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5 - The effect of transition on the domestic law of the territory

Published online by Cambridge University Press:  05 July 2011

Yaël Ronen
Yaël Ronen
Affiliation:
Hebrew University of Jerusalem
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Summary

When pleading the case for an obligation of non-recognition of South Africa's acts in Namibia, the UN Secretary-General noted that

It will be the prerogative of the future Legislative Assembly of Namibia … to decide whether, and to what extent, to recognize or validate any act undertaken under void laws during the illegal South African presence, or to grant retroactive validation to any such law having an otherwise acceptable content.

The present chapter examines whether the Secretary-General's statement, that the post-transition regime enjoys the prerogative of validating acts of the illegal regime or rejecting them, was correct as a matter of law and practice. Like the Secretary-General, this chapter focuses on law of the illegal regime which has acceptable content and would have been valid if it were not for the illegality of the regime.

Doctrine

The post-transition regime's freedom of action

The obligation of non-recognition is aimed at preventing the consolidation of the illegal regime in the territory. Its raison d'être disappears once the illegal regime comes to an end. Since the underlying rationale for the obligation is ultimately the protection of the rights of the lawful regime, it is untenable that these rights should be prejudiced by the illegality of the previous regime any more than they should be prejudiced by its effectiveness.

Type
Chapter
Information
Transition from Illegal Regimes under International Law , pp. 159 - 185
Publisher: Cambridge University Press
Print publication year: 2011

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References

Eichmann v. Attorney-General of Israel, Case No. 336/61, Supreme Court Judgment of 29 May 1962 (1962) 36 International Law Reports277, 281–282
Stone, Julius, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes- and War-Law, 2nd edn (Sydney: Maitland Publications, 1959)Google Scholar
Kelsen, Hans, Peace through Law (Chapel Hill: University of North Carolina Press, 1944)Google Scholar
Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn (Kehl: N. P. Engel, 2005), 359–361Google Scholar
Eekelaar, J. M., ‘Rhodesia: The Abdication of Constitutionalism’ (1969) 32 Modern Law Review19CrossRefGoogle Scholar
Dugard, John, ‘South West Africa and the “Terrorist Trial”’ (1970) 64 American Journal of International Law19CrossRefGoogle Scholar
,The SPSC noted that ‘the UN also branded the continued Portuguese occupation as illegal’, Public Prosecutor v. João Sarmento and Domingos Mendonça, Decision of 24 July 2003, 12–13, [40]Google Scholar

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