The topic of Lesotho’s quest to regain its conquered territory evokes strong emotions and demands thoughtful consideration. The reclamation of this land by Lesotho’s Parliament, pursuant to the United Nations (UN) Resolution 1817 (XVII) passed on 18 December 1962, is a matter that requires a thorough analysis and deep reflection.
A closer examination of UN Resolution 1817 (XVII) reveals that the UN specifically urged the United Kingdom (UK), which held colonial authority over Lesotho at the time, to take immediate steps to return all land that had been taken from the Basotho people regardless of the justifications given for such action.
Notably, the resolution did not mention the return of conquered territory by South Africa, already then recognised as a sovereign state and a founding member of the UN. This responsibility was squarely placed on the UK, which was the colonial authority over Basutoland at that time. Even if the resolution had explicitly directed South Africa to return the conquered territory to Lesotho, questions would still arise about the binding nature of that UN General Assembly Resolution. This question would arise because it is widely accepted that, according to the UN Charter’s provisions, the General Assembly can only make non-binding recommendations to its member states. For decisions with binding authority on member states, Article 24 and 25 of the UN Charter specifically assert that only the UN Security Council can issue them, regardless of whether the resolution pertains to the maintenance of international peace and security.
Another significant aspect that has to be considered in the discussion of Lesotho’s territorial reclamation, pursuant to UN Assembly Resolution 1817 (XVII), is Lesotho’s acceptance of the borders that existed upon its achievement of national independence on 4 October 1966. When Lesotho joined the Organisation of African Unity (OAU) on 31st October 1966, it committed itself irrevocably to the principle of respecting the borders that existed on the day of its national independence. The OAU Assembly of Heads of State and Government at its First Ordinary Session held in Cairo, Arab Republic of Egypt, from 17- 21 July,1964, through Resolution AHG/Res. 16(I) considered that the borders of African states, on the day of their independence, constitute a tangible reality. The OAU Assembly had also solemnly reaffirmed the strict adherence by all member states to the principle of respect for the sovereignty and territorial integrity of each state and for its inalienable right to independent existence.
Lesotho has never been a persistent and consistent objector to this African customary international law principle of respecting borders as they existed on achievement of national independence. To complicate matters, when Lesotho ratified the African Union (AU) Constitutive Act in 2001, it reaffirmed its acceptance of the principle of respecting borders as they existed on achievement of independence. Article 4 (b) of the Constitutive Act of the AU mandates the AU to operate in accordance with the principle of respect of borders existing on achievement of independence. It is generally affirmed and emphasised that this principle is the cornerstone of continental peace, security, and stability, as well as peaceful coexistence among African states. Any deviation from this principle could jeopardise the warm relations between African states and any unilateral territorial reclamation could escalate into a threat or use of force, as every sovereign state has a fundamental right to protect and defend its territorial integrity. It is imperative in terms of Article 2.3 and Article 2.4 of the UN Charter for states to settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered. All states are also obliged to refrain from the threat or use of force against the territorial integrity or political independence of any other state.
Therefore, in terms of the provisions of the UN Charter and other treaty obligations as well as the UN Declaration on Principles of International Law concerning Friendly Relations and Cooperation among states, Lesotho and South Africa should engage in a diplomatic dialogue regarding the matter. This diplomatic effort should follow in the footsteps of previous initiatives, such as the one initiated by Lesotho’s then-Minister of Foreign Affairs, Eminent Adv. Kelebone Maope KC, in 1997. Engagement of the two friendly countries on this matter should be based on established principles of sovereignty over a territory namely, treaties, recognised historical boundaries and evidence of effective control.
If diplomatic engagements do not succeed, then by mutual consent the two countries could approach the International Court of Justice or the Permanent Court of Arbitration rather than Lesotho unilaterally reclaiming the territory in terms of Section 2 (1) of its constitution. In this case the two countries will be following in the footsteps of other Africa states in similar situations namely: Burkina Faso v. Mali: Frontier Dispute (1986); Libya v. Chad: Territorial Dispute (1994); Cameroon v. Nigeria, Equatorial Guinea intervening: Land and Maritime Boundary (2002); Benin v. Niger: Frontier Dispute (2005); Botswana v. Namibia: Kasikili/Sedudu Island (1999) and The Permanent Court of Arbitration arbitral proceedings on Eritrea-Ethiopia Boundary Commission award (2002) to mention but a few.
However, both Lesotho and South Africa share a commitment to realising the AU vision of a united, prosperous, and peaceful Africa driven by its own citizens and representing a dynamic force in the global arena, as well as The Africa We Want. It is in this context, that persuaded by concrete realities on the ground, dynamics of geo-politics, and realpolitik, the collective leadership of both countries must, as a matter of urgency assess the nature of their current states, which are legacies of colonialism. This assessment is essential for deepening integration, ensuring sustainable socio-economic development, and fostering prosperity for the people of Lesotho and South Africa and indeed the people of the entire Southern Africa.
In reality, Lesotho, is a landlocked, lower-middle-income country completely surrounded by South Africa and economically integrated with its larger and only neighbour. On the other hand, South Africa, is an upper-middle-income country with the most industrialised, technologically advanced, and diversified economy on the continent. According to the World Bank Data (2022), South Africa has a population of around 60 million, a gross domestic product (GDP) of approximately US$ 405.87 billion and a GDP per capita of US$ 6,776.50. In contrast, Lesotho has a population of around 2.3 million, a GDP of approximately US$ 2.55 billion, and a GDP per capita of US$ 1,107.40. The poverty headcount ratio in Lesotho is 32%, while in South Africa, it is 20.5%.
Given these concrete realities and the interdependence of the two countries, the discussion should shift away from territorial reclamation, which presents complex legal and political challenges. Rather, the real discussion between the two countries should be about how to explore and utilise existing frameworks in their efforts to deepen their political, economic and people integration. Such frameworks include the Southern African Customs Union (SACU) between Botswana, Eswatini, Lesotho, Namibia, South Africa and the Common Monetary Area between Eswatini, Lesotho, Namibia and South Africa, as well the Agreement on the Facilitation of Cross-Border Movement of Citizens between Lesotho and South Africa (June, 2007). These frameworks can serve as the building blocks for fostering prosperity and socio-economic development for both countries and their people.
Advocate Batlokoa Makong is the advisor to the Chief Executive Officer of the African Peer Review Mechanism
