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I.C.J. Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)*
Published online by Cambridge University Press: 04 April 2017
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- Type
- Judicial and Similar Proceedings
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- Copyright © American Society of International Law 1971
Footnotes
*
[The operative clauses of the Advisory Opinion appear at I.L.M. page 715. Subparagraph 1 of the’ operative clause was adopted by a vote of thirteen (President Zafrulla Khan, Vice President Ammoun, Judges Bengzon, de Castro, Dillard, Forster, Ignacio-Pinto, Jimenez de Arechaga, Lachs, Morozov, Onyeama, Padilla Nervo, and Petren) to two (Judges Fitzmaurice and Gros). Subparagraphs 2 and 3 of the opera-tive clause were adopted by a vote of eleven (President Zafrulla Khan, Vice President Ammoun, Judges Bengzon, de Castro, Dillard, Forster, Ignacio-Pinto, Jimenez de Arechaga, Lachs, Morozov, and Padilla Nervo) to four (Judges Fitzmaurice, Gros, Onyeama, and Petrén).
[The declaration of President Zafrulla Khan appears at I.L.M. page 716. Excerpts from the separate opinions of Vice President Ammoun, and Judges Padilla Nervo, Petrén, Onyeama, Dillard, and de Castro appear respectively at I.L.M. pages 723, 734, 737, 741, 748, and 776. Excerpts from the dissenting opinions of Judge Sir Gerald Fitzmaurice and Judge Gros appear respectively at I.L.M. pages 780 and 795.
[U.N. Security Council Resolution 276 (1970) and excerpts from the written, statements submitted to the Court in reference to the request for an advisory opinion appear at 10 International Legal Materials 295 (1971).]
References
1 L. Cavaré wrote as follows concerning colonial protectorates: “If the protected country retains its personality, then there is a war in the international meaning of the term and the laws of war must be applied” (Droit international public, Vol. I, 3rd edition, p. 551). A fortiori, this is the case for Namibia even before it was recognized by the United Nations by resolution 2372 (XXII). See also above section 2.
1 G. Schwarzenberger explains the distinction in these words in connection with the implementation of the Briand-Kellogg Pact:
“Parties to the Kellogg Pact which remain at peace with the aggressor are entitled, by way of reprisal, to depart from the observance of strict neutrality between the Pact-breaker and his victim and to discriminate against the aggressor.”
As examples in support of this rule he cites the Destroyer Deal between the United States and Great Britain, and the “Aid Britain” Act of 1941. He adds in a relevant comparison:
“As with Members of the United Nations (Art. 2 (5) of the Charter), parties to treaties may even be under a legal duty to discriminate against an aggressor State” (A Manual of Internatipnal Law, Vol. I, 4th ed., p. 185).
2 See E. Castrén, The Present Law of War and Neutrality, 1954, pp. 451 and 477, who mentions that:
“The purpose may be to assist the victim of aggression ... in which case American writers have used the expression ‘supporting State’” (p. 451).
3 R. Sherwood, in his book of memoirs entitled Roosevelt and Hopkins, writes on p. 221, of Churchill’s overjoyed gratitude: “... and from this came the vast concept which Churchill later described as ‘a new Magna Charta ... the most unselfish and unsordid financial act of any country in all history’”.
1 On the subject of oil supplies see Professor Erik Castrén, The Present Law of War and Neutrality, p. 474
2 See in connection with prohibitions of a financial nature, Professor Paul Reuter, op. cit., p. 321.
1 The specialized agencies in which the voting is based on the democratic rule of one State, one vote, have all decided to refrain from any support to South Africa: for example, Unesco, ILO, FAO and WHO. The recalcitrant, attitude of the-IBRD and the IMF is to be explained by the multiple voting system on a capitalist basis which operates therein, by which the financial Great Powers have a number of votes calculated according to the size of their share in the capital of these two institutions. These Powers are primarily the States which the General Assembly has described as commercial partners of South Africa. In future, States ought to take it as a matter of course that they should bring their attitude in these institutions into line with decisions of the United Nations.
1 Ad Hoc Sub-Committee of the Security Council, S/AC. 17/SR. 14, meeting of 24 June 1970.
1 See hereon L. Cavaré, op, cit., pp. 65p f.
1 P.C.I.J., Series A/B, No. 65, Annex 1, pp. 69-71.
1 These reasons are, of course, completely subordinate to the principal one touching the integrity of the judicial function.
1 A careful consideration of the Order of 31 October 1935 in the Danzig Legislative Decrees case, P.C.I.J., Series A/B, No. 65, Annex 1, pp. 69-71, has not convinced me that it was controlling in light of the wholly different question at issue in that case and the different character of the Statute and Rules which were then operative.
1 The brief statement above is not intended to convey the impression that a finding of “ambiguity” is a precondition for recourse to subsequent conduct as a legitimate mode of enquiry into meaning. It has been observed that the word “ambiguous” is itself not free from ambiguity. Much depends on the nature of the subject matter to be interpreted, i.e., constitutional document, multilateral treaty, bilateral treaty, type of contract, etc. Much depends also on the character of the applicable norms, i.e., whether a vaguely worded standard or a precise rule and much depends on the expectations aroused in light of the entire context and the social interests involved. “A word”, Justice Holmes has reminded us, “is not a crystal, transparent and unchanged; it is the skin of a. living thought and may vary greatly in color and content according to the circumstances and the time in which it is used”. Towne v. Eisner (1918) 245 U.S. at p. 425.
1 For an analysis of the Status of Eastern Carelia case reference is directed to the comprehensive statements of Mir. Cohen (USA) and the then Mr. Fitzmaurice (UK) in arguments in the Peace Treaties case (I.C.JA pleadings, pp. 272-276, 303-312).
1 My reading of the record inclines me to agree with the following statement by Judge Lauterpacht in the Petitioners case, when in dealing with the 1950 Opinion, he declared:
“On the face of it, the Opinion, inasmuch as it held that the United Nations must be substituted for the League of Nations as the supervisory organ, signified a change as compared with the letter of the Covenant. Actually, the Opinion did no more than give effect to the main purpose of the legal instruments before it. That is the true function of interpretation.” (I.C.J. Reports 1956, p. 56.)
This is to be read in light of the nature of the instruments involved and the total context. See ibid., pp. 44, 48.
1 See, in particular, Judge Jessup’s analysis in his dissenting opinion in 1966. (I.C.J; Reports 1966, p. 353 et seq.) Although it did so only incidentally South Africa projected the Image-of a personal service contract and its non-assignability in its Written Statement, Vol. II, p. 155.
1 The leading cases in England are: The British Waggon Co...etc., v. Lea and Co., 5 Q.B.D. 149 (1860) and Tollhurst v. Associated Portland Cement Co. (1903) A.C. (H.L.) 414. In each case the obligor claimed that the transfer terminated the contract. In each case the contention was denied because no undue burden was imposed. Similar results have been reached in the United States. See, Meyer v. Washington Times Co. 76 F (2d) 988 (1935). The point is that “consent” is not the central issue.
1 Judge Klaestad in his separate opinion in the Voting Procedure case’ (I.C.J, Reports 1955, p. 88) stated that as a Member of the United Nations South Africa “is in duty bound to consider in good faith” a recommendation by the General Assembly., but concluded that however serious it may be it does not involve a “true legal obligation”. I cannot agree with this conclusion. The use of discretion and freedom to bargain which the system may confer does not imply the right to exercise an attitude of uninhibited freedom of action which would be tantamount to operating outside the system. (See I.C.J. Reports 1955, p. 120.) Surely the implication of the North Sea Continental Shelf cases was that the three Governments were under a legal duty to negotiate in good faith along the lines indicated in the Judgment. (I.C.J. Reports 1969, p. 47.)
1 It is worth recalling that the 1962 Judgment represents the latest authoritative doctrinal statement of the dual point that the obligation to submit to international supervision survived the dissolution of the League and that “... to exclude the obligations connected with the Mandate would be to exclude the very essence of the Mandate”. (I.C.J. Reports 1962, pp. 333, 334.)
I associate myself entirely with the interpretation placed on the 1966 Judgment by Judge Jessup when he said, in his carefully reasoned dissenting opinion fortified by a comprehensive analysis of historical data, that:
“In the course of three Advisory Opinions rendered in 1950, 1955 and 1956, and in its Judgment of 21 December 1962, the Court never deviated from its conclusion that the Mandate survived the dissolution of the League of Nations and that South West Africa is still a territory subject to the Mandate.” (I.C.J. Reports 1966, p. 327.)
and later, in discussing the implication of the Judgment in 1966:
“Further, the Court has not decided ... that the Mandatory’s former obligations to report, to account and to submit to supervision had lapsed upon the dissolution of the League of Nations.” (Ibid., p. 331.)
Nor can I see that to identify international supervision with supervision by the United Nations involves a logical non sequitur in light of the expectations reasonably aroused upon the dissolution of the League and the available alternatives. Logical problems, including empiric assumptions latent in the choice of premises are beyond the reach of this opinion.
1 United Nations General Assembly, 1448th Plenary Meeting, 19 October 1966, Agenda Item 65, pp. 4, 5. It should be added that the statements above only support the notion of breach. Lord Caradon questioned the wisdom and certain legal aspects of the then proposed termination of the Mandate. It will be recalled that General Assembly resolution 2145 (XXI) was carried by a vote of 114 to 2 with 3 abstentions. , Botswana and Lesotho were absent. Portugal and South Africa dissented and the United Kingdom, France and Malawi abstained.
1 There is something almost prophetic in the pronouncement made by Judge Lauterpacht eleven years before General Assembly resolution 2145 was adopted. In a much quoted passage in his separate opinion in the Voting Procedure case, he suggested,, in dealing with the discretionary power exercised under the trusteeship system and assimilated territories:
“Thus an Administering State which consistently sets itself above the solemnly and. repeatedly expressed judgment of the Organisation, in particular in proportion as that judgment approximates to unanimity, may find that it has overstepped the imperceptible line between impropriety and illegality, between discretion and arbitrariness, between the exercise of the legal right to disregard the recommendation and the abuse of. that right, and that, it has exposed itself to consequences legitimately following as a legal sanction.” (I.C.J. Reports 1955, p. 120.)
1 Evidence that the supervisory role of the Mandates Commission was intended to be an “effective and genuine, not a purely theoretical or formal, supervision” is revealed in the League of Nations publication, The Mandate System; Origin, Principles, Application, quoted in extenso in I.C.J. Pleadings, Admissibility of Hearings of Petitioners, pp. 28-35.
Clearly no-one contemplated in 1920 that a mandatory would commit a material breach and it would have been unusual to have specifically provided for “revocation” in light of that non-contemplated contingency. Indeed, this is true of most long-term engagements. There is, however, support for the proposition that the right of revocation was considered to be inherent, in the view of the Mandates Commission and leading jurists (I.C.J. Pleadings, International Status of South West Africa, 1950, p. 230). To the authorities in support of this proposition, marshalled by the representative of the United States, which included the views of the authoritative Institute of International Law and its rapporteur Professor Rolin (United States written statement, Part II, Section V), may be added the high authority of Bonfils-Pauchillé, Traité de droit international public, I (1925). which, after a thorough examination, states at p. 887’
“... un mandat international est susceptible d’être. révoqué lorsque le mandataire se rend coupable d’un manquement grave à ses obligations, et c’est le Conseil, qui ... prendra à cet égard une décision”.
1 Lauterpacht, Recognition in International Law (1947), p. 420.
1 Since is is important that the true character and purport of this Resolution - (not reproduced in the Opinion of the Court) - should be understood, especially as regards its tone and real motivation, I set it out verbatim and in extenso in the Annex hereto (section 3, paragraph 15). There is hardly a clause in it which is not open to challenge on grounds of law or fact; - but considerations of space forbid a detailed analysis of it on the present occasion.
2 (a) So far as the reporting obligation is concerned, which is a distinct issue from that of the survival of the Mandate in se, the 1955, 1956 and 1962 pronouncements of the Court merely referred to the 3.950 Opinion and added no new reasoning. In its 1962 Judgment in the preliminary (jurisdictional) phase of the then SW. Africa cases (Ethiopia and Liberia v. South Africa) in which the issue was not Article 6 but Article 7 of the Mandate, the Court, as an obiter dictum, simply recited with approval the Court’s 1950 Opinion about the reporting obligation and did not further deal with ‘the matter, which therefore still rests essentially on the 1950 Opinion. Neither in the main conclusion, nor in the operative part of the 1962 Judgment, both of which appear on p. 347 of the Court’s 1962 Volume of Reports, is there any mention of or pronouncement on it. The 1955 and 1956 Opinions given in the Voting Procedure and Right of Petitions cases were equally consequential upon, and based on, the original 1950 Opinion.
(b) It is not without significance perhaps, that the failure to render reports to the Assembly - so heavily relied on in the Opinion of the Court -is not specifically mentioned (though presumably intended to be implicitly covered; in Assembly resolution 2145, amongst the reasons for purporting to terminate the Mandate. Much mere prominence is given to the attainment of independence by the mandated territory, which could not by any process of reasoning be a valid legal ground of unilateral revocation.
3 Much evidence both written and oral was of course laid before the Court in the 1965-1966 proceedings. But only four- judges out of those who then composed the Court now remain, - and in any case-the Court, as such, has not made any collective study of that evidence at all in the course of the present proceedings.
4 With the exception of SW. Africa, all the various .mandated territories -apart of course from those that had become, or became, sovereign independent States - were placed under United Nations trusteeship. This did not by any means take place all at once, - but eventually SW. Africa was the only one to retain mandated status. However, as the Court found in its Advisory Opinion of 1950 concerning the International Status of South West Africa (I.CJ, Reports 1950, at p. 144), the mandatories wore not under any legal obligation to place mandated territories under the trusteeship system.
5 It appears that none of the mandatories rendered reports to the United Nations in the interval (which could be as much as about two years) before the mandated territory was converted into a trust territory or, in some cases, became independent.
70 Ex hypothesi however, it would not be to the United Nations that the Mandatory would be responsible for doing this, or there would merely be the same situation in another form.
1 The English text of the Judgment docs not render so clearly as the French, which is the authoritative text, the distinction between reasons (motifs) and subject-matter (objet).