United Nations General Assembly Resolution 1663 (XVI): The question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Republic of South Africa, 28th November 1961 (UN Doc A/RES/1663 (XVI)), OXIO 273
United Nations General Assembly [UNGA]; South Africa [za]
- Self-determination — Equality before the law — Ethnicity — Arms control — Countermeasures — Economic sanctions — Apartheid — Sovereignty — Acts of international organizations — Collective security — Practice and procedure of international organizations — Resolutions of international organizations — Erga omnes obligations — International peace and security
1. The ability of the United Nations General Assembly to adopt binding resolutions in the area of international peace and security.
2. The types of measures which can be authorized by the United Nations General Assembly.
3. The contribution of the United Nations General Assembly to the status of apartheid under international law.
United Nations General Assembly Resolution 1663 (XVI): The question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Republic of South Africa (‘Resolution’ or ‘Resolution 1663’) was adopted in response to the human rights violations occurring through the application of the apartheid regime in South Africa, and exemplified both the United Nations General Assembly’s (UNGA) ability to address matters of international security as well as its limited power in confronting such issues. Unlike the United Nations Security Council (UNSC), which may call upon members of the United Nations (UN) to apply measures aimed at enforcing its decisions regarding threats to international peace, Article 11 of the Charter of the United Nations (‘Charter’)—on the basis of which the Resolution was adopted—only allows the UNGA to hold discussions and make recommendations in relation to situations of concern, or to alert the UNSC to potential threats.
Apartheid in South Africa was a system of institutional racial discrimination against the non-white populations, sanctioned by the state. Following the election of the National Party in 1948, policies of racial segregation were reinforced through legislation extending to all aspects of life. Indian authorities, concerned with the treatment of their nationals in South Africa, initially raised the matter before the UN. The question of racial segregation in South Africa, which was first discussed by the UNGA in 1946 and remained a recurring item on its agenda for nearly half a century, was the object of the greatest number of resolutions to be adopted by the UNGA on one single issue.
The adoption of UNGA Resolution 917 (X) in 1955—which discussed the race conflict and reminded South Africa of its Charter-based obligation to cooperate with the UN in order to promote respect for human rights as well as the observance of the principle of non-discrimination—led to the temporary withdrawal of South Africa from the UNGA. For the South African government, and a number of other members of the UNGA, the question of apartheid was a domestic matter which was protected from international scrutiny by the principle enunciated in Article 2(7) of the Charter. The inscription of the question on the UNGA’s agenda was therefore contentious; yet, the UNSC, UNGA, and several UN agencies—such as the Special Committee Against Apartheid, which not only monitored the government’s policies and actions but also the transactions of foreign countries with South Africa and kept both main bodies of the organization apprised of developments—continued to address the issue.
Two draft resolutions—one of which would become Resolution 1663—were discussed during the 1067th plenary meeting, which, along with the fact that separate votes were held on specific paragraphs, was symptomatic of the divide among the members of the UNGA as to how to obtain compliance from the South African authorities with their human rights obligations. While the general sentiment was to condemn apartheid, one draft proposed a resolution similar to those previously adopted, while the other put forward resolute action including the expulsion of South Africa from the UN (Special Political Committee, ‘The Question of Race Conflict in South Africa Resulting from the Policies of Apartheid of the Government of the Republic of South Africa’). In expounding his country’s position, the representative of Senegal affirmed that the UNGA should expel South Africa as the International Labour Organization and the Commission for Technical Co-operation in Africa South of the Sahara had done. Ghana’s representative accused those who voted for the softer text of being influenced by economic, diplomatic, and military motivations for maintaining the minority white rule in South Africa. The South African representative challenged the UNGA’s authority to recommend punitive measures based on allegations which, in his view, did not amount to international friction or a danger to international peace and security. Invoking Article 2(7) of the Charter, he warned states that acting on that basis would constitute a violation of the Charter (Sixteenth Session of the General Assembly, 1067th plenary meeting, Official Records)
South African representatives were excluded from taking part in the work of the UNGA in 1974, and the country was only reintegrated in 1994 after the abolition of the apartheid regime.
Resolution 1663 recalled previous resolutions addressing apartheid in South Africa, including some which ‘declared that racial policies designed to perpetuate or increase discrimination are inconsistent with the Charter of the United Nations and with the pledges under Article 56 of the Charter’, and that ‘successively affirmed that the policy of racial segregation (apartheid) is necessarily based on doctrines of racial discrimination’. [ref 1 and ref 2] It also referred to a UNSC resolution which called on the South African government to abolish the apartheid regime and ‘recognized that the situation in South Africa was one that had led to international friction and, if continued, might endanger international peace and security’. [ref 3] In addition to noting South Africa’s defiance of previous resolutions, the Resolution ‘[s]trongly deprecate[d] the continued and total disregard by the [g]overnment of South Africa of its obligations under the Charter and furthermore its determined aggravation of racial issues by ever-increasing discriminatory laws and measures and their ruthless enforcement accompanied by violence and bloodshed’. [para 2] It further ‘[c]ondemn[ed] policies based on racial superiority as reprehensible and repugnant to human dignity’. [para 3] Moreover, the act called the attention of the UNSC to the situation and ‘[urged] all [s]tates to take such separate and collective action as [was] open to them in conformity with the Charter to bring about an abandonment of those policies’. [para 5]
Article 24 of the Charter conferred the primary responsibility over maintaining and restoring international peace and security to the UNSC, the organization’s executive organ. There is further evidence of the organizational hierarchy for responding to threats to world peace in Articles 10–12 of the Charter, which have the combined effect of allowing the UNGA to address a situation to which it is alerted by the UNSC or any given state, while precluding it from doing so where the situation is being discussed by the UNSC. Moreover, contrary to their intentions for the UNSC, which may require the application of its decisions regarding threats to international peace the drafters of the Charter sought to limit the UNGA’s power to making non-compulsory recommendations to the states involved as well as to the UNSC (Articles 11, 39, 41, and 42 of the Charter).There are, however, circumstances where the UNGA has been able to overcome this restriction in order to take a more impactful stance in relation to a threat to peace which the UNSC was unable to resolve due to a lack of unanimity among its members. In fact, the UNGA’s Resolution 377 (V): uniting for peace (‘Uniting for Peace Resolution’) set forth such a mechanism and was the basis for the UNGA’s deployment of military force and imposing of mandatory sanctions. Although Resolution 1663 and several other UNGA resolutions pertaining to apartheid were adopted despite being simultaneously discussed by the UNSC, such activities of the UNGA did not fall under the Uniting for Peace framework. In fact, while some members of the UNSC, concerned about protecting their geo-strategic interests, held that the executive branch of the UN was not the appropriate forum in which to address the matter, the UNSC was not deadlocked and did manage to pass several resolutions under Chapter VI of the Charter throughout the years. Moreover, despite the initial convergence of human rights and threats to international security, doubts remained among the membership of the UN as to whether the situation in South Africa warranted a Chapter VII of the Charter mandate (Seventeenth Session of the General Assembly, 1165th plenary meeting, Official Records (‘Seventeenth Session’)).
One concern was that an interventionist approach may violate the principle of sovereignty enshrined in Article 2(7) of the Charter (Seventeenth Session), as well as in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. This corresponds to the old conception of state sovereignty, which ultimately sought to shield a sovereign leader from intrusion into their domaine réservé. It evolved as the international community became increasingly preoccupied with the population’s ability to express its free will. Moreover, as apartheid, which has since been codified as an international crime, went against the purposes of the United Nations, it could not properly be qualified as an internal matter.
UNGA Resolution 1761 (XVII)—adopted following a discussion of agenda item 87 related to the South African government’s apartheid policies—stipulated a number of measures aimed at isolating South Africa from an economic and a diplomatic standpoint. That the South African government remained undeterred, despite the voluntary application of such tactics by some states, highlighted the limits of the UNGA’s power in the area of international peace and security.
This said, Resolution 1663 is non-negligible as it contributed to the precedents set by the UNGA. In an advisory opinion issued within the year that followed the adoption of the Resolution, the International Court of Justice (ICJ or ‘Court’) considered the practice of the UN and held that Article 11(2) of the Charter entrusted the UNGA with the power to take coercive and enforcement action insofar as it did not concern actions which are solely in the UNSC’s province, namely those which can be taken under Chapter VII of the Charter (Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), p 165 (‘Certain Expenses’)). Turning to the UNSC’s primacy for the maintenance and restoration of world peace, the ICJ analysed Article 14 of the Charter, whereby the UNGA may ‘recommend measures for the peaceful adjustment of any situation … which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter’. The ICJ opined that, although the limitation included in Article 12 of the Charter applied, Article 14 enabled the UNGA to take actions aimed at addressing specific threats to peace and security (Certain Expenses, p 163–164)
In a more recent advisory opinion, the ICJ stressed the UNGA’s legitimacy in addressing matters of international peace and security. This was essential in establishing the ICJ’s jurisdiction to issue the opinion, at the request of the UNGA, on the legal consequences of the construction of a wall in the occupied Palestinian territory. In finding that the question fell within the UNGA’s competence, the Court held that the UNGA’s request had been formulated by way of a resolution which had been adopted during an emergency special session contemplated by the Uniting for Peace Resolution. According to the Court, the situation which led the UNGA to request an advisory opinion of the ICJ met the requirements of the Uniting for Peace Resolution (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para 31) There, the Court also pointed to the UNGA’s evolving practice, which demonstrates that the UNGA can, through the adoption of acts like Resolution 1663 which are either uncontested or found to be valid, consolidate and perhaps even expand its role in matters of peace and security.
Beyond illustrating that the UNSC does not have exclusive jurisdiction over questions of peace and security, the impact of the Resolution was to underscore the complementary role played by the UNGA to the work of the UNSC. In fact, the Resolution, along with others adopted by the UNGA establishing linkages between the South African government’s apartheid policies and the threat to international peace and security, contributed to the normative shift in the UNSC’s determination of matters warranting action under Chapter VII of the Charter. This widening of the scope of matters which attracted a determination under Article 39 of the Charter was reflected in UNSC Resolution 418. Though the conclusion of Resolution 418 that international peace was threatened seemed to refer to the use of force by South Africa in neighbouring countries, the stated purpose of the need for a mandatory and universally-applied arms embargo was to ‘prevent a further aggravation of the grave situation in South Africa’ (UNSC Resolution 418, preamble). Further, in this resolution, the UNSC described the government’s policies and acts as ‘fraught with danger to international peace and security’ (UNSC Resolution 418, preamble).
While it may be perceived that the treatment of apartheid and other situations not initially envisaged by the drafters of the Charter as inviting collective enforcement resulted from greater concern for human rights, the International Law Commission—in its report to the UNGA on its work on the codification of the international obligations of states (Report of the Commission to the General Assembly on the Work of its 28th Session)—suggested that this development advanced a more pragmatic objective. Simply put, as coercive action under Article 41 or 42 of the Charter requires a determination under Article 39 of the Charter that there exists a ‘threat to the peace, breach of the peace, or act of aggression’, states sought to increase the types of situations in which such a determination could be made. This lower threshold continues to be applied as a justification for UN intervention.
Further analysis of Relevant Materials
- G J Andreopoulos ‘The challenges and perils of normative overstretch’ in B Cronin and I Hurd (eds), The UN Security Council and the Politics of International Authority (Routledge 2008)
- B Chiagara Revival: Legitimacy Deficit in Custom: Towards a Deconstructionist Theory (2001) (Routledge 2017)
- C J R Dugard ‘The Legal Effect of United Nations Resolutions on Apartheid’ (1966) 83 SALJ 44
- M Marín-Bosch Votes in the UN General Assembly (Kluwer Law International 1998)
- N O’Reilly ‘Competing Narratives and Cold War Politics : The Case of South Africa before the UN Security Council’ Centre For International Defence Policy Occasional Papers series 68 (Kingston, Queens University 2014)
- B Simma, D E Khan, and G Nolte (eds) The Charter of the United Nations: A Commentary (Oxford University Press 2012)
- Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16
United Nations Security Council
- United Nations Security Council Resolution 418 (1977) on South Africa (4 November 1977) S/RES/418 (1977)
United Nations General Assembly
- Report of the Commission to the General Assembly on the Work of its 28th Session (3 May–23 July 1976) UN Doc A/31/10
- United Nations General Assembly Resolution 1761 (XVII): The policies of apartheid of the government of the Republic of South Africa (6 November 1962) UN Doc A/RES/1761 (XVII)
- Sixteenth Session of the General Assembly, 1067th plenary meeting, Official Records (28 November 1961) UN Doc A/PV.1067
- Special Political Committee, ‘The Question of Race Conflict in South Africa Resulting from the Policies of Apartheid of the Government of the Republic of South Africa’ (14 November 1961) UN Doc A/4968
- United Nations General Assembly Resolution 917 (X): The question of race conflict in South Africa resulting from the policies of apartheid of the government of the Union of South Africa (6 December 1955) UN Doc A/RES/917(X)
- United Nations General Assembly Resolution 377 (V): Uniting for peace (3 November 1950) UN Doc A/RES/377 (V)
International Criminal Court
- Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UN Doc A/CONF. 183/9; 37 ILM 1002 (1998); 2187 UNTS 3
- A more secure world: Our shared responsibility, Report of the Secretary-General’s High-level panel on Threats, Challenges and Change (United Nations Department of Public Information 2004)
- Universal Declaration of Human Rights (10 December 1948) UN Doc A/RES/217(III)A
- Convention on the Rights and duties of States (signed 26 December 1933, entered into force 26 December 1934) 165 LNTS 19; PAUTS 37
United Nations General Assembly
- United Nations General Assembly Resolution 2646 (XXV): Elimination of all forms of racial discrimination (30 November 1970) UN Doc A/RES/2646(XXV)
- Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (24 October 1970) UN Doc A/RES/2625(XXV), Annex
- Seventeenth Session of the General Assembly, 1165th plenary meeting, Official Records (6 November 1962) UN Doc A/PV.1165
- United Nations General Assembly Resolution 1598 (XV): Question of race conflict in South Africa resulting from the policies of apartheid of the government of the union of South Africa (15 April 1961) UN Doc A/RES/1598 (XV)
- United Nations General Assembly Resolution 44 (I): Treatment of Indians in the Union of South Africa (8 December 1946) UN Doc A/RES/44(I)
- United Nations General Assembly Resolution 103 (I): Persecution and discrimination (19 November 1946) UN Doc A/RES/103(I)
United Nations Security Council
- United Nations Security Council Resolution 421 (1977) (9 December 1977) UN Doc S/RES/421 (1977)
- United Nations Security Council Resolution 417 (1997) (31 October 1977) UN Doc S/RES/417 (1977)
- United Nations Security Council Resolution 392 (1976) (19 June 1976) UN Doc S/RES/392 (1976)
The General Assembly,
Recalling its previous resolutions on the question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Republic of South Africa,
Considering that in its resolutions 616 B (VII) of 5 December 1952, 917 (X) of 6 December 1955 and 1248 (XIII) of 30 October 1958 the General Assembly has declared that racial policies designed to perpetuate or increase discrimination are inconsistent with the Charter of the United Nations and with the pledges under Article 56 of the Charter,
Noting that in its resolutions 395 (V) of 2 December 1950, 511 (VI) of 12 January 1952 and 616 A (VII) of 5 December 1952 the General Assembly has successively affirmed that the policy of racial segregation (apartheid) is necessarily based on doctrines of racial discrimination,
Recalling that the Security Council in its resolution of 1 April 19604 recognized that the situation in South Africa was one that had led to international friction and, if continued, might endanger international peace and security,
Recalling further that the Security Council in its aforesaid resolution called upon the Government of South Africa to initiate measures aimed at bringing about racial harmony based on equality in order to ensure that the present situation does not continue, or recur and to abandon its policies of apartheid and racial discrimination,
Recalling in particular that the Government of South Africa has completely disregarded General Assembly resolution 1598 (XV) of 13 April 1961 and, far from bringing its policies and conduct into conformity with its obligations under the Charter, has continued to reinforce its racial policies in disregard of those obligations,
1. Deplores that the Government of the Republic of South Africa has failed to comply with the repeated requests and demands of the General Assembly and with the aforesaid resolution of the Security Council and has flouted world public opinion by refusing to reconsider or revise its racial policies or to observe its obligations under the Charter of the United Nations;
2. Strongly deprecates the continued and total disregard by the Government of South Africa of its obligations under the Charter and furthermore its determined aggravation of racial issues by ever-increasing discriminatory laws and measures and their ruthless enforcement accompanied by violence and bloodshed;
4. Calls the attention of the Security Council to the provision of Article 11, paragraph 3, of the Charter;
5. Urges all States to take such separate and collective action as is open to them in conformity with the Charter to bring about an abandonment of those policies;
6. Reaffirms that the racial policies being pursued by the Government of South Africa are a flagrant violation of the Charter of the United Nations and the Universal Declaration of Human Rights and are totally inconsistent with South Africa's obligations as a Member State;
7. Reaffirms with grave concern and deep anxiety that these policies have led to international friction and that their continuance seriously endangers international peace and security;
8. Reminds the Government of South Africa of the requirement of Article 2, paragraph 2, of the Charter that all Members shall fulfil in good faith the obligations assumed by them under the Charter;
4 Official Records of the Security Council, Fifteenth Year, Supplement for April, May and June 1960, document S/4300.