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1968 Prize Award Essay The South West Africa Cases and the Jurisprudence of International Law

Published online by Cambridge University Press:  22 May 2009

Alexander J. Pollock
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Extract

The South West Africa Cases presented the International Court of Justice (ICJ) with a choice not only between the parties to the suit but also between rival claims about the nature of international law itself. Perhaps every case presents the Court with a choice of some degree between jurisprudential foundations, but in the South West Africa Cases the choice is striking.

Type
Research Article
Information
International Organization , Volume 23 , Issue 4 , Fall 1969 , pp. 767 - 787
Copyright
Copyright © The IO Foundation 1969

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References

1 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I. C. J. Reports 1962 (hereinafter cited as South West Africa Cases, Preliminary Objections), p. 343.

2 Falk, Richard A., “The South West Africa Cases: An Appraisal.”, International Organization, Winter 1967 (Vol. 21, No. 1), p. 11CrossRefGoogle Scholar.

3 Dissenting opinion of Judges Spender and Fitzmaurice, South West Africa Cases, Preliminary Objections, pp. 466–467.

4 South West Africa Cases, Second Phase, Judgment, I. C. J. Reports 1966(hereinafter cited as South West Africa Cases, Second Phase), p. 23.

5 Dissenting opinion of Judge Tanaka, South West Africa Cases, Second Phase, p. 276.

6 Landis, Elizabeth, “The South West Africa Cases: Remand to the United Nations,”, Cornell Law Quarterly, Spring 1967 (Vol. 52, No. 5), p. 667Google Scholar.

7 Dissenting opinion of Judge Jessup, South West Africa Cases,Second Phase, pp. 418–419.

8 Landis, , Cornell Law Quarterly, Vol. 52, No. 5, p. 667Google Scholar.

9 D'Amato, Anthony, “Legal and Political Strategies of the South West Africa Litigation,”, Law in Transition Quarterly, 03 1967 (Vol. 4, No. 1), p. 26Google Scholar.

10 Ibid., p. 27.

11 Dissenting opinion of Judge Jessup, in South West Africa Cases, Second Phase, p. 373.

12 Disseating opinion of Judge Tanaka, in South West Africa Cases, Second Phase, p. 270.

13 Quoted in the dissenting opinion of Judge Mbanefo, South West Africa Cases, Second Phase, p. 504.

14 Covenant of the League of Nations, Article 22, section 2.

15 Dissenting opinion of Judge Tanaka, in South West Africa Cases, Second Phase, p. 271.

16 Dissenting opinion of Judge Jessup, in South West Africa Cases, Second Phase, pp. 433–434.

17 Cited in Landis, , Cornell Law Quarterly, Vol. 52, No. 5, p. 643Google Scholar.

18 Dissenting opinion of Judge Jessup in South West Africa Cases, Second Phase, p. 439.

19 Ibid., quoting Judge Sir Percy Spender in Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), I.C.f. Reports 1962, p. 151.

20 Dissenting opinion of Judge Tanaka, in South West Africa Cases, Second Phase, pp. 288–290.

21 Ibid., p. 295.

22 D'Amato, , Law in Transition Quarterly, Vol. 4, No. 1, p. 37Google Scholar.

23 Dissenting opinion of Judge Tanaka, in South West Africa Cases, Second Phase, p. 306.

24 The preceding three paragraphs summarize ibid., pp. 304–311.

25 Ibid., pp. 291–292.

26 Ibid., p. 292.

27 Ibid., p. 294.

28 Ibid., p. 297.

29 Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar.

30 Falk, , International Organization, Vol. 21, No. 1, p. 22Google Scholar.

31 The Hegelian reference is apt because law has the important aspects of communal activity, generality, attempted growing explicitness, and historical development. It is particularly apt because a prime characteristic of Hegelian Spirit is that it sets up over against itself as something “other” what really is part of itself, its own creation. Subsequently it discovers that the “other” was its own creation all along but in the process sets some new creation over against itself as “other.” In this back-and-forth manner it moves through and makes history. The jurisprudence of international law is an admirable example of this process. Old natural law theory held certain principles tobe written in Nature. The positivistic

32 Quoted in dissenting opinion of Judge Jessup,South West Africa Cases, Second Phase, p. 325.

33 Sohn, Louis B. (ed.), Cases on United Nations Law (Brooklyn: Foundation Press, 1956), pp. 634 ffGoogle Scholar.

34 The UN discussion is summarized in Ibid., pp. 594–623.

35 General Assembly Resolution 2145 (XXI), October 27, 1966.

36 Cf. the dissenting opinion of Judge Tanaka in South West Africa Cases, Second Phase: So long as the Mandate survives on an institutional basis after the dissolution of the League, the necessity for the future amendment of the Mandate by consent of both parties does subsist. (P. 323.)

37 General Assembly Resolution 2131 (XX), December 21, 1965.

38 I cannot refrain from speculating briefly on the social and historical conditions underlying die unresolved tension in contemporary international law which we havediscussed. These are the result, it seems convincing to suppose, of the Westernization of the world. Westernization has created a world of nation-states, each committed to its own sovereign power. It has also resulted in the spread of the liberal values of freedom and equality before the law to such an extent that there has come into being an international consensus upholding their authority.

Thus the seventeenth-century European conflict between the natural law revealed to reason and the rights of states established in the Westphalia system has been given a new look and worldwide proportions.