Human Rights and International Law

Human rights and foreign policy in post-apartheid South Africa
Tiyanjana Maluwa
from Human Rights and Comparative Foreign Policy: Foundations of Peace, David P. Forsythe, ed.
United Nations University
2000

 

I. Introduction

On 19 February 1997 a brief exchange took place in the South African parliament between Colin Eglin, an opposition Member of Parliament, and Alfred Nzo, the Minister of Foreign Affairs. The subject matter of this dialogue was the impact of human rights violations on South Africa's relations with other countries. 1 There were three separate but related questions, which may be briefly paraphrased as follows. First, do fundamental human rights, and violations thereof, have any influence on the South African government's relationships with governments of other countries and what criteria does the South African government employ in its assessment of violations of human rights by governments of other countries? Second, in respect of what countries has the violation of human rights influenced the government's relationships with the governments of those countries? Third, has the government raised the issue of the violation of human rights with the governments of any other countries; if so, which governments? 2 In essence, the exchange was concerned with the role of human rights in South Africa's foreign policy.

In responding to these questions, the minister offered an affirmation of the new South African government's position on the role of human rights in foreign policy. With regard to the second question, the minister stated, in part: "The question of human rights is one of a number of factors that impacts continuously on the relationship of Government towards all other governments since all countries are accused, to a greater or lesser extent, of being guilty of some human rights violations." 3 In response to the third question, he went on to state categorically that "[human] rights considerations are now an integral part of South Africa's foreign policy and are raised as a matter of course in discussions and negotiations with other governments." 4 To underscore the point, the minister provided some examples. Thus, it was stated that South Africa had imposed a moratorium on the export of armaments to Turkey in May 1995, primarily owing to concern over human rights violations in that country. It was also pointed out that at the conclusion of former Iranian President Rafsanjani's visit to South Africa in September 1996, "no joint communique was issued because South Africa could not, during bilateral talks, accept the Iranian standpoint on human rights." 5

The timing of these questions was not accidental. Then President Mandela had just completed a visit to a number of East Asian countries. He had been reported in the local media as having declared in the course of his visit to Singapore that South Africa was not going to base its choice of friends or the conduct of its foreign affairs on the human rights records of other countries. Rather, that such matters were to be regarded as remaining within the exclusive domestic jurisdiction of those states. 6 Ironically, the exchange referred to above also took place shortly before rumours began to surface in the local media that South Africa had quietly lifted its self-imposed embargo on the export of armaments to Turkey. This was subsequently confirmed by both Aziz Pahad, the Deputy Minister of Foreign Affairs, and Kader Asmal, a cabinet minister who was also the Chairperson of the National Conventional Arms Control Committee. In the latter's words, the decision was taken "for political reasons in South Africa's interests." 7

Given these developments, one is compelled to ask: to what extent has the actual practice of post-apartheid South Africa in incorporating human rights in the formulation and implementation of its foreign policy accorded with its professed policy on the matter? What contradictions have emerged in South Africa's attempts to combine ethical considerations, such as the protection and enhancement of human rights, with foreign policy objectives? How is South Africa's emphasis on the protection of national interests to be reconciled with the emphasis on the promotion of human rights abroad?

This chapter seeks to examine these questions. The thesis of this discussion can be simply stated. In its efforts to articulate a human-rights-oriented foreign policy, South Africa finds itself in the age-old dilemma in which the older liberal democracies of the West have from time to time found themselves. 8 This dilemma is often reflected in the apparent indecision about whether or not to elevate human rights over state sovereignty; whether or not to privilege human rights concerns in foreign countries over the advantages of carrying out trade with those countries; and whether or not to give priority to demands for the protection of human rights abroad over national strategic concerns at home. It will be shown that, in the final analysis, because of its failure to make clear choices on these competing demands, South Africa will likely continue to offer general platitudes on lofty principles that cannot be squared with its actual practice on the interaction of human rights and foreign policy. The most probable result is that foreign policy formulation and implementation will continue to be characterized by double standards and inconsistencies. As is argued in this chapter, this is a fairly common characteristic even among countries, especially in the West, that purport to place a high premium on human rights in the design and conduct of their foreign policy.

The above thesis acknowledges the fact that the role of human rights in foreign policy has always been a contested issue in international relations. History shows that the prominence given to human rights in foreign policy debates has tended to vary depending on the particular paradigm under consideration. It has been suggested, for example, that the history of East-West relations was in an important sense the history of a dispute about human rights. 9 Yet, Western countries have not always been necessarily consistent in their advocacy of a human-rights-oriented foreign policy as far as North-South relations are concerned. It is generally acknowledged that American foreign policy towards Africa under the stewardship of Henry Kissinger, for example, was marked by the deliberate exclusion of human rights considerations from foreign policy. What was more important in the United States' dealings with former President Mobutu's Zaire, apartheid South Africa, and assorted despotic and undemocratic regimes in various parts of the continent was the perception that these countries provided a bulwark against Soviet or communist expansionism in the region. Political repression and flagrant human rights violations did not feature prominently, if at all, as a restraining factor in the pursuit of American foreign policy interests in these countries.

The reasoning behind this approach was that the defence of the morality of state or national interests must override other concerns. 10 It was an approach that, therefore, deliberately subordinated human rights concerns to Cold War calculations and resulted in obliviousness, for example, to the claims of people on the receiving end of oppression and torture in various countries. 11 Mullerson has examined the inconsistencies and paradoxes of this approach and, not surprisingly, concludes that, with the end of the Cold War, the interaction of human rights and foreign policy is at a cross-roads. He accordingly observes that:

During the Cold War, human rights issues in international relations were often used for political purposes which were far from a genuine concern for human rights. On the other hand, human rights were often forgotten for the sake of raison d'etat. [Human] rights seem to affect post-Cold War international relations more than before because there is no longer an overwhelming security threat; instead, there are multifarious threats to international security, many of which have their origin in the human rights situation of a particular country. 12

The continuing relevance of human rights to post-Cold War diplomacy is not, of course, limited to relations between the major powers. It also pervades the interactions between the major powers and the smaller nations in North-South relations. Moreover, human rights considerations are increasingly playing a part in the foreign policy calculations and choices of the smaller and middle powers of the South even in their relations with each other, as the South African policy statements suggest. At least this much can be discerned from the rhetoric.

II. Domestic factors

Previous South African governments never pretended to pursue a foreign policy based upon or informed by human rights considerations. The new government, by contrast, claims to have introduced human rights criteria into the conduct of its foreign policy. Yet, as will be seen in this discussion, in some cases the foreign policy of the post-apartheid government clearly contradicts these self-claims regarding the incorporation of human rights criteria into foreign policy-making. This can be noted, for example, in the area of arms sales, in the treatment of refugees and undocumented migrants, and in the context of relations with governments and regimes that are widely suspected of committing serious violations of human rights against their own populations.

To date there has not been any official foreign policy document (that is to say, a government "White Paper") in South Africa. Some critics have argued that this is an indication of a lack of a coherent foreign policy vision. Thus, commentators have observed that foreign policy-making has been characterized more by short-term, ad hoc, reaction than by long-term strategic visionary management. Indeed, it has been noted that it may take some time to refine the process of foreign policy formulation and implementation. 13 It cannot be denied that the Department of Foreign Affairs (DFA) has been slow in articulating a comprehensive new vision to underpin South Africa's proposed international relations agenda. It was only in June 1996, a full two years after the assumption of power by the new government, that the DFA released what has been politely described in some academic circles as "a kind of draft white paper." 14 However, simply to state this would be to create the impression that no directions or principles have been enunciated by the policy makers in the DFA since the inception of the new government. It would also be to overlook the difficulties facing the DFA in its attempts to integrate and change the two distinct foreign policy traditions of the liberation movement and the previous apartheid government, and the consultative process it has to embark upon in this regard. To be sure, the foreign policy objectives of South Africa can be gleaned not only from the discussion document, but also from the various pronouncements that have been made by the Minister of Foreign Affairs and his deputy, and also by former President Mandela himself and the former Deputy President, Thabo Mbeki, in different forums and contexts.

In 1993, before assuming the presidency, Mandela outlined the pillars on which South Africa's foreign policy would rest. These were that:

It has been noted that, of these, the greatest attention was given by Mandela to the issue of human rights and the promotion of South Africa's economic interests, but that developments within South Africa in the months that followed the publication of these views demonstrated just how difficult it is to combine these two as guiding criteria for a nation's foreign policy. 16 Shortly after the inauguration of the new government on 10 May 1994, the Minister of Foreign Affairs reiterated these themes in his first address to the South African parliament. He declared that South Africa's foreign policy was going to be based on the following guiding principles:

Firstly, a commitment to human rights, specifically the political, economic, social and environmental circumstances; secondly, a commitment to the promotion of freedom and democracy throughout the world; thirdly, a commitment to the principles of justice and international law in the conduct of relations between nations; fourthly, a commitment to international peace and internationally agreed mechanisms for the resolution of conflict; fifthly, a commitment to the interests of Africa in global affairs; and sixthly, a commitment to expanded regional and international economic co-operation in an interdependent world. 17

However, it should be immediately noted that in further policy guidelines outlined to parliament some four months later, in August 1994, the minister emphasized that the achievement of South Africa's declared foreign policy objectives would be circumscribed by a number of considerations, for example: that the national interests of South Africa and the security and quality of life of South Africans, as well as justice and the international rule of law, peace, economic stability, and regional cooperation, would be paramount. 18

These policy objectives and guidelines have been repeatedly articulated in subsequent parliamentary statements and debates, as was noted at the outset of this discussion. It is clear that, at least in official rhetoric, the promotion of human rights is seen as an integral component of the new foreign policy. How one implements this aspect of foreign policy is, however, not clearly spelled out. It is in the context of the actual process of conducting international relations that the ambiguities and inconsistencies surrounding the promotion of human rights through foreign policy begin to emerge. This has been acknowledged by the Deputy Minister of Foreign Affairs himself, Aziz Pahad, who observed in September 1996 as follows:

We start from the premise that South Africa is committed to human rights. The problem we face in this regard is the issue of possibilities and limitations on South Africa in the real world. How do we get human rights enforced and implemented in the international environment? There must be a possible [sic] contradiction between South—South cooperation and the values which we may want to project. There has to be interaction between theory and practice. 19

The foreign policy of a country is intrinsically linked to domestic politics and framed by the prevailing global norms. Now, according to the pronouncements quoted above, adherence to human rights forms the foundation upon which post-apartheid South Africa's national politics are to be conducted. In suggesting that there must be a contradiction between South—South cooperation and the values that South Africa may project, Aziz Pahad was recognizing the dual path that the country has to tread. At least two issues ought to be borne in mind here.

First of all, South Africa is, on the one hand, an African country. As such, it is a member of the group of nations that comprise the so-called "South" and whose approaches to human rights do not always coincide with those of Western powers. On the other hand, South Africa is in certain respects "a part of the West in Africa," as Mills richly expresses it. 20 As such, it aspires to an approach to human rights that accords with the general tenor adopted by the longer-established Western liberal democracies. Secondly, South Africa is both an aid recipient and, in relation to some African states, an aid provider. Thus, both its domestic and foreign policies have to conform to the norms set by Western governments and, to a limited extent, international financial institutions (IFIs). It is to be noted, for example, that, although it is not yet the official policy of the World Bank and the International Monetary Fund to make human rights conditionality a systematic part of their policies, some Western powers have forced the Bank, but not the Fund very often, to look at human rights factors on a willy-nilly basis (for example, by insisting on linking ecological concerns or the issue of good governance to loans). Thus far, South Africa has not yet had to contend with such demands. In any case, given post-apartheid South Africa's comparatively commendable record, to date, of human rights observance and democratic governance, it is unlikely that such conditionalities would be relevant even if South Africa were to become a borrower state from the World Bank or other IFIs in the foreseeable future. The role of human rights in South Africa's relations with IFIs does not, therefore, call for any detailed examination in the present discussion.

And, so, we might ask: what are, or have been, the practical manifestations of the ambiguities of South Africa's foreign policy? How has the contradiction between "South—South cooperation and [South Africa's] values" anticipated by Deputy Foreign Minister Aziz Pahad been demonstrated? To date, the implementation of the human rights objectives has been evidenced through such acts as the signing of treaties, participation in multilateral forums dealing with human rights issues, the redefinition of the principles and practices relating to the export of arms and other military equipment, and South Africa's engagement with the question of human rights and democratization in a number of African countries, notably Lesotho, Nigeria, and the Democratic Republic of Congo (formerly Zaire). The ambiguities are more starkly evident in South Africa's relations with some Asian and Middle Eastern countries, where trade rather than human rights appears to be the paramount concern; in its relations with Cuba; in its treatment of refugees, especially those from other African countries; and in the way it seeks to implement its foreign policy, namely through "quiet diplomacy" or "creative engagement," for example in relation to Indonesia, as will be discussed later. It is instructive to look at some of these examples in both the multilateral and bilateral contexts. But, before turning to these examples, it is important to note that a variety of factors, as well as actors, in the domestic political sphere will continue to be critical in the process of shaping a human-rights-oriented foreign policy for South Africa.

South Africa, much more so than most other African countries, boasts a vibrant and activist civil society. A number of civic organizations played a crucial role in accelerating the pace of change and the collapse of the apartheid order in its final days: the church, youth groups, the labour movement, various civil rights campaigners and human rights organizations, and so on. Some of these groups have already shown that they intend to keep watch over the new government's conduct of foreign policy, insofar as compliance with the government's own declared human rights criteria is concerned. In general, most of these organizations have insisted that South Africa use its moral authority to promote respect for human rights around the world, and especially in Africa, and they urge the involvement of civil society in this process. Thus, organized labour, through the Congress of South African Trade Unions (COSATU), has been very vocal and insistent on the need for the South African government to press for democratic change in Nigeria and for the betterment of respect for human rights in countries such as Swaziland and Zambia. Indeed, COSATU went out of its way to pledge solidarity with locally based Nigerian pro-democracy campaign groups in organizing demonstrations and campaigns against the military regime of General Abacha after the execution of Ken Saro-Wiwa and eight of his fellow human rights campaigners in 1995.

Church groups and other civic organizations have also been critical of continued arms sales to rebel movements and governments engaging in gross violations of human rights or international humanitarian law. Human rights campaigners and academic scholars have called upon the government to adopt legislation (and not simply regulations or procedures internal to the government) incorporating human rights principles into its conduct of foreign affairs. 21 Partly in response to pressure emanating from civil society, in March 1998 the South African parliament finally adopted legislation barring the provision of military assistance to foreign bodies or regimes by private persons or organizations from South Africa. The Regulation of Foreign Military Assistance Act makes it a serious crime for South African citizens to become involved in mercenary activity of any kind, inside and outside of South Africa. The legislation also makes it illegal for foreigners to use South African soil as a springboard against other countries. The enactment of this law was provoked by the repeated allegations of involvement of a South African company, Executive Outcomes, in the provision and sponsorship of arms and mercenaries in countries as far field as Angola, Papua New Guinea, and Sierra Leone.

In brief, the most important domestic factor that will guarantee the government's compliance with its own self-declared commitment to human rights is without doubt the vigilance offered by civil society itself. South Africans are only too aware of the all-too-recent abuse of human rights by previous regimes in their country. The involvement of previous South African governments in large-scale destabilization campaigns and cross-border human rights violations in neighbouring countries — Botswana, Lesotho, and Mozambique — is still fresh in most people's memories. It is these memories that will, in part, ensure that pressure continues to be brought to bear upon the relevant authorities to ensure full respect for the human rights criteria that the post-apartheid government purports to follow in its foreign policy.

III. Multilateral policy

The South African government has indicated that it proposes to approach the promotion of human rights abroad, and conflict prevention and resolution, within established multilateral frameworks and institutions. 22 It has been suggested that there are at least three reasons for multilateral schemes being better than unilateral or even bilateral approaches to these matters. First, a multilateral forum is said to have greater legitimacy than a state acting alone. Second, multilateralism increases the effectiveness of the initiative and the sanction by demonstrating that a large number of states are committed to a course of action in the pursuit of the common goal of human rights protection. Finally, it is argued, the employment of a multilateral approach, for example through international or regional organizations, in turn helps to consolidate the international human rights structures themselves, thereby contributing to the growth of an international human rights culture. 23 In order properly to assess these multilateral approaches, first one must look at how international human rights law is encoded within the municipal legal sphere of the given state; and, second, one should determine how this law guides, or ought to guide, the state's conduct of its relations with other states and other international actors.

Human rights in the Constitution of South Africa: Status of the International Bill of Rights

The South African Constitution of 1996 was symbolically signed by then President Mandela on 10 December 1996, International Human Rights Day, at Sharpeville. Sharpeville is, of course, tragically remembered as the scene of one of the most brutal massacres and human rights violations in South Africa's recent history. The Constitution entered into force on 4 February 1997. It had been drafted and adopted in terms of Chapter 5 of the interim Constitution of South Africa of 1993, which ushered in South Africa's first democratically elected government on 10 May 1994, when Nelson Mandela was sworn in as President.

The 1996 Constitution largely confirms the innovative approach that had earlier been embodied in the interim Constitution of 1993 in entrenching certain fundamental human rights in a justiciable bill of rights. 24 The Constitution is also unique among most modern constitutions in according international law, and in particular international human rights law, a constitutionally defined status within the municipal legal system and an explicit role in the interpretative process. 25 The Constitution thus creates a legal and political environment that aims to guarantee and protect the entire range of internationally recognized human rights for the benefit of all individuals in post-apartheid South Africa. This domestic protection of fundamental rights complements the international protection regimes established under international law and institutions.

A perusal of the rights protected in the South African Constitution of 1996 easily reveals that there is significant commonality with the rights stipulated in the principal founding instruments of international human rights law. These instruments, collectively termed the "International Bill of Rights", are: the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social, and Cultural Rights (1966). There are other aspects of the South African Constitution that are also relevant to any discussion of the interaction between human rights and foreign policy in the new South Africa. In this regard, one needs to mention only two such aspects. First, the Human Rights Commission. This is a body established under the Constitution with powers, inter alia, to "promote the protection, development and attainment of human rights" and to "monitor and assess the observance of human rights" (Section 184). Second, the establishment of Parliamentary Portfolio Committees — the so-called "watchdog committees." This ensures internal scrutiny of all legislative acts by peer committees within parliament. The Parliamentary Portfolio Committee on Foreign Affairs is thus empowered to assess the conformity of legislation that impacts on the conduct of South Africa's foreign policy with the Constitution, including the bill of rights. This new system also allows non-governmental organizations (NGOs) to lobby parliament, through the portfolio committees, on proposed legislation or other government policy initiatives. Some commentators have suggested that this system is ineffective, not least because the DFA is not required to justify any decisions to parliament. 26 I would argue, however, that potentially this presents human rights NGOs with an effective, if indirect, mechanism to get involved in the legislative debates concerning human rights and foreign policy, among other subjects.

The constitutional and legal structures put in place in post-1994 South Africa are clear enough. As stated earlier, the principal objective is to create a political and constitutional order based on respect for human rights. It should follow from this that in all its actions — both administrative and legislative — the government is obliged to abide by the human rights standards and norms set out in the Constitution, relevant national legislation, and applicable international human rights instruments. There is nothing startling in the proposition that states must respect the human rights standards and criteria that they themselves have enshrined in their national constitutions and legislation. The critical question is whether, and to what extent, these criteria ought also to guide their foreign policy. The practical implementation of South African foreign policy to date has not accorded with this proposition.

Regional developments

As already noted above, to most observers within and outside South Africa former President Mandela embodied the ideals of human rights and justice. His stature, with varying degrees of success, enabled him to assume the role of mediator in civil conflicts in Africa and to position himself to speak up against human rights abuses by his counterparts elsewhere on the continent. The common global expectation, going back to the inception of the new democratic order, was that South Africa, through the persona of Nelson Mandela, would champion human rights throughout Africa and elsewhere in the third world.

It is primarily within Africa that the South African government's attempts at fostering a climate in which human rights prevail can be seen. The restoration of the democratically elected government of Lesotho after it had been ousted in a coup d'etat and South Africa's attempts to negotiate with the military rulers of Nigeria in order to secure the release of political prisoners (as well as its campaign to institute an investigation into allegations of human rights abuses in the country) are only two high-profile examples in this regard. To these may be added the involvement by South Africa in the failed mediation between Mobutu Sese Seko and Laurent Kabila, whose rebel forces drove the former out of power in the renamed Democratic Republic of Congo in May 1997. Unfortunately, Nigeria and the former Zaire also happen to be the two cases that have shown up the impotence of South Africa's self-proclaimed human-rights-oriented foreign policy. The strong position taken on Nigeria at the time of the Commonwealth Heads of State and Government Meeting in New Zealand in November 1995 was significantly softened not too long afterwards. Similarly, concerns over massacres of refugees by the soldiers of Kabila's Alliance des Forces DÈmocratiques pour la LibÈration du Congo-Zaire (AFDL) in the eastern part of the Democratic Republic of Congo were played down by the South African government, apparently in the misplaced belief that a softer attitude in this regard would guarantee the success of then President Mandela's mediation effort. Despite these setbacks, more recent developments suggest that South Africa is getting involved as a mediator in the long-running civil war in the Sudan. Both the Sudanese president and a representative of the major rebel movement, the Sudan People's Liberation Army (SPLA), were in South Africa at the beginning of August 1997 for exploratory talks with then President Mandela. Thus far, however, South Africa's role has largely been a diplomatic one. It has resisted calls to send troops to countries or regions afflicted by civil strife, usually citing the unpreparedness of its national defence force for such operations.

South Africa also has to walk the tightrope between enforcing human rights and being perceived as either a regional hegemon or a proxy doing the bidding of external powers, such as the United States, that may be seeking to police and dominate the continent. These perceptions partly explain the reluctance of most African states to heed South Africa's calls for concerted action in reaction to the violations of human rights in Nigeria. It is also largely because of this that South Africa now seems to prefer "quiet diplomacy," which essentially entailed using Mandela's moral authority to intercede in behind-the-scenes negotiations with foreign leaders on issues of human rights violations in their countries, rather than venturing into more overt tactics such as the unilateral imposition of sanctions or calls for the imposition of such sanctions, as was attempted in the case of Nigeria. 27 But, more importantly, South Africa has also come to appreciate that it is only within the space provided by the relevant regional organizations, the Southern African Development Community (SADC) and the Organization of African Unity (OAU), that it can most effectively pursue a meaningful human-rights-oriented foreign policy.

The Southern African Development Community (SADC)

South Africa has been a member of the SADC since 29 August 1994. In this brief period, it has already proved to be a pivotal member of this regional grouping. This period has also witnessed important developments in the field of human rights promotion. In the first place, SADC established, on 26 June 1996, an Organ for Politics, Defence and Security, with the primary objective of coordinating policies and activities in areas implied in the title of the entity itself ("politics, defence and security"). But the Organ is also predicated on a number of guiding principles, among which are the "observance of human rights, democracy and the rule of law" and the "observance of universal human rights as provided for in the Charters of the OAU and the UN." 28 In fact, it may be noted that, prior to the establishment of this Organ, South Africa had already participated in a regional initiative to restore stability and democracy in a neighbouring SADC state, namely Lesotho.

The government of Prime Minister Ntsu Mokhehle in the tiny landlocked Kingdom of Lesotho had experienced months of instability, including an army mutiny, shortly after being elected in the country's first democratic election in almost a quarter century, held in 1993. In August 1994, King Letsie III dismissed the government and in effect implemented a coup d'etat. The ousted government was finally restored to power only after some high-level diplomacy involving Botswana, South Africa, and Zimbabwe. These three countries undertook the initiative to enforce what had emerged as an "SADC regional consensus" on the need to resist unconstitutional usurpation of power and to protect democracy and human rights.

Alongside this development is the long-standing proposal, dating back to 1994, for the establishment of a human rights commission or court as part of the institutional machinery of SADC. It is felt that such a commission or court would ensure a more certain enforcement of human rights in the southern African region and complement whatever is provided for under existing UN or OAU machinery. 29 It seems apt to conclude that with its far-reaching domestic bill of rights, which, as we have seen, entrenches the most widely recognized fundamental human rights, and the emerging human rights jurisprudence from its Constitutional Court, South Africa stands in a unique position to contribute to, and enrich, this proposed regional human rights regime among SADC countries.

The Organization of African Unity (OAU)

South Africa has also sought to play a very active role in promoting democracy, human rights, and conflict resolution within the institutional framework provided by the OAU since its admission to this continental body on 23 May 1994. South Africa has reiterated these objectives on a number of occasions. Thus, then President Mandela declared at the summit of the Assembly of Heads of State and Government on 8 July 1996 in Yaounde, Cameroon, that "South Africa would not shrink from its responsibility to help resolve conflict and advocate human rights on the continent." 30 South Africa's advocacy of human rights within the OAU was strengthened when it acceded to the African Charter on Human and Peoples' Rights on 9 January 1996. The African Charter was adopted by the Organization of African Unity in 1981 and came into force on 21 October 1986. It is the newest of the regional human rights conventions, with what is claimed to be a distinctly "African character." It draws upon other human rights conventions, and recognizes basic civil, political, economic, social, and cultural rights. In addition, it gives recognition to so-called third-generation (or solidarity) rights: for example, rights to development, a healthy environment, self-determination, peace, and so on. South Africa has also become involved in the African Commission on Human and Peoples' Rights, which was established to oversee implementation of the African Charter and to monitor human rights violations reported to it. The current chairperson of the South African Human Rights Commission, Dr. Barney Pityana, was voted into membership of the African Commission at the summit of the Assembly of Heads of State and Government in Harare, Zimbabwe, in June 1997. Another OAU institution in which South Africa is likely to play an important role is the proposed African Court on Human and Peoples' Rights. On 27 February 1998, the OAU Council of Ministers approved the draft Protocol on the Establishment of an African Court on Human and Peoples' Rights at its 67th Ordinary Session in Addis Ababa, Ethiopia, and recommended it for adoption by the Assembly of Heads of State and Government at its summit in June 1998 in Ouagadougou, Burkina Faso. South Africa has already indicated its commitment to the proposed court. In fact, the South African government hosted the very first meeting of government legal experts at which the draft Protocol was first elaborated and examined. 31

The United Nations

The previous apartheid regime in Pretoria had tended to view the United Nations and other international human rights organizations with both suspicion and disdain. This was hardly surprising, given the widespread condemnation that apartheid South Africa was subjected to in these organizations. Moreover, for a period of 20 years, starting in 1974, South Africa was not allowed to take up its seat in the UN General Assembly, although it continued to be a member of the organization. The advent of a new democratically elected government, therefore, marked a turning point for South Africa's relationship with the world body. Not surprisingly, Mandela's theme in his first address to the UN General Assembly since assuming the presidency was that of "democracy, peace and human rights." He reminded fellow member states that the great challenge of our age is to answer the question: "[What] is it that we can and must do to ensure that democracy, peace and prosperity prevail everywhere?" 32

Without doubt, the most significant aspect of South Africa's participation in the United Nations, insofar as the question of human rights is concerned, was its election to chair the UN Human Rights Commission during its 54th Session (March—April 1998). South Africa took up its seat on the Commission on 1 January 1997. Here, again, the debate on human rights violations in Nigeria provided South Africa its first opportunity to translate into practice its verbal commitment to the struggle for human rights in Africa and elsewhere in the world. It was also an opportunity to promote, in the scheme of its international relations, the human rights culture that had been laudably incorporated into its national legal order. South Africa was thus the only African country to support the resolutions on Nigeria both in the UN General Assembly and (with the exception of Uganda) in the Commission, much to the chagrin of most African states and the OAU itself. 33 On other human-rights-related matters, South Africa has been quite content to follow the general line adopted by the United Nations. A case in point is the Western Sahara: progressive forces and some political groups at home and abroad have criticized the South African government for not taking a more proactive position and declaring its recognition of the Polisario Front's unqualified right to self-determination over the disputed territory. Clearly, the solidarity that the African National Congress (ANC) may have extended to the Polisario Front in its days as a liberation movement has not been translated into concrete support in the post-liberation era, nor has it persuaded the South African government to shy away from maintaining fairly close and cordial ties with Morocco. Like most other African states, South Africa is happy to accept the Saharan Arab Democratic Republic as a fellow member of the OAU while also acknowledging the legitimacy of the on-going efforts by the United Nations to negotiate a lasting solution to the dispute between Morocco and the Polisario Front over the Western Saharan territory.

IV. Bilateral policy

Mention has already been made of South Africa's involvement in the resolution of the crisis in Lesotho. This was a regional initiative undertaken with the blessing of SADC. South Africa has also attempted to intercede in other situations on a bilateral basis, with mixed results. In 1996, Raymond Suttner, then an ANC Member of Parliament and Chairperson of the Parliamentary Portfolio Committee on Foreign Affairs, identified the principal obstacle here as being the fact that, although South Africa may have decisive moral power in the world today, it has limited leverage. He argues that:

It does not dispense much aid. Yet it does have some leverage, greater or less in the particular case, in relation to some states. [Bilaterally], in relation to a relatively powerful state like Nigeria located some distance from South Africa's borders, its influence is less than in relation to a state like Swaziland and possibly also Zambia. It is still less in relation to a power like China, even if South Africa were to have diplomatic relations. 34

Since these words were written, experience has shown that South Africa's efforts to influence the cause of human rights in both Swaziland and Zambia have fared no better than in the case of Nigeria. Attempts to mediate between trade unions and other political groups agitating for democratization and human rights, on the one hand, and King Mswati of Swaziland and his government, on the other, have so far remained unsuccessful. Similarly, President Chiluba's government in Zambia was not impressed with South Africa's attempt to play a mediating role in the crisis sparked by what many viewed as an undemocratic decision by the Zambian government to bar former President Kenneth Kaunda from contesting elections for the presidency. 35 South Africa was accused of being partial and biased towards Kaunda, and therefore unsuited to the role of mediator. It is suggested that perhaps, here, as in the case of Swaziland, an SADC-led regional initiative might have proved more successful. It is obvious that South Africa's smaller neighbours are more likely to resist any attempt at unilateral initiatives by South Africa to intervene in their domestic affairs in the cause of human rights and democracy than they would be if such initiatives were undertaken as part of a regional, SADC-sponsored course of action. South Africa's comparative regional strength and its regional power status place it in a vantage position to promote human rights in the region. However, any perceptions of hegemonic aspirations in either bilateral or regional interactions with its neighbours are bound to arouse the kind of resistance witnessed in the reactions by both Swaziland and Zambia.

South Africa's ability to influence countries further afield than the SADC region is also extremely limited. Except for Nigeria and Kenya, it has very limited trading links with countries known to violate human rights in Africa, for example Sierra Leone, the Sudan, Chad, and Equatorial Guinea, to mention only a few cases. South Africa is also chiefly concerned with promoting trade and investment. Indeed, since 1994 it would seem that this concern, rather than human rights issues, has preoccupied its foreign policy agenda. The promotion of trade and investment is often in conflict with human rights concerns. This is clearly demonstrated in South Africa's relations with some Asian countries, in particular Indonesia. Known for its human rights abuses in East Timor, Indonesia remains a chief target for South Africa's investment portfolio. In June 1996, then President Mandela paid his first state visit to Indonesia (although it was his third visit to the country). Human rights advocates and activists criticized these new directions in South Africa's foreign policy. In response, Mandela is reported to have said that South Africa would not recoil from establishing ties with countries or regions in which human rights violations had allegedly occurred. 36 During this trip, Mandela also indicated that South Africa would remove Indonesia from the list of countries to which the sale of arms is prohibited. Such is the inconsistency that attends the foreign policy of a state that is not in a position to refuse trade from the major transgressors of human rights. Or, to put it another way, the contradiction embedded in the simultaneous pursuit of national interest and human rights. South Africa finds itself more in a relation of dependency on Asian countries than they are on it. In these relations the human-rights-based foreign policy is whittled down to Mandela simply imploring the leaders of these countries to "start thinking of behaving." 37

A somewhat interesting postscript to the controversy over the Indonesian visit must be recorded, however. Shortly after his return to South Africa, it was revealed that, while in Indonesia, President Mandela had in fact requested, and been granted, a meeting with the jailed East Timorese leader, Xanana Gusmao. This extraordinary meeting took place at a state guest-house on 15 July 1997, with President Suharto's blessing. And, within a week of this revelation, Jose Ramos-Horta, exiled leader of the East Timorese resistance movement and joint winner of the 1996 Nobel Peace Prize, was in South Africa to hold talks with President Mandela on East Timor on 25 July. This visit was followed five days later by that of the Portuguese President Jorge Sampaio, whom Mandela had apparently already drawn into these consultations. 38 Some four months later, President Suharto paid an official visit to South Africa. At the conclusion of the visit, Mandela announced that he had made a breakthrough in his search for a lasting solution to the East Timor question. The details of this apparent breakthrough have, however, never been made public. 39 Talks between President Mandela and the Indonesian authorities seem to have continued behind the scenes in the ensuing period. Although very little is known about the substance of these talks, it is just possible that this could turn out to be the one instance of South Africa's "quiet diplomacy" that may well confound the sceptics and Mandela's critics.

South Africa's relations with Cuba, Libya, and Iran provide an insight into the importance of historical factors that negate a blanket condemnation and ostracization of all human rights abusers. These countries supported the liberation movement, hence the reluctance to implement or support sanctions against them for their human rights violations. South Africa did not bow to pressure from the United States to implement sanctions against Cuba and voted against two US-sponsored resolutions at the United Nations: one on the blockade against Cuba, and the other a motion seeking an investigation into alleged human rights violations in Cuba. The Cuba question has been a highly charged one in political debates in South Africa, and one that has sorely tested the political resolve of the South African government in the face of virulent and relentless criticism both from the United States government and from the local anti-communist lobby in South Africa. This is not the place to explore the complex political considerations that underlie this question. Suffice it to note that, on the face of it, South Africa's relations with Cuba seem to contradict the previously declared guiding principles of its foreign policy. As various commentators on both sides of the political divide have been quick to concede, the value of these relations is to be measured not in material benefits but in the historical and ideological relationship that exists between the Castro regime and the liberation movement in South Africa. Here, the ANC-led government is more concerned to show appreciation for the assistance given to it by Cuba than to remain faithful to its professed objective of pursuing a foreign policy based on the twin imperatives of human rights protection and democracy. 40

Precisely the same kind of considerations arise in respect of South Africa's support for the lifting of the sanctions imposed on Libya for its suspected role in the Lockerbie air disaster. Similarly, Iran remains a friend of South Africa, despite the criticism voiced in some quarters in the West against the close diplomatic ties between the two countries. As was noted at the outset of this discussion, South Africa has openly acknowledged the existence of differences of opinion on human rights issues between the two countries, but this did not prevent President Mandela from defending these ties and declaring that the enemies of the West are not necessarily South Africa's enemies. Indeed, this is a refrain that has been repeated on a number of occasions whenever criticism has been raised by some Western governments against the initiation or maintenance of bilateral diplomatic or trade relations with countries designated as human rights abusers, such as Cuba, Libya, Iran, and Iraq. 41

From the foregoing, it is possible to discern at least three overarching principles that underpin South Africa's bilateral foreign policy. First, there is the principle of sovereignty and protection of the national interest: here, South Africa insists on choosing its own friends and pursuing any bilateral relations that will best advance its national interest. Thus, relations with Iran are partly driven by the need to secure favourable trading terms for its importation of oil and petroleum products from this Middle Eastern country. 42 Second, there is the principle of reciprocity: as indicated above, South Africa under the ANC-led government feels duty bound to reciprocate the assistance accorded to it by certain countries or regimes during the long years of the liberation struggle. Bilateral relations with Cuba and Libya are routinely defended on this ground. Third, there is the principle of equal treatment and universality. South Africa has argued that, because of its professed stance of non-alignment, it will maintain bilateral relations with all states, irrespective of their political, ideological, or religious orientation, as long as such relations fall within the overall framework of its foreign policy objectives. What all this implies is that one, or a combination, of these principles can expediently be used to explain away the awkward cases where South Africa finds itself dealing with countries whose human rights and democratic credentials may be found wanting by both international as well as its own domestic standards.

In the area of arms control we once again note the ambiguities of South Africa's foreign policy. In the first place, decisions were taken to accede to the Treaty on the Non-Proliferation of Nuclear Weapons and to sign the African Nuclear-Weapon-Free-Zone Treaty (the Pelindaba Treaty). At the time of writing, South Africa is one of only 11 countries to have ratified the latter treaty; it deposited the instrument of ratification with the OAU Secretary General on 27 March 1998. Secondly, there followed the restructuring of state-owned arms manufacturer Armscor, apparently heralding an attempt to make domestic changes in the arms manufacturing industry in order to foster the principles of human rights abroad. The Cameron Commission, appointed to investigate the structure, practice, and policies of Armscor, tabled its report in July 1995. 43 Many of the recommendations of this commission were taken up in the restructuring of the parastatal company. Among these was the call to respect the arms embargo drawn up by the United Nations, thereby ending South Africa's covert sales of arms. Armscor was also enjoined to uphold transparency and to embrace social values that incorporate the promotion of democracy, human rights, and international peace and security. The Cameron Commission noted: "The new criteria for [determining] which categories of weapons may be exported, and to which countries, should be based above all on South Africa's commitment to democracy, human rights and international peace and security." 44 Cock notes that, in the 1995 classification of arms client countries, a complete ban was placed on arms exports to 31 countries where instability or human rights violations meant that those arms might be put to illegitimate use. 45 Included in this category were Lesotho, Rwanda, the Lebanese Christian militia, and Nigeria. Another nine countries could receive only "non-lethal equipment" (for example, Angola and Mozambique), and lighter restrictions were placed on 15 more countries (for example, India and Pakistan). These restrictions were said to be even stricter than those of the United Kingdom. 46

The question may still be posed, and Cock indeed poses it: 47 do the manufacturing and sale of arms not inherently contradict the promotion of human rights, international peace, and security, even if one screens one's clients? Violence, irrespective of the ends to which it is put, violates the most basic of human rights, namely the right to life. There is also no guarantee that those not currently on the embargo list will not at a later stage use the arms they acquire against their own populace, for example in the event of civil strife. It is also doubtful whether the arguments that are usually proffered, that the sale of arms abroad is necessary for the country's own security, and that it is a means by which to generate national wealth, can be supported at any cost to human rights considerations.

South Africa has already back-tracked on some of its earlier restrictions. A few months after it issued the list of clients for arms sales, it decided to resort to a case-by-case formula for deciding on prospective clients. It is this mechanism that allows the country to contemplate, and even defend, the exportation of arms to such countries as Indonesia, Syria, Rwanda, and Turkey despite the continuing violations of human rights in these countries and the real likelihood that some of these countries may use those arms to violate the human rights of their own citizens. South Africa's recent arms trade dealings with Algeria provide an instructive example.

As was noted above, South Africa chaired the 1998 session of the UN Human Rights Commission. The question of human rights abuses in Algeria was reportedly addressed during this session, by way of a statement from the chair. 48 It is interesting to note that South Africa had, prior to assuming the chairmanship of the Human Rights Commission, already issued a statement, on 28 January 1998, condemning "in the strongest terms acts of senseless violence," and affirming its support for the Algerian government "[to] help ensure that the current, systematic genocide of Algerian people is brought to an end." Significantly, this statement was issued only a day after South Africa and Algeria had reportedly concluded a deal relating to the latter's purchase of remote-piloted surveillance aircraft. 49 Despite these developments, it is generally agreed that South Africa was able to speak with an impartial and objective voice on the human rights situation in Algeria during its tenure as chair of the Human Rights Commission.

Perhaps the unstated cynical response in all these cases is simply that, if South Africa does not sell arms to these countries, somebody else will. Alas, this is a familiar response that even the so-called older democracies have invoked to justify controversial bilateral relations — whether in terms of diplomatic intercourse, trade, or arms sales — with some of the worst human rights offenders in the world today. The contradictory stances that some Western countries have tended to adopt in their dealings with the People's Republic of China, especially in the immediate aftermath of the Tiananmen Square massacre, bear witness to this.

V. Concluding observations

It is obvious that high expectations have been placed on the post-apartheid government in South Africa to lead the way in championing respect for, and protection of, human rights, especially on the African continent. As noted earlier in this discussion, this is only to be expected. The 1996 Constitution, which underpins the new political and legal order, is predicated on respect for three fundamental values: equality, freedom, and human dignity. Indeed, these provide the foundational principles of the post-apartheid order. These values are also basic to any project aimed at realizing and protecting human rights in any society.

The reason for adopting an approach that was friendly to international human rights law in the new constitutional scheme in South Africa is not too hard to find. The apartheid order in South Africa represented a negation of some of the most fundamental principles of international law: self-determination, equality, non-discrimination, and so on. During this era, South Africa was also a major violator of human rights and refused to subject itself to either constitutional or international law restraints in the field of human rights. It is a commonplace that apartheid South Africa developed a remarkable degree of antipathy towards — if not an outright disdain for — international law and the international community, especially the international human rights movement. It goes without saying that any meaningful transition to a new democratic order in the country was one that required a commitment to the acceptance of the need to protect human rights by both national and international mechanisms. The entrenchment of a justiciable bill of rights and the explicit incorporation of international law into South African municipal law represent an obvious acknowledgement of this need.

The post-apartheid government has also moved fairly quickly to sign all the major human rights treaties. Among these are the two International Covenants of 1966, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the African Charter on Human and Peoples' Rights, the UN Convention Relating to the Status of Refugees, and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. A list of these treaties is given in the appendix to this chapter. This is a radical departure from the apartheid regime's policy, which refused to append its signature to any of these treaties.

There can be no doubt that, domestically, post-apartheid South Africa has laid down a firm foundation for the protection and promotion of all the internationally recognized fundamental human rights. But, most importantly, the constitution incorporates international law, including international human rights law, into the domestic legal system. The challenge for the South African government lies in both its willingness and its ability to translate these lofty constitutional ideals and values into practice. In the realm of foreign relations, the challenge is to ensure that the domestic commitment to human rights also informs all aspects of foreign policy formulation and implementation. One way of achieving this would be to adopt legislation that introduces human rights principles into the government's own actions, including its conduct of foreign policy. The difficulties, dilemmas, challenges, and, at times, inconsistencies that attend this process have been noted in this discussion. On the whole, however, it is fair to conclude that South Africa's efforts at incorporating human rights considerations in the design and conduct of its foreign affairs represent honest attempts at walking the tightrope between safeguarding national interests at home and fighting to ensure respect for human rights abroad. In this endeavour, South Africa has not fared any better or any worse than some of the older democracies in the West.

Appendix: Human rights treaties to which South Africa is a party (through signature, accession, or ratification)

Slavery Convention (1926)

Convention for the Suppression of the Traffic in Women and Children (1921)

Convention for the Suppression of Traffic in Persons and Exploitation of the Prostitution of Others (1950)

Convention for the Suppression of the Traffic in Women of Full Age (1933)

Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children of 1921 and the Convention for the Suppression of the Traffic in Women of Full Age of 1933 (1947)

Geneva Conventions (I, II, III, IV) (1949)

Final Protocol to the Convention for the Suppression of Traffic in Persons and Exploitation of the Prostitution of Others

International Agreement for the Suppression of the White Slave Traffic (1904)

Protocol Amending the International Agreement for the Suppression of White Slave Traffic of 1910 (1949)

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962)

Convention on the Rights of the Child (1989)

Freedom of Association and Protection of the Right to Organize Convention (1948)

Right to Organize and Collective Bargaining Convention (1949)

Convention on the Elimination of All Forms of Discrimination Against Women (1979)

Protocol Additional to the Geneva Convention of 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977)

Protocol Additional to the Geneva Convention of 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977)

Convention Relating to the Status of Refugees (1951)

Protocol Relating to the Status of Refugees (1967)

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)

Convention on the Political Rights of Women (1953)

Convention on the Nationality of Married Women (1957)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

International Covenant on the Elimination of All Forms of Racial Discrimination (1966)

African Charter on Human and Peoples' Rights (1981)

Endnotes

Note 1: These exchanges, held on a regular weekly basis during parliamentary sittings, are formally known as "Interpellations, Questions and Replies." They provide Members of Parliament with the opportunity to pose questions to ministers for immediate, brief responses outside the normal debating sessions.  Back.

Note 2: Interpellations, Questions and Replies of the National Assembly, First Sess., Second Parl., No. 1, 12 February — 13 March, 1997, col. 132.  Back.

Note 3: Ibid., col. 133.  Back.

Note 4: Ibid., col. 133 (emphasis added).  Back.

Note 5: Ibid., col. 133.  Back.

Note 6: President Mandela is reported to have responded to his critics thus: "[South Africa] will not avoid ties with regions where human rights abuses were reported" (The Star, Johannesburg, 6 March 1997).  Back.

Note 7: See Mail & Guardian (Johannesburg), 9-15 May 1997, p. 4.  Back.

Note 8: The terms "West" and "Western," as they are used in this discussion, refer to the unexamined conglomerate of the United States of America, Europe, and assorted off-shoots that claim a shared tradition of political pluralism defined in terms of regular multi-party democratic elections and the observance of the rule of law.  Back.

Note 9: R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 61. See also W. Korey, The Promises We Keep: Human Rights, the Helsinki Process, and American Foreign Policy (New York: St. Martin's, 1993).  Back.

Note 10: See discussion by H. Arnold, "Henry Kissinger and Foreign Policy," Universal Human Rights 2 (1980), 57. On the view that during the Cold War the United States undermined a number of elected governments and engaged in other anti-humanitarian interventions in order to increase its power vis-à-vis the Soviet Union, see chapter 2 in this volume; see also D. P. Forsythe, "Democracy, War, and Covert Action," Journal of Peace Research 29/4 (1992), 385-395.  Back.

Note 11: Arnold, "Henry Kissinger," op. cit., 62—63; see also Vincent, Human Rights, op. cit.  Back.

Note 12: R. Mullerson, Human Rights Diplomacy (London: Routledge, 1997), 3.  Back.

Note 13: R. Henwood, "South Africa's Foreign Policy: Principles and Problems," in H. Solomon, ed., Fairy Godmother, Hegemon or Partner? In Search of a South African Foreign Policy (Pretoria: Institute for Security Studies, 1997), 16.  Back.

Note 14: Department of Foreign Affairs, South African Foreign Policy Discussion Document (Pretoria: Department of Foreign Affairs, 1996); see discussion by G. Mills, "Leaning All over the Place? The Not-so-new South Africa's Foreign Policy," in Solomon, Fairy Godmother, op. cit., 22-24.  Back.

Note 15: N. Mandela, "South African Foreign Policy," Foreign Affairs 73 (1993), 87.  Back.

Note 16: See V. Shubin, Flinging the Doors Open: Foreign Policy of the New South Africa, Southern African Perspectives, No. 43 (Belville: Centre for Southern African Studies, University of the Western Cape, 1995), 8.  Back.

Note 17: Republic of South Africa, Debates of Parliament (Hansard) (National Assembly), 27 May 1994, col. 216.  Back.

Note 18: Ibid., 8 August 1994, col. 915  Back.

Note 19: Department of Foreign Affairs, Proceedings of Foreign Policy Workshop, Randburg, South Africa, 9-10 September, 1996, pp. 8-9.  Back.

Note 20: Mills, "Leaning All over the Place?", op. cit., 19.  Back.

Note 21: See, for example, J. Klaaren, "Human Rights Legislation for a New South Africa's Foreign Policy," South African Journal on Human Rights 10 (1994), 260.  Back.

Note 22: See, for example, statement by Deputy Minister of Foreign Affairs Aziz Pahad, "South Africa and Preventive Diplomacy," South African Media Circulation (Pretoria), 13 July 1995. See also, Department of Foreign Affairs, Policy Guidelines by the Minister and Deputy Minister of Foreign Affairs (Pretoria: Department of Foreign Affairs, 1995).  Back.

Note 23: V. Seymour, Global Dialogue, Human Rights and Foreign Policy: Will South Africa Please Lead, Southern African Perspectives, No. 55 (Belville: Centre for Southern African Studies, University of the Western Cape, 1997), 18.  Back.

Note 24: For a more extended discussion of this, see T. Maluwa, "International Human Rights Norms and the South African Interim Constitution 1993," South African Yearbook of International Law 19 (1993/94), 14.  Back.

Note 25: See, especially, the references to international law in Sections 39, 231, 232, and 233.  Back.

Note 26: See Human Rights Watch (Africa), "Recommendations to the Truth and Reconciliation Commission" (New York: Human Rights Watch, January 1998). In this report, Human Rights Watch makes the categorical observation that "[the] new government of South Africa is still responsible for serious abuse of human rights, largely but not only because of the legacy of the past. Torture of criminal suspects by police continues, even without the active support of the political authorities, as do deaths in detention and summary executions." This is a rather hyperbolic charge that is not supported by any specific evidence anywhere in the report itself, other than the single reference to the death, after spending some hours in police detention, of a Burundian asylum seeker in Cape Town in June 1997 (p. 23). For a general account relating to the alleged abuse of undocumented migrants, asylum seekers, and refugees, see Human Rights Watch, "Prohibited Persons": Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York: Human Rights Watch, 1998).  Back.

Note 27: Thus, for example, South Africa's unilateral attempt to impose sanctions against General Abacha's regime in Nigeria following the execution of Ken Saro-Wiwa and his fellow human rights activists in 1995 was not widely supported within either the Commonwealth or the Organization of African Unity. Indeed, some African leaders, including the Secretary General of the Organization of African Unity, publicly criticized then President Mandela for his government's position on the matter. See Mail & Guardian (Johannesburg), 17-23 November 1995.  Back.

Note 28: Department of Foreign Affairs, Communique on SADC Organ, Pretoria, 28 June 1996.  Back.

Note 29: The original proposal for the establishment of an SADC human rights commission or court has been replaced by a proposal to establish an SADC Tribunal, with a wider jurisdiction going beyond human rights issues per se. The new proposal, which was examined and adopted by a meeting of government legal experts in Lusaka, Zambia, 14-15 August 1997, was subsequently submitted to a meeting of the SADC Council of Ministers held in Port Louis, Mauritius, in September 1998. However, to date, no final decision has been taken on the actual establishment of the proposed tribunal.  Back.

Note 30: See z (Cape Town), 9 July 1996.  Back.

Note 31: The draft Protocol was first examined by a meeting of government legal experts convened by the Secretary General of the OAU, in collaboration with the government of the Republic of South Africa and the International Commission of Jurists, in Cape Town, South Africa, from 6 to 12 September 1995. The final version of the draft Protocol was presented to the OAU Council of Ministers for consideration and adoption during the Council's 67th Ordinary Session. See Report of the OAU Secretary General on the Draft Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, Council of Ministers, Sixty-seventh Ordinary Session, 23-27 February 1998, CM/2051 (LXVII).  Back.

Note 32: President Mandela's speech to the UN General Assembly, 3 October 1993. See excerpts in The Argus (Cape Town), 4 October 1994.  Back.

Note 33: Seymour, Global Dialogue, op. cit., 20.  Back.

Note 34: R. Suttner, "South African Foreign Policy and the Promotion of Human Rights," in Proceedings of Workshop: Through a Glass Darkly? Human Rights Promotion in South Africa's Foreign Policy (Braamfontein: Foundation for Global Dialogue, 1996), 17  Back.

Note 35: The crisis in Zambia arose when President Chiluba's government forced through a controversial constitutional amendment barring any Zambian national one or both of whose parents were not born in Zambia from standing for the presidency. This was generally seen as a ploy to prevent the former president, Kenneth Kaunda, whose parents were of Malawian origin, from making a political comeback and standing for presidential elections  Back.

Note 36: See note 6 above.  Back.

Note 37: Ibid.  Back.

Note 38: The Argus (Cape Town), 30 July 1997.  Back.

Note 39: President Mandela's last public statement on the matter was in the course of a press conference convened after President Suharto's visit to South Africa in November 1997, when he simply declared that he would not reveal the results of his discussions with the Indonesian ruler until he had formally briefed the UN Secretary-General.  Back.

Note 40: Henwood, "South Africa's Foreign Policy," op. cit., 12; see also R. Suttner, Some Problematic Questions in Developing Foreign Policy after April 27 1994, Southern African Perspectives, No. 44 (Belville: Centre for Southern African Studies, University of the Western Cape, 1995), 11-14  Back.

Note 41: Henwood, "South Africa's Foreign Policy," op. cit., 13. Then President Mandela reiterated this position even more forcefully at a press conference held in Cape Town on 27 March 1998 during US President Bill Clinton's visit to South Africa.  Back.

Note 42: R. Henwood, "South Africa's Foreign Policy and International Practice — 1994/95 — An Analysis," South African Yearbook of International Law 20 (1994/95), 283.  Back.

Note 43: Cameron Commission of Inquiry into Alleged Arms Transaction between Armscor and One Eli Wazan and Other Related Matters, First Report, Johannesburg, 15 June 1995.  Back.

Note 44: Ibid., 131.  Back.

Note 45: J. Cock, "Arms Trade, Human Rights and Foreign Policy," in Proceedings of Workshop: Through a Glass Darkly? Human Rights Promotion in South Africa's Foreign Policy (Braamfontein: Foundation for Global Dialogue, 1996), 28.  Back.

Note 46: See Mail & Guardian (Johannesburg), 28 July—3 August 1995.  Back.

Note 47: Cock, "Arms Trade," op. cit., note 45.  Back.

Note 48: Personal communication from Mr. Ahmed Motala of Amnesty International, London, United Kingdom, 28 February 1998.  Back.

Note 49: Reuters/AFP, Pretoria, South Africa, 28 January 1998.  Back.