South Africa–United States — The visa as an instrument of political pressure

On 15 September, US Secretary of State Marco Rubio announced a new visa-restriction policy concerning South Africa. It targets foreign nationals whom Washington considers responsible for or complicit in adopting or implementing laws and policies that permit the seizure of land without compensation, discrimination based on race or incitement to imminent violence against members of ethnic or racial minorities.

No names have been made public. The measure defines categories of people who may be declared inadmissible to the United States. Certain members of their families may also be affected.

The US administration links the decision to its criticism of South African land and racial policies. The South African government rejects this interpretation. It states that the disputed provisions are intended to remedy the consequences of a history of dispossession and exclusion and fall within the exercise of its legislative sovereignty.

The United States is thus using its territorial admission policy to attach individual consequences to its disagreement with South African political choices.

The right to admit people to national territory

A state determines, subject to its international commitments and domestic law, the conditions under which foreign nationals may enter its territory.

The United States bases the announced restrictions against certain foreign nationals connected with South African policies on section 212(a)(3)(C) of the Immigration and Nationality Act. This provision allows the Secretary of State to regard as inadmissible a foreign national whose entry or activities in the United States could have serious consequences for US foreign policy.

A visa refusal thereby acquires a diplomatic function. Conduct abroad may result in refusal of admission when US authorities consider it contrary to their foreign-policy interests.

The immediate effect of the decision remains territorial: the person concerned cannot enter the United States. The reason for the decision is nevertheless located outside US territory. In the South African case, it may lie in participation in the formulation or implementation of public policies decided in Pretoria.

Applying pressure without sanctioning an entire country

A visa restriction is a targeted measure. It differs from an embargo or a general economic sanction affecting an economy, sector or population.

It concentrates the consequence of the decision on the people targeted. Refusal of entry may have limited significance for someone with no connection to the United States. It may weigh more heavily on a public official, business leader or person whose activities require international travel.

No public list currently shows the number or identity of those who may be affected by the US measure.

People involved in formulating or implementing the targeted policies therefore do not necessarily know whether they fall within its scope. The measure’s reach lies both in the refusals that may be issued and in the possibility that it may be applied.

The disagreement over remedial policies

Washington and Pretoria attach opposing classifications to the policies concerned.

The US administration presents them as potentially authorising racial discrimination, expropriation without compensation or harm directed at minorities. Pretoria places them within a policy intended to remedy inequalities produced by colonisation and apartheid.

The South African government invokes the constitutional objective of healing the divisions of the past, social justice and equality. It regards policies aimed at historically excluded populations as part of the operation of its democratic institutions.

A policy presented by Pretoria as remedial is thus described by Washington as potentially producing discrimination based on race.

The United States cannot repeal South African laws or directly prevent their application within South African territory. It can refuse entry to its own territory to certain people whom it considers associated with their formulation or implementation.

Legislative sovereignty confronted with external effects

Pretoria responded to the US announcement by invoking its sovereignty.

South African authorities assert the competence of their constitutional institutions to determine the country’s laws. They consider that disagreements with Washington should be addressed through diplomatic channels rather than through unilateral measures intended to influence their domestic policy choices.

The United States, for its part, has the competence to determine the conditions of access to its territory.

The two competences therefore do not concern the same object. South Africa legislates within its territory; the United States determines who may enter its own. The tension results from the reason given for the US decision: for those concerned, access to US territory depends on acts performed in exercising or implementing South African policies.

A decision taken in Washington may consequently produce individual effects on South African officials or actors without changing the law applicable in South Africa.

A social scope that is difficult to measure

No public data currently make it possible to determine how many people may be affected. The US wording does not identify a precise profession or function: it defines conduct and forms of participation in the disputed policies.

The potential scope therefore extends beyond government members alone. It may include political officials, senior civil servants, agents or managers of public bodies responsible for implementing the policies concerned and, in the circumstances provided for by the US measure, certain members of their families. Membership of one of these categories does not mean that a visa restriction has been imposed.

The absence of a public list therefore leaves a gap between the number of people actually subject to a measure and the much harder-to-determine number who may consider themselves exposed to it. The restriction thus produces an effect before its individual application is publicly known: those involved in the targeted policies know that their participation may now be considered in a US decision on admission to the territory.

A measure without a public list

The announced policy exists, but its concrete extent cannot yet be measured.

The US measure defines conduct that may lead to a restriction without publicly naming individuals. It therefore provides no means of knowing their number or functions.

The announcement of a restriction policy must be distinguished from the individual decisions taken to apply it. In the absence of published names, it would be inaccurate to present the measure as a sanction already imposed on an identified list of South African officials.

The South African government has chosen to challenge the decision publicly while maintaining diplomatic exchanges with Washington. The Department of International Relations states that disagreements between the two countries should be resolved through diplomatic engagement between states.