidt, United Nations Sanctions and South Africa: Lessons From the Case of Southern Rhodesia (1987), U.N. Centre Against Apartheid Notes & Documents 87–03834 (1987)Google Scholar.

156. See supra note 153.

157. See supra note 155.

158. See supra note 153. Opinions in the U.S. indicating that sanctions are an appropriate response to South African intransigence include the following: Abrahams, and Orentlicher, , Sanctions as a Means To an End, N.Y. Times, 10 6, 1986, at Y19, col. 2Google Scholar; Kennedy, , The Sanctions Are Working, Wash. Post, 10 16, 1987, at A23Google Scholar; cf. Greenberger, , U.S. Trade Sanctions on South Africa Starting to Pay Long-Term Dividends, Wall St. J., 09 21, 1987 at 24Google Scholar.

An articulate opposing view is that of Simon Jenkins who is convinced that sanctions against South Africa are a failure. Jenkins, , Why Sanctions Are a Failure, U.S. News & World Rep., 09 21, 1987Google Scholar, reprinted in AFPC, XXII, No. 38, at 2Google Scholar. According to Jenkins, sanctions are unsuccessful forms of “aggression” (i.e., coercion) for four reasons: 1) greed prevails in the market; 2) sanctions are “notoriously” ineffective in securing “local” political change; 3) sanctions hurt the wrong people; and 4) sanctions generate unrealistic expectations and lead to disillusionment. See also Jenkins, Good Morals, Good Business, reviewing Sampson, supra note 8, in Times Literary Supplement, 04 3, 1987, at 343Google Scholar.

159. See McDougal, supra note 1.

160. Lasswell, H., Power and Personality (1984)Google Scholar; see also Laswell, H., World Politics and Personal Insecurity (1935)Google Scholar; Lasswell, H. & Kaplan, A., Power and Society (1965)Google Scholar.

161. Id.

162. The UDF drafted a document on the future of South Africa under black rule which basically promotes the principle of mass political participation as well as political accountability. The document does not resemble traditional Marxist models used in the socialist world. See Sparks, , Blueprint Drawn for Black-Ruled S. Africa, Wash. Post, 05 10, 1987, at A22Google Scholar. The ANC position is reported in Claiborne, ANC Chief Says Pretoria Must Yield, id., Dec. 2, 1987, at A34. Cf. Temko, , S. Africa's Black Nationalists Resist Pressures to Join Political Talks, Christian Sci. Mon., 09 26, 1987, at 12Google Scholar; see also Sparks, , Election in South Africa: No Hope For Peaceful Change, Wash. Post, 05 10, 1987, at R5Google Scholar; Battersby, , Botha Landslide Worries Foes, N.Y. Times, 05 10, 1987, at Y2, col. 1Google Scholar; Editorial, South Africa Treks Backward, N.Y. Times, 05 8, 1987, at Y30, col. 1Google Scholar.

163. The Act, as noted, sets out a “laundry list” of sanctions. For an excellent outline of the problems inherent in a “laundry-list” approach to export restrictions to South Africa, see Mehlman, Milch & Taumanoff, , United States Restrictions on Exports to South Africa, 73 Am. J. Int'l L. 581 (1979)CrossRefGoogle Scholar. The article concludes that many restrictions on supplying the South African security forces were exempted by classifying articles as “non-combat military equipment” or “dual-use civilian” equipment such as computer technology, civilian aircraft and “communications equipment.” Id. at 591. Indeed, the article points out that “end use” restrictions and “destination control statements” are largely meaningless. Id. at 593, 596.

The Reagan Administration would like to resolve the issue of uranium policy since one of the major points of controversy in the Act is the problem of uranium imports. Some congressional leaders believe that uranium imports for processing and immediate re-export were meant to be exempted from the Act. See Walsh, , ‘Case of the Missing Colloquy’ May Affect S. Africa Sanctions, Wash. Post, 02 17, 1987, at A15Google Scholar.

164. It would appear that both public opinion and the Democratic Party leaders are fully committed to sanctions. See, e.g., Davis, , South Africa: Sullivan Calls for A Pullout; Only Sanctions Can Dismantle Apartheid, N.Y. Times, 06 7, 1987, at Y2, col. 3Google Scholar; Robertson, , More S. African Sanctions Demanded, Wash. Post, 10 9, 1987, at A31Google Scholar.

165. On the CIA role in the capture of Nelson Mandela, see Cockburn, , A Loophole in U.S. Sanctions Against Pretoria, N.Y. Times, 10 13, 1983, at Y18, col. 1Google Scholar.

166. See Resolutions, supra note 1.

167. While it is difficult to estimate the cost of sanctions to South Africa, it has been generally stated that the party subject to sanctions pays more for the goods it wants, and has to sell its goods more cheaply. According to Roger Thurow, “It may be difficult to imagine, but in South Africa, where being white used to guarantee economic comfort, the breadline is becoming integrated. ‘For the first time in years some whites are ending up losers,’ says Nico Czypionka, the Chief economist at Standard Bank.” Thurow, , Poor Whites Join South Africa Breadlines: Apartheid No Longer Guarantees Their Security, Wall St. J., 01 15, 1988, at 9Google Scholar.