§1 Chapter 2 SUBJECTS OF INTERNATIONAL LAW Namibia States-International Status, Attributes, On September 9, 1980, the Subcommittee on Africa of the House Committee on Foreign Affairs held a hearing on the current situation in Namibia and the efforts of the five-member Western Contact Group (Canada, France, the Federal Republic of Germany, the United Kindgom, and the United States) and the United Nations Secretary General to find a basis for a solution to the Namibian problem that would be acceptable to South Africa, the parties within Namibia, the South West African People's Organization (SWAPO), and the "Front-Line States" (Angola, Botswana, Mozambique, Tanzania, and Zambia). A statement prepared for the Subcommittee by Ambassador Donald F. McHenry, United States Permanent Representative to the United Nations, follows, in part: I last addressed the Subcommittee on the question of Namibia, also known as South-West Africa, on May 7, 1979. At that time I described in some detail the history of the Namibia dispute. I also described the decision in April 1977, by the then five Western members of the U.N. Security Council-Canada, France, the Federal Republic of Germany, the United Kingdom, and the United States ["the Five"]-to jointly launch an unprecedented effort to find an internationally acceptable solution to the Namibian problem, based on the set of principles unanimously adopted by the U.N. Security Council in Resolution 385 in January 1976...I explained the proposal for a settlement which the Five placed before the U.N. Security Council on April 10, 1978. That proposal includes among its key elements: • The holding of free and fair elections for a constituent assembly leading to independence; • The cessation of all hostile acts by all parties; • The restriction of South African and SWAPO armed forces to base and the subsequent phased withdrawal from Namibia of all South African troops-that withdrawal to be completed one week after the certification of the elections; The administration of the territory during the transitional period leading to the elections by a South African-appointed Administrator General, with all acts affecting the political process under the supervision and control of a U.N. Special Representative appointed by the Secretary General of the United Nations. The introduction of a U.N. civilian and military presence to insure the observance of the terms of the settlement; • The release of all Namibian political prisoners and detainees; • The return of exiles; and The establishment of conditions for free and fair elections, including freedom of speech, movement, press, assembly, and the repeal of discriminatory or restrictive legislation. When I last addressed the subcommittee on this subject, I indicated that both South Africa and SWAPO had agreed to the Five's settlement proposal but that South Africa had not agreed to the U.N. Secretary General's plans for implementation of the proposal-plans which the Five regarded as consistent with the original proposal which South Africa had accepted. SWAPO, on the other hand, had indicated its acceptance of the Secretary General's implementation plans and its readiness to move ahead with that implementation. Recent Developments In May of 1979 South Africa raised two principal objections to the Secretary General's plans for implementation. The one which then seemed to be South Africa's primary objection concerned the Secretary General's proposal that any SWAPO armed personnel inside Namibia at the start of the cease-fire would be restricted and monitored by the United Nations at designated locations inside Namibia. South Africa objected to this proposal on the grounds that it would provide SWAPO with bases inside Namibia. The Five supported the Secretary General's proposal as a sensible way of dealing with the practical problem of monitoring those SWAPO armed personnel inside Namibia at the time of the cease-fire. The question became moot when the Front-Line States, in the interest of advancing the settlement effort, prevailed upon SWAPO to agree that upon South Africa's acceptance of implementation of the settlement plan, SWAPO would no longer insist on such designated locations. Those SWAPO armed personnel inside the territory at the start of the cease-fire would, therefore, be given the choice either of turning over their arms to the United Nations and participating peacefully in the electoral process or of being granted safe passage out of the territory. The second South African objection concerned South Africa's insistence on the monitoring by the United Nations of SWAPO bases outside Namibia. South Africa maintained this insistence despite the fact that the Five's proposal, which South Africa had previously accepted, made no such provision. In the view of the Five, this factor had been adequately taken into account in determining the size and composition of the proposed U.N. presence during the transitional period. Moreover, the Front-Line States had committed themselves to insuring the scrupulous observance of the cease-fire, an assurance which the Five had every reason to regard as genuine. Nevertheless, in an effort to overcome this South African objection, the late President Neto of Angola proposed a compromise: the establishment of a demilitarized zone 50 kilometers on either side of Namibia's northern border with Angola and Zambia. Under this compromise, the U.N. forces would not only monitor the border from the Namibia side, as envisioned in the Five's original proposal, but also would be permitted to operate on the Angolan and Zambian sides of the border within the demilitarized zone. Both the South African Government and the Governments of Angola and Zambia would be permitted to retain certain forces within the 100-kilometer-wide zone at designated locations. No SWAPO forces would be permitted in the demilitarized zone. The South African forces would still be withdrawn from their side of the demilitarized zone 12 weeks after the cease-fire, in accordance with the provisions of the Five's proposal. In a letter to Secretary General Waldheim dated May 12, 1980, the South African Government stated that it had studied and evaluated the feasibility of the demilitarized zone. Among other things, South Africa in its letter asked that it be allowed to retain its forces at 20 designated locations within the demilitarized zone, about three times the number envisioned in President Neto's original proposal. Despite the fact that such a large number of locations was never envisioned, the Front-Line States, meeting in Lusaka, Zambia, on June 2, once again prevailed upon SWAPO to accept the South African insistence on 20 locations in the hope that this would lead to a final settlement. Angola and Zambia further agreed that their forces would have only seven such locations on their territories within the demilitarized zone. These agreements were conveyed by Front-Line and SWAPO representatives to Secretary General Waldheim, who in turn conveyed them to the South African Government in a letter dated June 20, 1980. In his letter, the Secretary General expressed his hope that the forthcoming positions taken by the Front-Line and SWAPO in order to meet South Africa's remaining reservations about the demilitarized zone concept would now permit South Africa's early agreement to implementation of the settlement plan. On August 29, South Africa sent a further letter to Secretary General Waldheim, replying to the Secretary General's letter of June 20. In its letter, South Africa sets forth a number of interpretations and assumptions about aspects of the settlement proposal and the demilitarized zone concept. It goes on to state that if these interpretations and assumptions are accepted, South Africa would be prepared to proceed with discussions on the implementation of the settlement plan. If there is a genuine issue buried within the rhetoric of the South African letter, it is the issue of the impartial implementation of the U.N. settlement plan. In this connection, South Africa has charged that the U.N. General Assembly's designation of SWAPO as "the sole and authentic representative of the Namibian people" raises questions as to the ability of the United Nations to supervise impartially the elections in Namibia, and South Africa has called on the United Nations to exhibit complete impartiality henceforth. There are several comments which should be made here. First, as South Africa is aware, the settlement plan for Namibia would be carried out by the Secretary General under the authority of the Security Council, not the General Assembly. The Security Council has never adopted or endorsed the disposition of the General Assembly to regard SWAPO as the sole representative of the Namibian people. On the contrary, Security Council Resolutions 385 and 435, on which the U.N. settlement plan is based, fully endorse the principle that the leadership of the territory must be determined through free and fair elections in which all political parties, including SWAPO, will be placed on an equal footing. Finally, it should be noted that significant elements of the Namibian people, including political parties and the Namibian Council of Churches-whose member churches comprise among their congregations more than half of the territory's adult populationsupport prompt implementation of the settlement plan. Second, the United Nations has over the years established an excellent record for impartial peacekeeping operations in even the most difficult and demanding circumstances. . . . With regard to the Namibian settlement plan, the Secretary General of the United Nations has repeatedly and publicly given South Africa assurances of his complete impartiality and that of his U.N. staff in the implementation of the plan, most recently in his letter of June 20. In that letter, as on previous occasions, the Secretary General stated that the requirement of impartiality is one that applies to all parties to the settlement, and he has called upon South Africa to give a reciprocal assurance of its own impartiality in the implementation of the settlement plan. Third, as in any negotiation, each side in the Namibia dispute has taken positions with a view to maximizing their bargaining leverage with the other. These positions will inevitably be altered once a final agreement is reached and implementation of the settlement plan begins. . . . The task that confronts the Five and the Secretary General is to bring both sides to final agreement and to begin the implementation of the settlement plan, in which case most of the reservations currently voiced by both sides will become moot. For their part, the Five have made clear that their efforts to insure a fair settlement in Namibia will not cease once implementation begins. We will remain ready to do all in our power to insure that the provisions of the plan will be scrupulously adhered to, not least those which provide for the fair and equal treatment of all parties in the electoral process. Let me say that we fully intend to pursue the major task before us, which is to complete the work and fulfill the promise of 3%1⁄2 years of arduous negotiation in order to bring about an internationally acceptable settlement in Namibia. We will, therefore, focus our attention in the days ahead on those substantive aspects of South Africa's position which must be addressed if a settlement is to be achieved. We are confident that the other parties involved, including the Secretary General, are prepared to proceed with the same determination and seriousness of purpose. Need for Agreement In this regard, let me say that, despite the 31⁄2 years which have been spent already on this settlement effort, there is urgency to it. The situation inside Namibia is constantly changing, and those changes threaten to unravel the agreements which have already been reached. The most significant action inside Namibia has been South Africa's creation of a so-called Council of Ministers, composed entirely of members of the Democratic Turnhalle Alliance, the party which won the South African-supervised elections of December 1978. Those elections were boycotted by major internal political parties as well as by SWAPO and not recognized by the Five or by the international community. This Council of Ministers has been given considerable authority by South Africa, and the Government seems to be scaling down the visibility and scope of the Administrator General. In response to this action, the governments of the Five released a statement on July 11, making clear their refusal to recognize the Council of Ministers and their insistence that the South African Government must continue to be held fully accountable for the implementation of the U.N. settlement plan. [See, post.] The fighting along Namibia's northern border also increases, with losses to both SWAPO and South Africa ever growing and with South African raids into neighboring states becoming more frequent. * At present, the key to an internationally acceptable settlement in Namibia lies with the South African Government, and the Five must continue their efforts to convince South Africa that such a settlement is their best alternative. . . . Namibia Update: Hearing before the Subcomm. on Africa of the House Comm. on For. Aff., 96th Cong., 2d sess. (1980), pp. 3-9; Dept. of State Bulletin, Vol. 80, No. 2045, Dec. 1980, pp. 74-77; Press Release USUN-94(80), Sept. 9, 1980. The statement issued by the Governments of Canada, France, the Federal Republic of Germany, the United Kingdom, and the United States on July 11, 1980, follows: The Governments of Canada, France, the Federal Republic of Germany, the United Kingdom, and the United States continue to believe that implementation of the U.N. settlement plan and of Security Council Resolution 435 is the best available means of achieving an internationally acceptable settlement in Namibia. The five governments remain resolute in their efforts to achieve that goal. The governments of the Five are, therefore, concerned by the South African Government's establishment of a "Council of Ministers" in Namibia. Such action raises legitimate questions as to South Africa's intentions and complicates an already difficult settlement process. The governments of the Five do not recognize the "Council of Ministers," just as they do not recognize the "National Assembly" in Namibia, which was based on the internal elections of December 1978 which the governments of the Five regard as null and void. These developments do not alter the responsibility of the South African Government for the implementation of the U.N. settlement plan under the terms of Resolution 435. The five governments call on the South African Government to refrain from any action which could jeopardize the successful resolution of the negotiations. |