SELF-DETERMINATION AND THE “INDEPENDENT BANTUSTANS” 156
A. LEGAL STRATEGIES IN THE STRUGGLE AGAINST APARTHEID 162
by
Gay J. McDougall
It is particularly pertinent to discuss the use of law and lawyers in
the struggle against apartheid inasmuch as one of the chief mechanisms used by the apartheid regime to maintain its system of controls over the black
majority in South Africa has been a complex web of laws and a judicial system that has served the dictates of exploitation rather than the rule of law.
There are three levels on which law-related strategies to combat
apartheid have been developed, each level necessarily being interrelated to the next, each level necessarily demanding co-ordination with the next. First, there is the level of intergovernmental organisations and bodies. It is at that level that significant achievements have occurred in the development of the normative and treaty obligations of South Africa and the other member States of the world community in relation to apartheid. Included in these would be the norms of non- discrimination based on race and self-determination, the obligations arising out of the numerous Security Council and General Assembly resolutions on apartheid, and the international human rights instruments, the Universal Declaration of Human Rights, and the interlocking International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discriminations the International Convention on the Suppression and Punishment of the Crime of Apartheid;
Protocol I to the Geneva Conventions of l949; and the Charter of the United Nations.
It is incumbent upon States to comply with those obligations in the conduct of their national policies. This, then, represents the second level on which law-
162 Statement at the special meeting of the United Nations Special Committee against Apartheid, on legal aspects of the international campaign against apartheid, held on 27 March 1981.
related strategies to combat apartheid must exist, for in doing so, States must not only refrain from proscribed activities, but are obligated to promote and
encourage respect for the principles of the Charter by all other States, including South Africa.
The third level of law-related strategists are the non-governmental groups, including the public interest lawyers. It is on this level that I think you will find the greatest potential for a variety in approaches. With your permission, Mr.
Chairman, in discussing two possible approaches that can be taken by public interest lawyers, I will use as an illustration the work of the Southern Africa Project of the Lawyers’ Committee for Civil Rights Under Law.
Legal Defence in South Africa
Fourteen years ago, it became apparent to the Southern Africa Project of the Lawyers’ Committee that lawyers in this country could play a role in the defence of political opponents of apartheid. By illuminating the arbitrary and repressive nature of the judicial process in South Africa, moreover, we have provided immediate and effective help to persons deprived of basic rights. We have intervened in cases in South Africa representing such adverse deprivations of basic rights as public floggings, police invasion of lawyer-client relationships, testimony compelled by a star chamber proceeding, the show trial of the leadership of the black students and the Black Consciousness Movement, arbitrary deprivation of liberty by banning, and exposure of torture through inquest proceedings, to name only a few.
While in the majority of cases our intervention consists of financial assistance, we have also supplied useful technical assistance when necessary, such as brief writing and the supplying of expert witnesses and international legal observers. At a time when those few lawyers in South Africa who are willing to do political work are coming under increased governmental harassment, this kind of professional link is of inestimable value.
Domestic Litigation in the United States
In addition, we have helped break new ground by domestic legal actions. Over the years we have sought to initiate or intervene in legal proceedings in United States domestic courts to deter official or private actions which are supportive of South Africa’s policy of apartheid, particularly when such actions are expressly or arguably in violation of United States law. The novel approach taken by this programme has met with some successes over the years. It has helped focus the attention of the people in the United States and the rest of the world on racial problems of southern Africa and, on occasion, it has forced a change in the United States governmental policy and established new precedents with regard to the
legal interest of United States citizens in foreign policy matters.
Cases we have litigated have (a) challenged the publication by The New York Times of want-ads for employment in South Africa which expressed directly or indirectly racially discriminatory criteria for employment;163 (b) challenged an order of the Civil Aeronautics Board which authorised South African Airways to serve a new route between Johannesburg and New York on the grounds that the order violated the Federal Aviation Act which prohibited the Civil Aeronautics Board from issuing a permit to a foreign air carrier which discriminates among its passengers on a racial basis;164 (c) sought declaratory and injunctive relief to prohibit the United States Government from continuing to trade with South Africans and from importing seal furs from Namibia in violation of United Nations Security Council resolutions;165 (d) challenged the Commerce Department practice of sending special trade missions to Namibia;166 (e) challenged on behalf of the United Mine Workers and the State of Alabama the importation of South African coal into the United States on the grounds that it violated the Traffic Act of 1930 which precludes the importation of goods that have been produced by forced or indentured labour; and (f) intervened in a
proceeding before the United States Nuclear Regulatory Commission to challenge the issuing of a licence to export a sizeable quantity of highly enriched uranium for use in South Africa.
I wish I could say that we have constantly won these cases from a substantive point of view. More often than not, the courts have chosen to focus their attention upon the propriety of judicial intervention into what they considered to be a
“political question” or “act of State” and to resolve the issues on that narrow technical basis rather than to consider fully the merits of the cases.
Nevertheless, I think the tactic of domestic litigation to enforce international legal principles and obligations in relation to apartheid is a viable approach with
increasing possibilities for success. Such lawsuits have the result of calling both public and judicial attention to the actions being challenged and, most
importantly, portray them not merely as collaboration with South Africa, but, at least arguably, as violations of municipal and/or international law.
When we win, we make considerable substantive gains for the anti-apartheid movement. But even when we lose, the fact that the loss was based merely on
“technical” legal arguments goes far to convince the United States public that
163 American Committee on Africa vs The New York Times.
164 Diggs vs Civil Aeronautics Board.
165 Diggs vs Richardson.
166 Diggs vs Dent.
there is little justification for this country’s blatant disregard of its international obligations. The generation of such public sentiment and the bringing of well- substantiated claims in specific cases will also tend to expand the way the courts, if not the executive, perceive these issues in the future.
For example, due in some part to the arguments raised in the line of cases I have discussed, the United States courts have begun to recognise to some degree the enforceability of international law in domestic courts. A recently decided
landmark case, Filartiga vs Pena established that United States federal courts do have justification to entertain civil action based on human rights violations abroad and opened a door to the possibility of a judicial challenge of complicity between agencies of the United States Government and police officials from foreign countries, such as South Africa, which are notorious for their abuse of human rights.
Need for International Co-ordination
The tactic of using domestic litigation to enforce international obligations
regarding apartheid presents a legitimate and innovative role for lawyers not only in the United States but in all countries where constant monitoring of those obligations is necessary. Where such a tactic is viable in other legal systems, it should be encouraged by the Special Committee against Apartheid. As a small step in that direction the Special Committee should consider holding small technical seminars of public-interest lawyers from those countries in which domestic enforcement and agitation would be most useful.
Contrary to the notion that the utility of such a seminar would be limited by the great disparity between legal systems, it would create a forum in which anti- apartheid lawyers could begin to assess the potential for complementary action created by that very disparity.
After all, in many instances the structures which are supportive of apartheid are transnational, frustrating legal attacks which are bound by narrow jurisdictional limits. For example, imagine an action taken against a corporation in Western Europe which is a wholly owned subsidiary of a United States firm. While certain facts necessary to support a claim against it may not be available to the Western European attorneys handling the case, such information may well be available to United States lawyers through a request under the Freedom of Information Act or the public disclosure rules of the Security Exchange Act.
Lawyers who are willing to take up the challenge to enforce United Nations embargoes need an opportunity to exchange strategies, co-ordinate efforts and collaborate across national boundaries.