FOOTNOTES

This includes Walvis Bay, which has an area of roughly 420 square miles. See below, History, Colonial period.

2The. Nama (Hottentots) are treated as "Coloreds" for some purposes. See South-West Africa Constitution Act, No. 39 of 1968, sec. 22 (a), (v).

3"Bastards" (in Afrikaans). They are the mixed blood descendants of Afrikaners and Hottentots who originally settled in the northern Cape, then trekked across the Orange River into South West Africa when their claims to the land that they had settled in the Cape were not recognized by provincial officials.

4.Community" (in Afrikaans).

5 See Union Proc. No. 12 of 1922.

❝See Union Proc. 196 of 1929.

Technically the Eastern Caprivi Zipfel consists of that part of the Zipfel that lies east of 21° east longitude (see Union Proc. No. 147 of 1939), but the river flows almost along the dividing line and is the most easily discernible geographical feature of the area.

8 See South-West Africa Constitution Act, No. 39 of 1968, sec. 38 (5).

"The Gebiet, founded in 1870, was self-governing before the German occupation and continued substantially so under treaty with the Imperial Government. It was granted a special, apparently semi-self-governing status by the Administrator of South West Africa in 1923 (Administrative Proc. No. 28 of 1923); but within a year the substance of the agreement was effectively destroyed (in retaliation for the Community's attempt to win greater independence) by abolishing the offices of elected Kapitein and raad (council) and substituting a government-appointed magistrate to run the community.

101948.

11Under the League of Nations it was customary for a mandatory power to forward to the League with its own comments petitions from the inhabitants of its mandated territories, and the Permanent Mandates Commission would send to the mandatory for its comments any petitions which it had received directly. After the United Nations was established South Africa refused to forward petitions from South West Africans, who often had to use roundabout ways to get their criticisms and complaints to the outside world; and it refused to comment on petitions forwarded to it by the U.N.

12

Act. No. 44 of 1949, sec. 2 (2), as amended; Act. No. 64 of 1961, sec. 2, as amended; Act. No. 69 of 1962. sec. 29.

13International Status of South-West Africa, [1950] International Court of Justice Rep. 128 (Advisory Opinion). The Assembly later sought two other advisory opinions to elaborate on points not covered in the 1950 opinion: South-West Africa -Voting Procedure. [1955] International Court of Justice Rep. 67 (Advisory Opinion).

which held that the U.N. might follow its Charter-prescribed procedure in voting on South West African questions (i.e.. that it might decide by a two-thirds majority. rather than being obliged to follow the League unanimity rule); and Admissibility of Hearings of Petitioners by the Committee on South West Africa, [1956] International Court of Justice Rep. 23 (Advisory Opinion), which held that it might grant oral hearings to petitioners from the Territory (although such a procedure had never been allowed under the League).

14The second paragraph of Article 7, which read:

The Mandatory agrees that, it any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice.

15 South West Africa Cases (Ethiopia v. South Africa: Liberia v. South Africa), Preliminary Objections, [1962] International Court of Justice Rep. 319; South West Africa, Second Phase, Judgement, [1966] International Court of Justice Rep. 6. The "no-decision decision" was particularly shocking to most international lawyers because, at the outset of the proceeding, the South African government had raised preliminary objections denying the jurisdiction of the Court, including the objection that the dispute was not of a nature which the Court should hear, and those objections had been overruled in 1962; yet the Court's final decision, four years later, was that it could not rule on the merits because the Applicants lacked a legal interest in the subject-matter of their claim i.e., that the nature of the claim was inappropriate-a defense which everyone thought had been disposed of (by a diametrically opposed decision) in 1962.

16(1964). It was named for the chairman of the Commission who drafted a report on the future of South West Africa. In 1968 the government issued a White Paper accepting the basic premises and provisions of the Report.

17

See the description given by Ambassador Mwaanga (Zambia) in the 1527th meeting of the Security Council, 28 Jan. 1970, p.m. S/PV.1527, 28 Jan. 1970, p. 32.

18 Act No. 39 of 1968, secs. 22, 38.

19

Apparently under the Criminal Procedure Act, No. 55 of 1956, sec. 215 bis (the so-called "180-day law").

(A.D.).

20. v. Tuhadeleni and others, 1967 (4) S. A. 511 (T), aff'd, 1968 ( ) S. A.

21 The Terrorism Act, No. 83 of 1967, which is applicable to South West Africa, makes its provisions defining the crime of "terrorism" retroactive to June 1962.

22See below: American policy towards South West Africa.

23 See statement of South African delegate in U.N. General Assembly, 5 Oct. 1966. U.N. Gen. Ass. Prov. Verb. Rec. 118 (A/PV 1413) (Oct. 5, 1966 [XXI]).

24Security Council resolution 269 (1969), par. 6.

25 Establishment of Council-issued passports for refugees (see below, chapter V). and education and scholarship funds for refugees.

26.g., creating the Council for Namibia.

27e.g., calling on the Secretary-General to render assistance to the Council.

28 Creation of ad hoc committees no longer in existence.

29

"Whether without trial, after acquittal, or after conviction under an act illegally applied to South West Africa.

30 The same obligation applies to Security Council recommendatory resolutions. 31 The obligation arises by implication from Articles 2 (2) and 56 of the U.N.

Charter.

32 The exception, of course, is when "communism" appears to be a threat, as at

one time in Guinea.

33 North Africa has traditionally been considered under the jurisdiction of the Middle East desk of the State Department. The Arab-Israeli conflict, which of course has vast repercussions throughout North Africa, and is a problem of vital concern to American foreign policy officials, is not thought of as an African problem.

34 Southern" in this context refers to that part of the continent which is under white domination and the Black independent enclaves in that area: viz., South Africa, South West Africa, Rhodesia, Angola, Mozambique, Lesotho, Botswana, Swaziland, and Malawi.

35 Although American investors always try to influence national policy to their advantage, it is doubtful whether their interests in southern Africa are as yet great enough for them to exert the kind of overwhelming political pressure attributed to them. It is probable that ignorance, inertia, (un)conscious racism, a vast cultural and political time-gap, the traditional Europe-orientation of the State Department, the equation of black nationalism with communism, and the pervasive desire to support "stable" governments and keep them “stable,” all combined with an inordinate fear of change, are more important elements in determining American policy towards southern Africa.

36 A survey of the attitude of American businessmen resident in South Africa has shown that 80% of them replying to the questionnaire would vote for the Nationalists if they had the franchise.

38 Statement of Ambassador Goldberg to the U.N. General Assembly in Plenary Session, 12 Oct. 1966. U.S. Mission to the U.N., Press Release No. 4929, 12 Oct. 1966.

39

Statement of Ambassador Goldberg to Fifth Special Session of U.N. General Assembly in explanation of vote. Press Release USUN-63, 19 May 1967.

40 Statement of Ambassador Goldberg to Fifth Special Session of U.N. General Assembly on the Question of South West Africa. Press Release USUN-49, 26 April 1967.

41 Statement of Ambassador Goldberg, 19 May 1967. Supra, n. 39.

42 Statement of Ambassador Goldberg, 26 April 1967. Supra, n. 40.

43Statement of Ambassador Goldberg to U.N. General Assembly Plenary Session on South West Africa Question. Press Release No. USUN-69, 20 May 1968.

44Statement of Ambassador Yost in the U.N. Security Council on the question of Namibia. Press Release USUN-78, 11 Aug. 1969.

45 Observers were also sent by a number of other countries, in particular Sweden and the United Kingdom. It is not known if the United States continues to send such observers to these trials as they proliferate.

46 Press Release USUN-68(70), May 19, 1970.

47 Ibid.

48 The Ad Hoc Committee consists of all the members of the Security Council sitting as a committee of the whole, and speaking, necessarily, as representatives of their governments. The Zambian representative, who first proposed establishment of an ad hoc committee, had intended a small committee of independent experts, who would be urged to exert their full creative powers, without regard to any national policy, in exploring new ways to bring about compliance with resolution 2145. The most interested countries all opposed, overtly or covertly, the creation of any such uncontrolled committee, whose recommendations could not be anticipated.

49 The Rev. Michael Scott presented a number of proposals in draft form. Prof. Gidon Gottlieb of the New York University Law School presented a carefully worked out proposal for a judicial commission to investigate official mistreatment of South West Africans and to issue a sort of international indictment thereof.

50 See particularly under "General Considerations-Theory" below.

52 There is some question whether the Council has gone about this project effectively. Passports and similar documents addressed to sovereign states gain acceptance largely by being accepted-a classic bootstraps operation. The Council might have been better advised to issue a document which claimed somewhat less for its holder but which could be easily and generally accepted. Then bit by bit the Council could work for expansion of the rights and privileges to which such documents would entitle the holders.

54U.N. Security Council Prov. Verb. Rec., 1527th meeting, S/PV. 1527 (28 Jan. 1970) 27.

55It is difficult to explain the continuing American refusal to join the Council. Possible explanations include: (a) insincerity, as many Afro-Asians and other concerned persons believe; (b) pride, which prevents it from seeking membership after once spurning it; (c) fear that the Council will continue to be ineffective and that American

prestige should not be put on the line for it; (d) fear that the Soviet Union would join if the U.S. did (a not unreasonable assumption) and that the Council would turn into just one more forum for attacks on "imperialist powers"; (e) fear of having to support an increased budget for the Council if it became active (and therefore an increased overall U.N. budget) at a time when the United States is trying to hold down U.N. contributions (and all other non-military expenditures); or (f) fear of unforeseeable consequences of accepting membership.

56If the United States wanted to accept membership, there would be no difficulty in finding a seat, either by enlarging the Council membership or by substitution of members (possibly in the form of rotation of members, since the same states have been represented since the Council was established).

57 Press Release USUN-68 (70), 19 May 1970.

58 Most recently the incorporation of the three Baltic states of Latvia, Lithuania, and Esthonia by the Soviet Union. In the nineteen-thirties the League of Nations signaled its disapproval of the Italian conquest of Ethiopia by continuing to recognize the latter country as a League member; as a result, Ethiopia qualified as "another Member of the League of Nations" in order to join with Liberia in bringing the South West Africa Cases in the World Court. For a discussion of some of the possible, but not necessary, effects of non-recognition of a state, see Gould, An Introduction to International Law (New York, 1957), pp. 228-29.

59 See, e.g., Application of I.R.O. for the Resettlement or Repatriation of

Theresa Strasinkaite (U.S. Court of Allied High Commissioner for Germany, Area Five (1952) (minor Lithuanian child in Germany not to be forcibly repatriated as Soviet citizen since United States does not recognize laws and decrees of Lithuanian S.S.R.; child retains Baltic nationality).

60 For a discussion, see Gould, op. cit. supra n. 58, at 429-34.

61 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, [1962] International Court of Justice Rep. 319, at 327.

that:

62 Act No. 83 of 1967.

63 South Africa and the Rule of Law 53-54 (1968). The anonymous author states

The fact is that terrorists have committed crimes which existed before the Terrorism Act was promulgated with an intention which was never before present; they themselves thereby created the new crime, the Terrorism Act merely defining it.

64 The penalty is the same as for treason, including death by hanging; the minimum sentence is five years' imprisonment, without the usual alternatives of suspended sentence, caution, or reprimand.

65 Section 2 (2) not merely places the burden of proving his innocence on the defendant, but actually creates very far-reaching presumptions against his innocence.

67 New York Times, 17 Feb. 1970, p. 4, col. 3; 29 May 1970, p. 2, col. 2.