oa Comparative and International Law Journal of Southern Africa - Under international law, does the new order in South Africa assume the obligations and responsibilities of the apartheid order? An argument for realism over formalism

Volume 30, Issue 3
  • ISSN : 0010-4051



If the new government adopts the approach that there has been a change in sovereignty over the territory of South Africa, and that for the first time South Africa is now a newly emancipated state, can the government also adopt the view that henceforth, all treaty obligations entered into by the apartheid order, and all wrongs committed by the apartheid order (in both the domestic and foreign contexts) can be dealt with in terms of the 'clean slate', or 'free choice' approach to newly emancipated states? On the one hand, some may argue that the clean slate approach is not available to South Africa, because South Africa has been a state and was recognised as such by the international community. This article argues that this question is a matter of first impression. In addressing the question there is a need to move beyond a formalistic approach and to look at the reality of what the apartheid order represented to the international community and the majority of South Africans.

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