49 results in Unisa Press
1 - Quod severis metes: Birth of the United Nations
- Jeremy Shearar
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Summary
International organisation for a post-war world
From the outbreak of the Second World War, it was abundantly clear that the Covenant of the League of Nations (League) would not be adequate to meet the needs of a postwar world. Although the League continued to function nominally, most Allied combatants opposed its resuscitation and agreed that new arrangements were essential to maintain global peace and security. This entailed the continuing cooperation of the Great Powers, specifically the United Kingdom (UK), the United States of America (US) and the Union of Soviet Socialist Republics (USSR or Soviet Union), of which the second never joined and the third had been expelled from the League. The South African (SA) Prime Minister during the war years, Field Marshal Jan Smuts, was kept fully briefed on and frequently consulted about practical negotiations for a new organisation by the UK Prime Minister, Winston Churchill. Smuts's participation in the final discussions to create the new body was taken for granted and he would be elected to a high profile if rather honorific post at the United Nations Conference on International Organization (UNCIO).
The first public mention of a new arrangement was in the seventh clause of the Atlantic Charter, negotiated and signed on 12 August 1941 by US President Franklin D. Roosevelt and Churchill, which referred to the ‘establishment of a wider and more permanent system of general security’ than the League had provided. The Atlantic Charter itself could be said to hark back to two seminal documents. The first, containing the notion of a general association of nations ‘affording mutual guarantees of political independence and territorial integrity to great and small states alike’, was the last of US President Woodrow Wilson's Fourteen Points speech to the US Congress on 8 January 1918. In it he affirmed the principle of adjusting colonial claims on the basis of sovereignty, equal weight being given to ‘the interests of the populations concerned’. The second, which implicitly raised the question of fundamental human rights, was a speech distinguishing the Four Freedoms delivered 23 years later in the same forum by Roosevelt. The rights Roosevelt emphasised were those SA would maintain to be the fundamental rights implied in the Charter. They were freedom of speech and expression, freedom of religion or the ‘right to worship God in his own way’, freedom from want and freedom from fear.
Chapter 2 - South African Indians
- Jeremy Shearar
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Summary
First General Assembly
Indian complaint
In June 1946, shortly before the opening of the second part of the first session of the GA, the government of India requested the UN Secretary-General to include an item in the agenda on the treatment of Indians in SA. India submitted a long memorandum containing a historical survey of events from the 1850s to the adoption of the SA Asiatic Land Tenure and Indian Representation Act. The memorandum claimed that the two countries had entered into an agreement in Cape Town in 1927, which they had confirmed in a joint statement of 1932, on the upliftment of Indian migrants in the Union and their possible return home. These instruments amounted to valid international understandings, which, India alleged, SA had not honoured. SA was also in breach of its obligations under the Charter, notably in respect of equal rights and non-discrimination.
Prime Minister Jan Smuts led the SA delegation to the 1st GA, where he objected in the General Committee to the inscription of the Indian complaint, which dealt, not with Indian nationals, but ‘with Indians, nationals of the Union of South Africa’. This made it an internal matter within the purview of Article 2(7) of the Charter. India believed the question did not fall under Article 2(7), as its complaint sought only discussion under Article 10 of the Charter, not intervention. The UK, with Smuts's tacit support, proposed referring the domestic jurisdictional aspects to the Sixth (Legal) Committee (6th Cttee). The USSR thought the First (Political) Committee (1st Cttee) more appropriate since a breach of agreements was involved and ‘the oppression of minorities of any kind whatsoever was a matter for the States as a whole’. After the US proposed that both committees examine the complaint separately, the UK withdrew its suggestion and the US proposal was carried by the margin of one vote. Not having voted, the Ukraine demanded a fresh vote, but the committee chairman rejected its plea. Nevertheless Ukraine's proposal that the item be referred to a Joint Cttee was forwarded to Plenary.
In his report, the Secretary for External Affairs, D.D. Forsyth, said the SA delegation intended to make a full statement to the GA on domestic jurisdiction and ask that the item be referred to the ICJ for an advisory opinion.
10 - General relations with the United Nations
- Jeremy Shearar
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Summary
General Debate
A standard method for a member state to express its views in the UN was to participate in the General Debate, which opened each session of the GA and served as a barometer of international relations. A delegation could comment on any aspect of international affairs and often used the opportunity to explain its country's policies over the past year or to criticise shortcomings in the organisation. The General Debate could also reflect relations between individual members. It was a tool SA did not employ to best effect. During most of the period covered by this work, the DEA officials asked in vain to be allowed to play a more constructive role in the work of the UN. When the Union government finally acceded to their request in 1958, the changed membership of the organisation and the abrasive tactics employed by the Minister of External Affairs rendered the effort futile. This chapter surveys the deterioration of the NP administration's relations with the UN.
SA's early participation
After the NP victory in the elections of May 1948, the DEA prepared a brief on the UN for the Minister of Economic Affairs, E.H. Louw, who was appointed to lead the SA delegation to the 3rd GA. The brief took into account ideas the new administration had expressed in Parliament, but was not so overtly hostile towards the world body. It described the Charter as often abused, but as an ‘admirable document that purported to establish the rule of law for the rule of arbitrary force’. SA applied the rule of law at home and expected the UN to do the same. The Union would not undertake obligations other than those in the Charter, nor accept that the UN's jurisdiction could be made to exceed the ambit of the Charter, either by resolution or by interpretation. The brief stressed that the SA delegation ‘should defend the right of any member, even a critic, to accept or reject a resolution for sound reasons’ [my emphasis]. Constructive participation was the appropriate policy. Criticism from friendly states should be answered tactfully, but if SA were again placed in the dock at the GA, it might have to reconsider its position: ‘No public statement … committing the Union to a particular course of action, should be made without prior Government approval.’
3 - Universal Declaration of Human Rights
- Jeremy Shearar
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Summary
Commission on Human Rights
The Charter mentioned human rights and fundamental freedoms seven times. As they were not defined, the United Nations Preparatory Commission decided at its first session in London in December 1945 that a bill of rights should be drawn up. With the approval of the 1st GA, at its first session ECOSOC established an interim Commission on Human Rights (CHR), ‘consisting of a nucleus of 9 members appointed in their individual capacity’, their term of office to expire on 31 March 1947. Its competence included:
(a) Formulation of an international bill of rights;
(b) Formulation of recommendations for an international declaration or convention on such matters as civil liberties;
(c) Protection of minorities;
(d) Prevention of discrimination on grounds of race, sex, language or religion;
(e) Any matters within the field of human rights considered likely to impair the general welfare of friendly relations among nations (a later addition, possibly related to the GA's agenda item on the treatment of Indians in SA).
At the first session of the CHR the Assistant Secretary-General for Social Affairs, Henri Laugier, opened the discussions with the controversial comment that GA Res. 44(I) on the treatment of Indians in SA was proof that no violation of human rights could be covered up by the principle of national sovereignty. The Charter gave individuals and groups the belief that they had the right of appeal to the UN.
SA sent an observer to the meeting. He reported that the CHR was dealing with explosive topics and that some members approached the subject superficially. They were carried away by high-sounding ideals, forgetting to take practical issues into consideration. ‘If not handled correctly and with great judgement, [the CHR's efforts] may very well result in achieving the very opposite effect for which the United Nations was created’.
International bill of rights
The UK Foreign Office reported that the drafting committee established by the CHR had debated whether the bill of rights should take the form of a manifesto issued under cover of a GA resolution or whether it should be a convention with binding force. As the two proposals were not mutually exclusive, the drafting committee recommended that both paths be followed. It examined several drafts for a bill of rights, amongst which was the text on essential rights that Panama had submitted at UNCIO.
Abbreviations
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Appendix: Selected provisions of the United Nations Charter
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Summary
Preamble
We the peoples of the United Nations determined
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
and for these ends
to practice tolerance and live together in peace with one another as good neighbours, and
to unite our strength to maintain international peace and security, and
to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
to employ international machinery for the promotion of the economic and social advancement of all peoples,
have resolved to combine our efforts to accomplish these aims
Accordingly our respective Governments, through our representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;
4 - International covenants on human rights
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Summary
First draft covenant: South African response
Early in 1948, the CHR asked the UN Secretary-General to circulate to member states for their consideration and comment three draft texts, which together composed an international bill of human rights. They comprised a declaration of general principles, a draft international covenant of human rights, and measures of implementation. The aim of the draft covenant (hereafter the draft) was to formulate in a legally binding instrument the rights approved for inclusion in the declaration of general principles. The DEA asked the SA law advisers to examine both the declaration and the draft. The declaration, finally adopted on 10 December 1948 as the UDHR, was considered in Chapter 3.
The law advisers noted that the use of the phrase ‘as being among’ in Article 1 of the draft made it clear that the rights and freedoms enumerated in the text were not exhaustive. They believed that the rights mentioned should, as a protective measure, be considered exhaustive until amendments were introduced. The draft implied that international law would no longer simply be concerned with relations between states, but that a hitherto unknown field of relations between states and individuals would be added to it. Eventually, the notion that these rights were ‘founded on the general principles of law recognised by civilised nations’ would be used to make the covenant binding on third parties. ‘Those who are unable to sign the Convention [sic] may find that they have avoided treaty obligations merely to be confronted with so-called legal obligations.’
Several articles, the law advisers remarked, contained provisions at variance with SA law. Article 5 on the right to life seemed to recognise only one exception, the death sentence, leaving out of account loss of life resulting from the suppression of riots, selfdefence or attempted arrests. The drafting came under severe criticism, emanating from the law advisers’ view that universal standards did not exist. People differed, for example, on what constituted ‘cruel and unusual punishment’. Some articles, like Article 11 on freedom of movement, went beyond what could legitimately be considered fundamental human rights. Movement control was necessary in a multi-racial country like SA.
The SA government communicated its views to the Secretary-General. Although other governments also commented, occasionally in similar vein to the Union, only the SA suggestions, numbered as they appear in the relevant UN documents, are tabulated below.
7 - State sovereignty at issue
- Jeremy Shearar
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Summary
Introduction
On assuming office in May 1948, the NP administration emphasised that its policy towards the UN was based on the principle of domestic jurisdiction, in terms of which the GA was not empowered to discuss the internal affairs of a member state. Domestic jurisdiction trumped allegations of human rights violations. The new Prime Minister, Malan, stated that SA would assert its claim to the protection of Article 2(7) of the Charter, despite the interference that had already occurred contrary to the assurances Smuts had given Parliament in the 1946 debate on the Charter. Referring to a debate at the 2nd GA as to whether the UN should be ‘abolished completely, or modified and restricted’, Malan said ambiguously that SA would work in that direction and support all efforts to ‘restrain UNO from interfering in the domestic affairs of any nation’.
This chapter examines SA's adherence to that principle in respect of Soviet bloc countries, with which it did not maintain friendly relations, and the colonial powers, with which it did. It reviews the problems caused for the Union by a US proposal to expand the powers of the GA where the SC was hamstrung by the exercise of the veto and how that proposal was put into practice. The review concludes that the Union's stand on domestic jurisdiction was not inflexible, and could be attenuated by political considerations.
The Soviet bloc
Exit visa from the Soviet Union
When accused during the 3rd GA of violating the human rights of the Russian daughter-inlaw of the Chilean Ambassador to Moscow, by refusing her an exit visa, the Soviet Union replied that its decision was a matter of domestic jurisdiction. Article 2(7), it claimed, overrode the other Charter provisions, including Article 1(3) and Article 55. Instead of explaining the reasons for the visa refusal, the Soviet Union simply alleged human rights violations in Western countries, including discrimination against women in the US, the UK and France, and racial discrimination in Australia and SA. The Soviet Union used the tu quoque argument against SA to support its contention that a state had the sovereign right to issue or refuse entry or exit visas.
8 - Apartheid on the agenda
- Jeremy Shearar
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Summary
Apartheid first inscribed on the General Assembly agenda
The UN Department of Public Information dated the organisation's consideration of SA's racial policies from India's letter of 16 July 1948 to the Secretary-General requesting him to include the Indian question on the provisional agenda of the 3rd GA. That request stated: ‘The present Government in the Union of South Africa stands committed to the policy of “apartheid”, or racial segregation, and the domination of all non-White peoples by the Europeans’. The years from 1946 to 1952 constituted a period of consensus building at the UN, with increasing references to the general domestic policies of the Union government to buttress the Indian complaint.
The SA permanent representative, G.P. Jooste, noted these developments in his report to the Prime Minister after leading the SA delegation to the 4th GA. The UN, he wrote, had adopted a strong line over human rights, to the extent of ignoring domestic jurisdiction: ‘En aangesien die handhawing van menseregte geheel-en-al bepaal word deur die verhouding tussen die staat en sy burger, is die toeëiening van bevoegdheid in hierdie verband deur die Organisasie een van die mees onheilspellende ontwikkelings in die V.V.O.’ The implications, Jooste said, were most ominous for SA, where a white minority held power. As the whites would not share power, they created a permanent inequality, which made them the target of venomous criticism and poisoned SA's foreign relations. The term ‘apartheid’ had acquired overtones internationally, which the Union's critics could misuse to great effect. SA government propaganda was totally ineffective.
In January 1952, Malan made a strong attack on the UN during the censure debate at the opening of Parliament. His remarks were based on a resolution he had received from the ANC, calling for absolute equality between the races and an end to the colour bar. The ANC had said it relied on friends abroad, namely the UN. Malan accused the UN of casting aside its ‘manifesto’ that prevented it from interfering in domestic affairs. It was concerned, he said, only with the well being of the non-whites.
A month before the 7th GA, India, together with 12 Middle East and Asian states, asked the Secretary-General to include a supplementary item in the agenda: ‘The question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Union of South Africa’.
Frontmatter
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Contents
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Sources and references
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Introduction: ‘What we have lost is all the more reason for cherishing what survives’
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Aim
Through the person of General Jan Christiaan Smuts, its representative in the British War Cabinet of 1918, the Union of South Africa was intimately connected with preparations for the Covenant of the League of Nations in 1919. As a founding member, South Africa played a valuable role in the work of the League of Nations during the between-war years and was thrice elected to preside over its Assembly. During the 1935 debates on the imposition of sanctions against Italy after the invasion of Abyssinia, it even claimed to speak on behalf of the African continent. The regard in which the Union was held, was dampened only by the criticism it sometimes endured over its administration, under mandate, of the Territory of South West Africa, present-day Namibia.
The history of South Africa's later relations with the United Nations, after the demise of the League, can be divided into several phases. This work is limited to the first phase, 1945 to 1961, while the Union was a member of the British Commonwealth. It traces and comments on South Africa's decline in prestige in the United Nations after 1945; its failure to adapt to post-war global trends promoting human rights and fundamental freedoms; and the strengthening of discriminatory legislation after the advent of the National Party to power in 1948. It records the Union's steady alienation within the international community; the initial impact of the new members of the United Nations; and the involvement of the Security Council (SC) in the aftermath of the March 1960 Sharpeville demonstrations. South Africa's decision thereafter to become a republic and its withdrawal from the Commonwealth in 1961, which lead to its isolation in the General Assembly, provide a logical cut-off date.
A second phase would review isolation of South Africa within the United Nations while it was still allowed, over objections of the Africa and other groups, to participate in the organisation's work. This period would include the adoption of the two covenants on human rights; the establishment of the Human Rights Committee; and the evolution of the administrative aspects of human rights law. Pressures on South Africa increased with the establishment of the Special Committee Against Apartheid; calls for various forms of sanctions; and attempts to discredit the credentials of the South African delegation to the General Assembly.
6 - Evolution of human rights at the United Nations
- Jeremy Shearar
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Introduction
Human rights issues became a constant theme at the UN to complement its primary role of maintaining international peace and security. Certain of these issues have been touched on in the previous three chapters. Some others which also impacted in various ways on SA's relations with the organisation are discussed below. The first, relating to the rights and duties of states, covers the time frame both before and after the 1948 elections. The second, on the rights of women and children, highlights the problems SA officials experienced in dealing with issues where the Union could be exposed to allegations of discrimination. The third, covering refugees and their right to asylum, demonstrates how the SA government's attitude towards humanitarian issues was perceived by the rest of the world. Finally, the question of self-determination and the right of colonial peoples to independence is considered in the context of the equation of SA's domestic policies with colonialism by much of the international community.
Rights and duties of states
In tandem with its statement of essential rights, which served as the basis for the preparation and adoption of the UDHR, Panama proposed a draft Declaration of the Rights and Duties of Nations to the 1st GA. The draft was passed to member states for review. The SA law advisers had no comment but, as the DEA felt that there was a political advantage in submitting SA's views, it asked them to reconsider. Certain items seemed to be of interest. The law advisers’ response was sour: ‘When we are asked to comment on a matter … we examine its legal aspects, having regard to the special interests of the Union. The statement, therefore, that we have no comments to offer, follows upon such examination and signifies that in our opinion there is neither an illegality nor an endangering of the Union.’ International law, they said, allowed for divergent opinions and legal principles were made to fit political facts rather than government policies being adapted to a uniform international legal code.
The law advisers did, however, accede to the DEA's request. Their opinion did not relate to human rights per se, but made two points in that context. Firstly, the word ‘state’ had different meanings in different countries and times.
5 - United Nations surveys of human rights issues
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United Nations Yearbook on Human Rights
In addition to its work on an international bill of rights, the CHR charged the Secretary- General, at its first meeting in 1946, with the preparation of a UN Yearbook on Human Rights (YHR). The object of the YHR was to collate all declarations and bills on human rights in force in member states. For those which did not possess bills of rights, the Secretariat felt that statements outlining existing legislation and practice should be prepared by recognised experts in constitutional law. In SA, it approached Mr H.J. May, ‘a solicitor practising in the Transvaal’. May noted that the South Africa Act of 1909 contained no guarantees of human rights and equal treatment often found in other constitutions. Acts of Parliament were the supreme law of the land and often discriminated against non-Europeans in political, property, social and economic rights. Protection against their infringement had to be sought in the courts, which rigorously upheld the law ‘without respect of colour or race’.
The Secretariat passed May's draft to the Union government for approval but the DEA considered it unsuitable as it dealt primarily with recent SA discriminatory legislation, which had been subjected to criticism in the UN. The DEA informed the Secretariat that it would provide a revised draft ‘in which the conception of human rights prevailing under South African Common Law and the South African constitution will be set out in its correct perspective’.
To assist them in preparing a new statement, the DEA sent the law advisers a copy of the text of the UK submission, which was drafted for the YHR with the approval of the UK government by Sir Cecil Carr, Counsel to the Speaker of the House of Commons. It set out the general nature of the British legal system and the checks on arbitrary rule, before dealing specifically with the various freedoms enjoyed by British subjects, namely personal freedom, freedom of speech, freedom of the press, religious freedom, freedom of assembly and association and freedom from want. The paper contributed by the SA law advisers followed the general pattern of the Carr text and, judging from the various drafts on Justice's file also of the May submission. The first draft claimed that legal discrimination was ‘small compared with the inherent liberties which [non-white peoples] enjoy’.
Against The Worlds
- South Africa and Human Rights at the United Nations 1945–1961
- Jeremy Shearar
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Against the World maps South Africa’s journey to increasing isolation in the United Nations, from a respected member in 1945 to a pariah’ in the early sixties. The book reveals how this country became the main architect of its own growing isolation, since it refused to modify domestic policies that alienated even its potential allies. Its low profile in debates and constant abstention on human rights instruments were seen as a lack of interest in global humanitarian affairs. Events unfold from 1945, when Field Marshall JC Smuts proposed the adoption of a Preamble to the United Nations Charter. Three years later, South Africa refused to sign the Universal Declaration of Human Rights. Global criticism against apartheid intensified, until in 1960 it culminated in calls from African members for economic and diplomatic sanctions. By 1961, South Africa had become isolated in the United Nations and relegated to a moral wilderness. For the modern reader of history and social affairs, the book clarifies South Africa’s past and present role in the evolution of international humanitarian law.
Index
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9 - Shadow of Sharpeville
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SA leaves the Commonwealth
Winds of change
The UK intervention in the Special Political Committee during the apartheid debate at the 14th GA at the end of 1959, where its representative merely reiterated his government's traditional stand on competence, gave little hint of change. Below the surface, however, tensions had been simmering between SA and other Commonwealth members for some time. The UK permanent representative reported to his government in November 1955 during the 10th GA that the South Africans knew that even ‘their few constant supporters did not in fact agree with them’. The actions of ‘old’ Commonwealth colleagues during and after the 14th session revealed such tensions just below the surface. The SA acting High Commissioner reported that, in its Parliament at Ottawa, Canada had even evoked the spectre of choosing between SA and the new Commonwealth members at the UN.
The Union government facilitated disengagement. Although the Governor-General's speech opening Parliament in January 1960 gave no warning, Prime Minister Verwoerd chose the no-confidence debate to announce a referendum, at a time to be decided, to ascertain whether SA should become a republic. The change had been in gestation as a constant aim of NP governments since Union in 1910. It was appropriate, he said, to make the announcement before the fiftieth anniversary celebrations of Union, but the vote would not take place until the emotions they excited had subsided.
The UK Prime Minister, Sir Harold Macmillan, arrived in Cape Town on the heels of this announcement at the close of a tour through Africa, during which he had assured the new states of continued UK support and cooperation. Without prior warning and in the precincts of the SA Parliament, Macmillan told his audience on 3 February 1960 that the West needed to come to terms with African nationalism: ‘The winds of change were blowing through Africa.’ It was the theme of his African tour but the time and place of this speech gave it added resonance and impact. The UK had to do its duty as it saw it, he said, and could not be expected to extend support to SA for a policy that denied access to political power on the basis of race.
11 - Concluding observations
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Summary
Introduction
The aim of this chapter is to extract major elements of SA's early relations with the UN as they have emerged from an examination of available documentation and themes addressed in previous chapters and, somewhat cursorily, to consider their relevance, if any, to later developments. To do so it will be necessary to refer to events outside the time frame of this work. Some overlapping with earlier chapters is thus unavoidable.
South Africa and interpretation of the Charter
‘History,’ observed F. Fernandez-Armesto, ‘is moulded more by the falsehood men believe than by the facts that can be verified.’ The remark serves as a counterpoint to Kelsen's prefatorial comment: ‘It is not the logically “true”, it is the politically preferable meaning of the interpreted norm which becomes binding.’ Against this background, the concept of the ‘amendment of the Charter by interpretation’ against which SA representatives so often inveighed, tends to lose practical relevance. No document survives the test of time untouched; words change their sense with the passage of the years. Several of those used in the Charter were already open to various interpretations when they were first included. Most drafters had specific meanings in mind, but even they recognised that their brainchild would have to adapt to a changing world if it and the UN were to last. As G. Ress has pointed out, the fact that the text has survived for 50 years with minimal changes proves its adaptability. The declaratory resolutions attendant on the admission of the newly independent states at the end of the 1950s did not indicate their rejection of certain Charter provisions as at first drafted, but rather their desire to relate them to conditions with which they were familiar, with, for the most part, the assent of the original members.
Kelsen's rider that the choice of interpretation ‘as a legal act’ depended on political motives begged the fact that the UN is not a law-making body. It can purport to codify existing international law, and to adopt conventions or declaratory recommendations, but the effectiveness of its actions is limited to the members who choose to abide by them. Thus, despite its moral significance, the UDHR, like the resolutions which flowed from the UNCORS reports, was a political rather than a juridical document, the legal force of the international instruments it spawned binding only the states that ratified them.
Acknowledgements
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