1 The reference ‘’Rhodesia'’ throughout this article is to Southern Rhodesia, the latter being, from the perspective of British constitutional law, the proper name for the area. We employ the short form for purposes of economy only.

2 For general statistics, see 1964-1965 Statesman's Year-Book 473-480 (1964). The area of Rhodesia comprises the Matabele Kingdom, Mashonaland and Manicaland: Palley, The Constitutional History and Law of Southern Rhodesia 1888-1965 xxiii (1966).

3 For the text of the Charter of the British South Africa Company, see C. 5918, Encl. at 227-232; and for critical commentary, see Palley, op. tit. note 2 above, at 33-43. For brief details of Rhodes’ acquisition of power in the area, see Rogaly, Rhodesia: Britain's Deep South 9-12 (1962, The Economist Intelligence Unit).

4 Southern Rhodesia (Annexation) Order in Council 1923; the Constitution of 1923, described as a “typical ‘Westminster export model’ “ by Palley, is found in S.E.O. Revised xxi at 371. An examination of the Constitution and its history of application indicates that the contention that Rhodesia has been completely selfgoverning for 40 years is without factual foundation. The right of supervision by the United Kingdom was retained and even as late as 1953 the regulation of native affairs was not included in the domain of self-government! In 1959 the then Prime Minister of Southern Rhodesia, Sir Edgar Whitehead, said that “neither the Federation nor Southern Rhodesia are fully self-governing.” 42 S.E.L.A.D. col. 3043, quoted in Palley, op. cit. note 2 above, at 215.

5 Rhodesia and Nyasaland (Federation) Bill 1953, 1 & 2 Elisabeth II c. 30; Federation of Rhodesia and Nyasaland (Constitution) Order in Council 1953, S.I. 1953, No. 1199. It is significant that these constitutional changes did not take the opinion of the blacks into account and, for this reason, were discussed in 1953 by the 4th Committee of the General Assembly.

6 Rhodesia and Nyasaland Act 1963, 11 & 12 Elisabeth II, c. 34; Federation of Rhodesia and Nyasaland Order in Council 1963 S.I. 1963, No. 1635.

7 Statement to Parliament, Nov. 3, 1964, 701 Parl. Debates 67 (5th Series). This was not a partisan position; on July 21, 1961, the then Secretary of State for Commonwealth Relations, Mr. Duncan Sandys, said in the House of Commons: “the British Government would not feel able to give up its reserve powers unless there was a significant alteration of the franchise and a substantial increase in African representation in the Legislature.” 644 Parl. Debates, col. 171.

8 See Southern Rhodesia Constitution, Part II—Detailed Provisions, Appendix 1 at 27 ff., and see also ibid, at 12. Cmnd. 1400 (1961).

9 Despite numerous statements of benevolence and expressions of genuine commitment to effective democracy, it is quite difficult to avoid concluding that the unilateral declaration of independence was undertaken by the white Rhodesian minority precisely in order to avoid realization of the most fundamental tenet of democracy— the effective sharing of power. We note, in this respect, the following statements of Prime Minister Ian Smith, the last of which was delivered in December, 1966: ” I cannot in all honesty claim that I am an advocate of majority rule.” “We will never negotiate with Britain while Mr. Wilson is in his present position because he is waiting for us to reach the position of one man, one vote and this will not happen in my lifetime or Mr. Wilson's lifetime.” Quoted by Congressman Rosenthal of New York, Cong. Bee., Feb. 9, 1967, H 1246.

10 General Assembly Res. 1747 (XVI); 1760 (XVII).

11 Bes. 2012 (XX), Oct. 12, 1965; 60 A.J.I.L. 921 (1966).

12 Res . 2022 (XX), Nov. 5, 1965; 60 A.J.I.L. 922 (1966).

13 For the text of the Declaration, see 5 Int. Legal Materials 230-231 (1966).

14 Res . 2024 (XX), Nov. 11, 1965; 60 A.J.I.L. 924 (1966).

15 Res. 217 (1965), Nov. 20, 1965; 60 A.J.L.L. 924 (1966).

16 Res. 221 (1966), April 9, 1966; 60 A.J.I.L. 925 (1966).

17 Res. 232 (1966), Dec. 16, 1966; 61 A.J.LL. 654 (1967).

18 For a recent report, see Fellows, “Rhodesia Regime is Standing Firm,” New York Times, July 23, 1967, p. 14, col. 3. For a more general consideration, see Galtung, “ O n the Effects of International Economic Sanctions, with Examples from the Case of Rhodesia,” 19 World Politics 2 (1967); and Hoffman, “The Functions of Economic Sanctions: A Comparative Analysis,” 1967 J. Peace Research 140.

19 A detailed survey of Rhodesian enactments, as reported in the Western press, is beyond the scope of this article. See, generally, New York Times, Jan. 17, 1965, p. 3, col. 2; March 23, p. 14, col. 6; April 13, p. 8, col. 7; May 27, p. 6, col. 7; May 28, p. 2, col. 5; May 29, p. 8, col. 8; June 2, p. 6, col. 1; July 15, p. 19, col. 8; Oct. 24, p. 7, col. 1; Oct. 28, p. 1, col. 5; Nov. 6, p. 1, col. 6; Nov. 7, p. 1, col. 2; Nov. 12, p. 1, col. 8; Nov. 17, p. 1, col. 5; Nov. 19, p. 1, col. 5; Nov. 23, p. 1, col. 1. See also Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and People (1965) (A/5800/Rev. 1; A/6000/Rev. 1). For more detailed and even more disquieting surveys, see Leys, “ The Growth of Police Powers and the 1959 Emergencies,“ in Leys and Pratt, A New Deal in Central Africa 131 (1960); Hasson, “Rhodesia—A Police State? “ 22 The World Today 181 (1966). An accurate grasp of the effects of the Rhodesian system upon the majority of the population can only be gained by relation of legislation to context: “ … a misleading impression might be obtained from superficial study of Southern Rhodesia legislation, which largely avoids reference to race… . “ Palley, op. cit. note 2 above, at vii. Thus, for example, the constitutional system of enfranchisement, based largely on wealth criteria, can only be understood in light of the Land Apportionment Act of 1943, under which half of the best land was allocated for white use, i.e., for less than six percent of the population. Industry is controlled by the whites and the African worker receives one-twelfth the wage which a European receives for the same work. Keatley, The Politics of Partnership (1963). Application of the Preventive Detention Act of 1959, the Vagrancy Act and the notorious Law and Order (Maintenance) Act of 1960 have had enormously deprivatory effects upon the black population in almost all sectors of internal public order. Perhaps the most significant indicator of the increasing authoritarian character of the Rhodesian regime has been the effective diminution of the power of the courts, particularly in view of their supervisory rôle in regard to human rights matters, as envisaged in the Constitution of 1961. In Central African Examiner (Pvt) Ltd. v. Howman and Others N.N.O., the earliest test of the legality of the rebel regime, counsel for one of the government ministries warned the court that “certain dire consequences might overtake the court if it ‘took sides’ in what amounted to a political struggle between British and Rhodesian governments“; the court in that case refused to be intimidated. 1966(2) S.A. 7. (E.) at 14, quoted in Palley, “ T h e Judicial Process: T.J.D.I. and the Southern Rhodesian Judiciary,” 30 Modern Law Review 263, 269, 270 (1967). But in the recent cases of Madzimbamuto v. Lardner-Burke N.O. and Others, and Baron v. Ayre N.O. and Others, Judgment No. GD/CIV/23/66, discussed in Palley, op. cit. passim, the Rhodesian court, avoiding direct rulings on the legitimacy of the local regime, upheld the lawfulness of the Emergency Powers (Maintenance of Law and Order) Regulations in regard to the detention of opponents of the authorities, despite the fact that such measures would probably have been materially unlawful in the pre-U.D.I. period. For a comprehensive critique of the decision, see Welsh, “The Constitutional Case in Southern Rhodesia,” 83 Law Quarterly Review 64 (1967).

20 English criticism of the Security Council's action is presented and ably appraised in Higgins, “International Law, Rhodesia and the U.N.,” 23 The World Today 94 (1967); among the American appraisals which have treated the matter in scholarly fashion, see Goldberg, “International Law in the United Nations,” 1966 Proceedings, American Association of Law Schools, Pt. II, pp. 86, 91; Center for International Studies Policy Paper: Studies in the Theory and Structure of Peaceful Change: Policy Paper on the Legality of Mandatory Sanctions by the United Nations against Rhodesia (1967, Franck and Sohn); Rabinowitz, “U.N. Application of Selective, Mandatory Sanctions Against Rhodesia: A Brief Legal and Political Analysis,” 7 Va. J. Int. Law 147 (1967); Fenwick, “When is There a Threat to Peace?—Rhodesia,” 61 A.J.I.L. 661 (1967); Marshall, Crisis over Rhodesia (1967). On April 12, 1967, Representative Ashbrook submitted a list of over 45 American newspapers which “have seen fit to criticize either the stand of the United States or the root of the problem, the mandatory United Nations sanctions.” Cong. Bee, House, April 12, 1967, H 4009.

21 Thus, Representative Selden of Alabama: “But what international crime has Rhodesia committed? Whose borders has Rhodesia invaded? What section of the charter of the United Nations has this small African nation violated? On what basis does Great Britain argue that Rhodesia has become a threat to the peace?“ Cong. Rec, House, April 12, 1967, H 4029. On the same day, Representative Gurney of Florida asked rhetorically: “Whose peace is Rhodesia breaching besides Harold Wilson's?” Ibid., at H 4035. See also the remarks of Congressman Bray of Indiana, ibid., at 4031. See also Kilpatrick, “Rhodesia and U.N. Charter,” The Plain Dealer, Jan. 5, 1967; editorial in the Washington Post, Dee. 9, 1966, p. A 20, col. 2; letter to the Washington Post, entitled “Acheson on Rhodesia,” Dec. 11, 1966, p. E 6, cols. 5-6.

22 Acheson, loc. cit. note 21 above. The Washington Post, speaking editorially, had characterized the acts of the white minority as “transgressions.” Former Secretary of State Acheson responded: “But you bother me when you speak of ‘the white minority's transgressions.’ Transgressions against what? What international obligations have they violated?” On April 12, 1967, Congressman Bray of Indiana asked on the floor of the House: “ Just what has Rhodesia done? It has not supported a worldwide conspiracy of espionage and subversion. Its armies are not poised for an attack on its neighbours. It has not given support to or encouraged guerrilla warfare in Africa or anywhere else. It has threatened no one, and wants nothing more than acceptance into the community of nations as an independent state, ready and willing to live in peace and honour its international obligations.” Cong. Rec, House, April 12, 1967, H 4031.

23 See the remarks of Congressman Selden, loc. cit. note 21 above. “The white minority's transgressions have occurred within the boundaries of one country … “; the Washington Post, loc. cit. note 21 above; on Dec. 14, 1966, the Washington Post returned to this point: “they (sanctions) amount to interference in the domestic affairs of another country merely because of the form of government practiced there.” “ … whatever the Rhodesians have done has been wholly within their own country … “ Acheson, loc. cit. note 21 above.

24 Art. 24(1) of the Charter provides: “ In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” Art. 39, which introduces Chapter VII of the Charter—Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression— provides, in its entirety, that: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.“

25 12 U.N.C.I.O. Docs. 505.

26 Thus, Art. 40 authorizes the Council, “ in order to prevent an aggravation of the situation,” to “call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable.” Art. 41 authorizes the Council to take “measures not involving the use of armed force to give effect to its decisions,“ and Art. 42 provides that “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Although Art. 42 does not limit the coercive modalities to which the Security Council may resort, it specifically cites “demonstrations “ and “blockades and other operations” as lawful.

27 Thus, in the Greek frontier incidents of 1947, the Council resolved that supporting armed bands in crossing into another state should be characterized “ as a threat to the peace within the meaning of the Charter of the United Nations.” But the Council qualified this communication as being only a point of view and reserved for itself the necessity of determining whether the future occurrence of such a case would, in fact, constitute a threat to the peace. Security Council, 2nd Tear, Official Records, No. 66, 170th meeting, pp. 1604, 1612. For a general evaluation, see 2 Repertory of Practice of United Nations Organs 354-356 (1955). Comparable reticence to limit itself to a rigid position in the future characterized the Council's response to Syrian-Israeli clashes in January, 1956. 1 Repertory of Practice of United Nations Organs, Supp., Vol. 1, p. 330 (1958).

28 Attention should also be given to the two terms, employed in Art. 39, signifying the dual objectives of the Council, operating under Chap. VII: measures may be taken “to maintain or restore… . “ While “restore” clearly refers to remedial action subsequent to a perfected breach of the peace, “maintain” refers to preliminary action aimed at removing or forestalling an imminent threat to the peace which has not yet materialized into a “breach.“

29 Cf. McDougal and Feliciano, Law and Minimum World Public Order 192-193, footnote 164 (1961).

30 See Hammarskjöld, “The United Nations and Preventive Action,” Press Conference, Feb. 27, 1956, in Hammarskjold, Servant of Peace 133-135 (1962).

31 This past practice is not, of course, indicative of a constitutional incapacity on the part of the Security Council to identify the party responsible for breaching the peace or creating a threat to the peace. The point to be emphasized is that the Council, in exercising its powers under Chap. VII, is concerned primarily with maintaining or restoring the peace and only secondarily with determining who is responsible for the crisis.

32 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), [1962] I.C.J. Rep. 151, 167; 56 A.J.I.L. 1053 (1962).

33 Thus, Art. 24 of the Charter, after conferring on the Security Council “primary responsibility for the maintenance of international peace and security,” continues in its second paragraph: “ In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII .“

34 [1962] I.C.J. Rep. 151, 168.

35 Charter, Art. 27(3). Portugal and South Africa have criticized the Security Council's decision on the ground that all permanent members did not affirmatively concur (the U.S.S.R. and Prance abstained). A number of other commentators have challenged the legality of the decision in this respect. Any lingering questions regarding the lawfulness of Council practice in this regard are dispelled in Stavropoulos, “The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, Paragraph 3, of the Charter of the United Nations,“ 61 A.J.I.L. 737 (1967). See also Higgins: “ … as early as 1947 … the Security Council was required to decide whether the expression ‘including the concurring votes of the Permanent Members’ meant their affirmative votes: or whether abstention, though not easting a negative vote, could be taken to mean ‘concurrence'. It was then decided, and has since been confirmed on some 107 separate occasions that I am aware of, that the Permanent Members shall be deemed ‘to concur’ if they abstain. If they wish to prevent the passage of a resolution, they may do so by casting a negative vote.” Higgins, “International Law, Rhodesia and the U.N.,“ 23 The World Today 94, 97 (1967).

36 It is for this reason that, in an effort to establish the utmost finality obtainable through procedural criteria, the Charter makes no provision for appeal from a decision by the Security Council and prescribes in Article 25 that all Members are obligated to accept and carry out the decisions of the Council.

37 Acheson, The Washington Post, loc. cit. note 21 above. For comparable statements, see note 19 above.

38 At the TJ.N. Conference on International Organization it was suggested, in regard to Art. 1(1), that the terms “other breaches of the peace” following mention of “aggression” be struck as redundant. The suggestion was rejected: “ … there may be breaches of the peace other than those qualified by present connotation as aggression and the subcommittee decided to keep “other breaches of the peace“ as an all-inclusive term which implies the use of any means of coercion or undue external influence … “ U.N.C.I.O. Doc. 723, 1/1/A/19, p. 8, Report of the Rapporteur, Subcommittee 1/a to Committee 1/1.

39 Thus a leading commentator criticizes the Charter formulation for redundancy. “The express mentioning of ‘acts of aggression’ is superfluous since these acts are included in the concept, ‘breaches of the peace'.” Kelsen, The Law of the United Nations 14 (1950).

40 6 Moore, International Law Digest 347-367 (1906); Lauterpacht, International Law and Human Eights 120 ff. (1950); Murty, Propaganda and World Public Order: The Legal Regulation of the Ideological Instrument of Coercion 83, footnote 16 (1968). “The International Law of the Future,” 399 International Conciliation 268; 38 A.J.I.L. Supp. 55 (1944), provides: “Each state has a legal duty to see that conditions prevailing within its own territory do not menace international peace and order, and to this end it must treat its own population in a way which will not violate the dictates of humanity and justice or shock the conscience of mankind.“

41 It should require no emphasis that the suggestion that the Rhodesian elites are acting in contravention of basic policies of international law carries no implication that they may be appropriately regarded as a state. The notion that only states may violate international law is no longer accepted as even a half-truth; and the fact that a rebelling group acts in contravention of the basic policies of international law is but another good reason for denying it the benefits of statehood.

42 Res. 221 (1966), April 9, 1966; Res. 232 (1966), Dec. 16, 1966, cited notes 16 and 17 above.

43 Art. 25 provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.“

44 Even if it should be assumed, contrary to fact, that Rhodesia is a new state, Art. 2(6) provides: “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.” On the innovative character of the provision, see Goodrich and Hambro, Charter of the United Nations: Commentary and Documents 108-109 (2d rev. ed., 1949), and, more generally, Kelsen, Peace through Law 38 (1944). Consider, in this regard, the relevance, in converse application, of the I.C.J.'s dictum in the Reparations case, [1949] I.C.J. Rep. 174: “ … the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone … “ Ibid. at 185; 43 A.J.IX. 589 at 598 (1949).

45 See Preamble, Art. 1(2), (3), Art. 13(1) (b), Arts. 55 and 56, Art. 62, Art. 73.

46 General Assembly Res. 217 ( III ) , Dec. 10, 1948; 43 A.J.I.L. Supp. 127 (1949).

47 See note 40 above.

48 See below at p. 17.

49 For more comprehensive consideration of this aspect of interaction, see McDougal, Lasswell and Reisman, “ The “World Constitutive Process of Authoritative Decision,“ 19 Journal of Legal Education 253, 254 (1967).

50 The intimate nexus between human rights and minimum world order is clearly articulated in Art. 55 of the Charter: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.“ (Italics supplied.)

51 See below at p. 14.

52 Thus, the Washington Post, loc. cit. note 21 above, states that ‘’ The white minority's transgressions have occurred within the boundaries of one country … “; see also idem, Dec. 14, 1966, to the same effect; see Acheson, loc. cit. note 21 above. See also Kilpatrick, loc. cit. note 21 above, and the statements of Congressmen cited at notes 20 and 21.

53 The harshest criticism leveled on this ground has come from the pen of the American columnist, James J. Kilpatrick ﹛loc. cit. note 21 above). Commenting upon a statement by Ambassador Goldberg, Kilpatrick wrote: “ ‘The Security Council's action in imposing mandatory sanctions upon Ehodesia,’ said the ambassador, ‘does not flout the principle of self-determination.’ And this is because the white minority Rhodesian regime is not asserting the right of self-determination. It would appear to the mind of ordinary men, gifted with ordinary powers of reason, that it is immaterial what the white minority Rhodesian regime asserts. The action of the Security Council either flouts, or it does not flout, regardless of any assertion in Salisbury.''

54 In this respect, the formal exception, in the final clause of Art. 2(7), to the operation of the principle of domestic jurisdiction is superfluous: if “ t h e Security Council, acting under Chapter VII, decided upon enforcement action, it would be deciding that the matter threatened international peace and security and therefore had already gone beyond the limits of domestic jurisdiction.” Higgins, The Development of International Law through the Political Organs of the United Nations 87 (1963). Cf. Lauterpacht, International Law and Human Eights 177 (1950): “a matter is no longer essentially within the domestic jurisdiction of a State if it has become a matter of international concern to the extent of becoming an actual or potential danger to the peace of the world.“

55 ‘’ The words ‘ domestic jurisdiction’ are neither possessed of any intrinsic or absolute meaning. nor are they self-defining. Neither official pronouncement nor practice of states has ever given them a very precise meaning for any purpose, much less of relevance to rational action about human rights in the contemporary world. Introduced into the Covenant of the League of Nations on the suggestion of American statesmen in the vain hope of appeasing isolationist sentiment, this 'mischievous phrase’ has, in the apt description of a distinguished critic [Brierly], become a ‘new catchword’ or verbal ‘idol’ to serve the same old function that words like ‘sovereignty,’ ‘independence’ and ‘state equality’ have so long served. That function is much too often to put a stop to thought, to summarize conclusions reached on unexpressed or perhaps even unexamined or unconscious grounds and to assert arbitrary refusal to negotiate or cooperate on problems regarded by . wier states as of common concern.” McDougal and Leighton, “The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action,” 59 Yale Law J. 60, 80-81 (1949); Brierly, “Matters of Domestic Jurisdiction,” 6 Brit. Yr. Bk. Int. Law 8 (1925); Bentwich, “The Limits of the Domestic Jurisdiction of the State,“ 31 Grotius Society Transactions 59 (1945).

56 ”… human rights and freedoms, having become the subject of a solemn international obligation and of one of the fundamental purposes of the Charter, are no longer a matter which is essentially within the domestic jurisdiction of the Members of the United Nations … “ Lauterpacht, International Law and Human Rights 178 (1950).

57 Tunis-Morocco Nationality Decrees, P.C.I.J., Series B, No. 4 (1923).

58 Art. 2(7) in conjunction with Art. 39 may be compared, in this regard, with its counterpart provision in the Covenant of the League of Nations. According to Art. 15(8) of the Covenant, as authoritatively interpreted by the Permanent Court of International Justice, a determination of domestic jurisdiction, once made, would have precluded an international organization from participating in the resolution of a dispute, even if the dispute constituted an inclusive threat to the peace. The Pact of Bogotá suffers from a similar rigidity, though it is redeemed by recourse available to the Security Council in instances in which regional processes prove incapable of functioning.

59 It is particularly significant that Art. 55 expressly notes the necessary nexus between the maintenance of human rights and “the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations… . “ For further discussion, see McDougal and Leighton, loo. cit. note 55 above, and Lauterpacht, op. cit. note 56 above: “ t h e correlation between peace and observance of fundamental human rights is now a generally recognized fact. The circumstance that the legal duty to respect fundamental human rights has become part and parcel of the new international system upon which peace depends, adds emphasis to that intimate connexion.” Ibid, at 186.

60 General Assembly Res. 217 ( III ) , Dec. 10, 1948, cited note 46 above.

61 Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Res. 1514 (XV), Dec. 14, 1960; Declaration on the Elimination of All Forms of Racial Discrimination, General Assembly Res. 1904 (XVIII), Nov. 20, 1963; 58 A.J.I.L. 1081 (1964); International Covenant on Civil and Political Eights, General Assembly Ees. 2200 (XXI), Dec. 16, 1966, 61 A.J.I.L. 870 (1967). Of particular relevance is the Convention on the Elimination of Racial Discrimination of 1965, 60 A.J.I.L. 650 (1966), which now has more than sixty signatures and almost a score of ratifications.

62 The initial setback in 1947, when the Commission on Human Eights severely limited the broad competence granted under Charter Art. 68 and reiterated in a Commission resolution in 1948, has not barred positive action: Report of 1st Sess. of Commission on Human Rights, E/259, pars. 21-23; Economic and Social Council Res. 75 (V). For documentation of the process by which this bar has been steadily eroded, see Statement by Dr. Egon Schwelb to the Conference of UNA-USA, New York, April, 1967. One recent example of erosion is in the Optional Protocol to the Proposed Covenant on Civil and Political Eights, 61 A.J.I.L. 887 (1967); 4 U.N. Monthly Chronicle 69 (1967).

63 Some critics have urged that there is a certain hypocrisy in the selectivity of the application of human rights policies. Human rights norms, it is argued, are sought to be applied in one sector of the world, yet violations are apparently ignored in others. A fundamental policy of democratic public order is, indeed, equality in the application of basic policies in comparable instances. Ideally, human rights should be vindicated, at once, everywhere—most especially when their violation creates threats to international peace. In a decentralized world arena, however, in which power is dispersed in many different ways, the application and fulfillment of basic human rights policies must be guided by the opportunities presented, or exigencies imposed, by context and by the potentialities of control. Rhodesia, from this perspective, is more than an opportunity. Failure to act there might not merely fail to fulfill contemporary policies in the inclusive promotion of human rights; it might, further, set back or undermine the whole United Nations program. In the most realistic sense, the impossibility of achieving perfection is scant justification for total inaction.

64 Discussions of the status of Rhodesia have tended to oversimplify the entire problem of state establishment and recognition. In particular, the Smith government has been anxious to demonstrate its de jure existence by reference to the demands which the organized community has made upon it, including the operation of Article 39 of the Charter, and, at the same time, has insisted that the right to determine its objective existence is an inherent right. Some of the arguments which have been invoked are clearly irrelevant. The Rhodesian Information Office in Washington, D.C., for example, in an undated response to an official statement by Ambassador Goldberg, reprinted in Cong. Rec. Appendix, Feb. 13, 1967, at A 607-609, cited cases of acceptability of Southern Rhodesia in certain organized arenas before Nov. 11, 1965, as purported indications of recognition of its status as a state. Whatever the appropriate indices of recognition, the behaviour of other states supposedly indicative of tacit recognition is relevant only after Nov. 11, 1965. Both Rhodesian authorities and a number of American commentators have sought to derive state status from the facts of effective control. Yet states have never made recognition of statehood contingent upon control alone: they have always applied a series of interrelated criteria requiring appraisal in terms of both authority and control. It is significant that no state has recognized Rhodesia on the basis of these or any other criteria.

65 Res. 217 (1965).

66 See [1949] I.C.J. Rep. 174, 185, cited in note 44 above.

67 5 Int. Legal Materials 230-231 (1966).

68 For comprehensive treatment, see Mensah, Self-Determination under United Nations Auspices (Unpublished J.S.D. dissertation, Yale Law School, 1963).

69 Ibid. at 282-324.