Towards the reconstruction of South Africa
Bibliographic Data
| ID | 4768633 |
|---|---|
| Authors | Albie Sachs (0000-0003-4813-0712, Ministry of Health, corresponding author) |
| Year | 1985 |
| Volume | 12 |
| Issue | 1 |
| Pages | 49-59 |
| Publication date | 1985-10-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | Journal of Southern African Studies (JOURNAL) |
| Journal identifiers | ISSN: 0305-7070 • E-ISSN: 1465-3893 |
| Publisher | Informa UK Limited (PUBLISHER • GB) |
| DOI | 10.1080/03057078508708109 |
| OpenAlex | W2072715232 |
| Language | EN |
| Citations received | 3 |
| References cited | 3 |
Legal truth, like all truth, arises out of the clash of opposites. At the heart of all debate on the legal characterisation of the apartheid state lies the opposition between two seemingly irreconcilable truths, namely that South Africa is an independent state, and that the eradication of apartheid represents the culmination of the struggle to free Africa from colonial domination. Put in terms of the internal situation in South Africa, a struggle essentially anti-colonial in origin and character is taking place in a country that has long ceased to be a colony. It is to this seemingly contradictory situation that international lawyers must address themselves. The central argument of this paper is that the debate as to whether a struggle of this nature should be characterised legally and politically as a national liberation struggle or a struggle for democracy or a struggle for -civil rights is a false one; that once the central issue of self-determination and the achievement of sovereignty by the South African people is grasped, the themes of national liberation, democracy and civil rights fall into pace. Much confusion has arisen over the question of South Africa's status because of failure to appreciate that the basic question is not one of recognition but of de-recognition. There can be no question that for many decades South Africa was recognised as an independent state. State practice and legal theory seemed in accord in this respect. All the criteria of recognition as an independent state appeared to be present. South Africa had a defined territory, a permanent population and a government exercising internal control, and was not legally subject to the external control of any other state. (See the Montevideo Convention, 1933, Art. 1.) Even those who might have argued that in addition to effective control the element of legitimacy should have been added, would have been satisfied that sovereignty had properly passed according to due constitutional and legislative process from Britain. How, then, is it possible to challenge South Africa's claim to be an independent state? The answer to this question must be found in the changed nature of the international legal order and the increased emphasis given to the principle of self-determination of peoples as the foundation of sovereignty. The domination of
Geography · Political science · Human Rights and Development · International Law and Human Rights · Legal Issues in South Africa
| Unique citing works | 3 |
|---|---|
| Citations per year | 0,08 |
| Citation span | 1988 - 2020 (33) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 2 |