THE COMMISSION OF INQUIRY INTO KANGWANE (THE RUMPFF COMMISSION)

Contents: INTEREST OF AMICUS CURIA • STATEMENT OF FACTS AND LEGAL ISSUES FOR CONSIDERATION • ARGUMENT: • I. ANY AGREEMENT OF CESSION BETWEEN SOUTH AFRICA AND SWAZILAND WILL BE VOID IF IT VIOLATES THE RIGHTS TO SELF-DETERMINATION AND RACIAL NON-DISCRIMINATION • II. SOUTH AFRICA'S PROPOSED CESSION OF KANGWANE TO SWAZILAND WILL VIOLATE THE SOUTH AFRICAN PEOPLE'S RIGHT TO SELF-DETERMINATION • A. The South African Government Is Obliged to Respect the Rights of Self-Determination Which Vests in All the People of South Africa • 1. Self-Determination Is A Right Of The People Of South Africa That The South African Government Must Respect • 2. The Fact of South African National Independence From Great Britain Does Not Satisfy The Right To Self-Determination Of The Majority Of The South African People Or Extinguish The South African Government's Continuing Obligation To Respect That Right • B. This Right Of Self-Determination Of The People Of South Africa Includes The Right Of All South Africans To Participate Effectively In All Decisions Relating To Territorial Separations • 1. International Law Requires That All South Africans, Not Merely The Whites Or Swazi-Speaking South Africans, Participate In Decisions Relating To Territorial Separations • 2. The Requirement That All South Africans Participate In Such Decisions Does Not Minimize The Need For Consultation With The People Of KaNgwane • C. The Cession As Proposed Will Constitute A Violation of the Right of Self-Determination of the South African People Sufficient to Render Any Such Agreement Void Under International Law • III. THE DENATIONALIZATION OF ALL SWAZI-SPEAKING SOUTH AFRICANS AS A COMPONENT OF THE CESSION OF KANGWANE TO SWAZILAND WILL CONSTITUTE AN ACT OF RACIAL DISCRIMINATION WHICH VIOLATES INTERNATIONAL LAW • A. South Africa Has An Obligation Under International Law To Avoid Any Act Which Violates The Jus Cogens of Racial Non-Discrimination • B. The Denationalization Plan Envisioned As A Component Of The Cession Of KaNgwane To Swaziland Is Racially Discriminatory In Intent And Effect • IV. THE COMPULSORY IMPOSITION OF SWAZI NATIONALITY ON ALL SWAZI-SPEAKING SOUTH AFRICANS WILL VIOLATE THEIR RIGHT OF SELF-DETERMINATION • A. The Right of Self-Determination Has Modified The Traditional Rule That The Nationality Of The Acquiring State Automatically Devolves On Residents Of Ceded Territory • B. Swazi Nationality Cannot Be Imposed On Those Swazi-Speaking South Africans Who Are Non-Residents Of The Ceded Territory • V. A VOID TREATY OF CESSION AND THE VIOLATION OF THE JUS COGENS OF SELF-DETERMINATION AND RACIAL NON-DISCRIMINATION WILL TRIGGER AN AFFIRMATIVE OBLIGATION ON THIRD STATES TO WITHHOLD RECOGNITION OF THE VALIDITY OF THE CONSEQUENCES OF THE PURPORTED CESSION AND DENATIONALIZATIONS • CONCLUSION • Brief of the Lawyers' Committee For Civil Rights Under Law, United States Of America as Amicus Curiae. The brief says the legal issues involved in the matter of the proposed cession of KaNgwane to Swaziland are predicated Upon both the factual circumstances and attendant legal issues of South Africa's policy of separate development, which is at the core of the apartheid system. The brief says official South African government policy has the entire black population allocated to ten tribal homelands (bantustans)--a total area of 14 percent of South Africa's land--despite the fact that the vast majority do not live there and have expressed no desire to be identified with those territories; under the terms of the Bantu Homelands Citizenship Act (now the National States Citizenship Act), every African was designated a citizen of a "homeland" on the basis of language, birth, or cultural affiliation; the identity document which all Blacks are required to carry is marked with the person's official tribal classification, homeland citizenship, personal records, and fingerprints; "Pass laws" restrict Blacks to the homelands except for those needed for work in the non-homeland areas that are generally designated as "white" areas. The brief says the bantustans, where the population density is approximately 120 per square mile, are not economically viable; yet, the government policy is to separate by law the bantustans from South Africa by declaring them ''independent" countries; the purpose of the establishment of the bantustans was explained in 1978 by the South African Minister of Bantu Administration. The brief says to date, four bantustans--Transkei, Bophuthatswana, Venda, and the Ciskei--have become "independent." The brief says they now have a president, parliament, flag, even a diplomatic service. However, no nation but South Africa has recognized this purported accession to statehood; the practical meaning of this "independence" is that nearly 8 million Africans are declared by the South African government to have lost their South African citizenship and nationality. The brief says attorneys for KaNgwane filed an application in the Supreme Court of South Africa Transvaal Provincial Division contesting the validity of the proclamation. The brief says the issue of whether KaNgwane should be ceded to Swaziland was referred to a high-level governmental commission chaired by the Honorable. F.L.H. Rumpff, former Chief Justice of the Appellate Division of the South African Supreme Court. The brief says this memorandum for presentation to the Rumpff Commission will consider the validity under international law of the proposed cession to Swaziland. The brief discusses the National States Constitution Act, Department of Cooperation and Development (Bantu Administration), treaty obligations, the United Nations Charter, the International Court of Justice (ICJ, World Court), the Western Sahara Advisory Opinion, the Namibia Advisory Opinion, Declaration on the Granting of Independence to Colonial Countries and Peoples (The Decolonization Declaration), the International Law Commission, human dignity, the South African Minister of Cooperation and Development, Declaration Against Racial Discrimination, the Universal Declaration of Human Rights, apartheid, and the Promotion of Black Self-Government Act.