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‘There was an elephant in the court room’: Reflections on the role of Judge Sir Percy Spender (1897–1985) in the South West Africa Cases (1960–1966) after half a century

Published online by Cambridge University Press:  27 November 2017

VICTOR KATTAN
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Abstract

This article argues that the South West Africa Cases were brought to an ignominious end because the cases were about self-determination as much as they were about apartheid. For liberals like Judge Sir Percy Spender, the President of the Court, political systems based on majority rule looked suspiciously like authoritarian regimes modelled on the Soviet Union during the Cold War. It is submitted that, given the controversy surrounding self-determination in international law, Sir Percy wanted to avoid addressing the merits of the cases. Self-determination was the proverbial ‘elephant in the court room’ that Sir Percy wanted to avoid at all costs. This article builds upon earlier archival research on the South West Africa Cases by taking a closer look at Sir Percy's role in the cases and his views on self-determination. It is argued that what ‘killed’ the cases was Sir Percy's belief that Ethiopia and Liberia were seeking to ‘legalize’ self-determination with a view to further uniting the Afro-Asian bloc at the United Nations with the Soviet Union against the West.

Keywords

CommunismCold Warself-determinationSir Percy SpenderSouth West Africa Cases
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 31 , Issue 1 , March 2018 , pp. 147 - 170
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

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References

1 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6, at 51, para. 99.

2 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, [1966] ICJ Rep. 319, at 343.

3 Kattan, V., ‘Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases ’, (2015) 5 Asian Journal of International Law 310, at 332–3 (footnotes omitted)CrossRefGoogle Scholar.

4 UN General Assembly Resolution 1514, 14 December 1960, UN Doc. A/RES/15/1514.

5 Compare para. 10. H. of the Application Instituting Proceedings to submission 5 in the Memorial of Ethiopia, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), [1966/Vol. I] ICJ Pleadings, Oral Arguments, Documents, at 22 and at 198.

6 See Kattan, V., ‘Self-determination as ideology: The Cold War, the end of empire, and the making of UN General Assembly Resolution 1514 (14 December 1960)’ in Pasquet, L., Van der Ploeg, K. Polackova, and Jankiewicz, L. Castellanos (eds.), International Law and Time: Narratives and Techniques (not yet published)Google Scholar. See further, Kattan, V., ‘Self-Determination during the Cold War: UN General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)’, (2015) 19 Max Planck Yearbook of United Nations Law 419–68Google Scholar.

7 The papers are kept in numbered boxes. See P. Spender and J.M. Spender, ‘Papers 1937-1978’, MS 4875, National Library of Australia, Canberra. The author visited the National Library of Australia in July 2014.

8 Art. 22, Covenant of the League of Nations, 1 League of Nations Official Journal 9 [1920].

9 See Matz, N., ‘Civilization and the Mandates System under the League of Nations as Origin of Trusteeship’, (2005) 9 Max Planck Yearbook of United Nations Law 47, at 55Google Scholar.

10 President Woodrow Wilson, supposedly the ‘father’ of self-determination, famously opposed including Japan's racial equality clause in the Covenant. See Kattan, ‘Self-determination as ideology’, supra note 6. The text of the equality proposal is reproduced in The Colonial Problem: A Report by a Study Group of Members of the Royal Institute of International Affairs (1937), 59. See also, N. Shimazu, Japan, Race and Equality: The Racial Equality Proposal of 1919 (1998).

11 See I. Plettenberg, ‘The Soviet Union and the League of Nations’, in The League of Nations in Retrospect/La Société des Nations: rétrospective. Proceedings of a Symposium organized by the United Nations Library and the Graduate Institution of International Studies (1983), 146–7.

12 See A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995), 38. See also, G.I. Tunkin, Theory of International Law (1974), 62.

13 See J. Fisch, The Right of Self-determination of Peoples: The Domestication of an Illusion (2015), 132. See also, Kattan, ‘Self-determination as ideology’, supra note 6.

14 Fisch, ibid., at 119–22. See also, Lenin's Collected Works (1972), Vol. 20, at 393–454. J. Stalin, Marxism and the National and Colonial Question (2003, reprinted from the 1935 edition). G. Starushenko, The Principle of National Self-Determination in Soviet Foreign Policy (1962). Lenin, V.I., ‘The Socialist Revolution and the Right of Nations to Self-Determination’, in Hanna, G. (ed.), Lenin, Collected Works, 4th English edition (1964), Vol. 11, at 151Google Scholar. Selected Works of Mao Tse-Tung (1975). J.V. Stalin, The Problems of Leninism (1976).

15 See, e.g., Lachs, M., ‘The Law in and of the United Nations (Some Reflections on the Principle of Self-Determination)’, (1960–1961) 1 The Indian Journal of International Law 433 Google Scholar.

16 According to the Yearbook of the International Court of Justice, Judge Jessup had been ‘United States representative at various sessions of the Security Council and the General Assembly of the United Nations, 1948–1953’, as well as ‘Ambassador-at-Large from 1949-1953’. See (1960–1961) 15 Yearbook of the International Court of Justice 7. Judge Koo participated in the drafting of the UN Charter, and was head of the Chinese delegation to the First, Second, and second part of the Third Session of the UN General Assembly. Judge Gros was a member of the French delegation to various sessions of the United Nations General Assembly and Security Council. Judge Padilla Nervo was Mexico's delegate to the League of Nations Assembly, the UN General Assembly, and Security Council. See (1964–1965) 19 Yearbook of the International Court of Justice 10–22.

17 See W. Churchill, ‘The Sinews of Peace’, Westminster College, Fulton, Missouri, 5 March 1946, available at www.winstonchurchill.org/resources/speeches/1946-1963-elder-statesman/120-the-sinews-of-peace.

18 See D. Kimche, The Afro-Asian Movement: Ideology and Foreign Policy in the Third World (1973), 94; C. Andrew and V. Mitrokhin, The World was Going our Way: The KGB and the Battle for the Third World (2005), 1–24; O.A. Westad, The Global Cold War: Third World Interventions and the Making of our Time (2007), 49–57; Kattan, ‘Self-determination as ideology’, supra note 6.

19 Churchill, ‘The Sinews of Peace’, supra note 17.

20 See Westad, supra note 18, at 49.

21 See Kimche, supra note 18, at 1–13. Andrew and Mitrokhin, supra note 18, at 1–5. Kattan, ‘Self-determination as ideology’, supra note 6.

22 Westad, supra note 18, at 67–8. Andrew and Mitrokhin, supra note 18, at 5.

23 In 1960, Cameroon, Central African Republic, Chad, Congo (Brazzaville), Congo (Leopoldville), Dahomey, Gabon, Ivory Coast, Malagasy Republic, Mali, Niger, Nigeria, Senegal, Somalia, Togo, and Upper Volta, all became members of the United Nations. See ‘Growth in United Nations membership, 1945-present’, United Nations, available at www.un.org/en/sections/member-states/growth-united-nations-membership-1945-present/index.html#1960s.

24 See Lachs, supra note 15. See also, Kattan, ‘Self-determination as ideology’, supra note 6.

25 See Westad, supra note 18, at 131–43. See also, Kattan, ibid.

26 See W.J. Pomeroy (ed.), Guerrilla warfare and Marxism: a collection of writings from Karl Marx to the present on armed struggles for liberation and for socialism (1968). See also, E.B. Firmage, ‘The “War of National Liberation” and the Third World’, in John Norton Moore (ed.), Law and Civil War in the Modern World (1974), 304–47.

27 See Kattan, ‘Self-determination as ideology’, supra note 6.

28 The Decolonization Declaration, supra note 4, para. 1.

29 Ibid.

30 Ibid.

31 P. Spender, Self-determination: Statement by the Chairman of the Australian Delegation in the Third Committee of the General Assembly, 14 November 1952, at 3 (emphasis added). A copy of the speech is available in Rights of Peoples and Nations to Self-Determination, Series Number A1838, Control symbol 856.13.16. PART1, Australian National Archives.

32 See D. Lowe, Australian between Empires: The Life of Percy Spender (2010), 128. See also, D. Lowe, Menzies and the ‘Great World Struggle’: Australia's Cold War 1948-1954 (1999), 65–70.

33 See ‘Act to declare the Communist Party of South Africa to be an unlawful organization; to make provision for declaring other organizations promoting communistic activities to be unlawful and for prohibiting certain periodical or other publications; to prohibit certain communistic activities; and to make provision for other incidental matters’ (Assented to on 26 June 1950).

34 See Spender, P., ‘Statement on Foreign Policy by the Minister of External Affairs in the House of Representatives 9 March 1950’, reproduced in Spender, P. (ed.), Politics and a Man (1972), 307, at 310Google Scholar.

35 Spender, P., ‘Partnership with Asia’, (1951) 29 (2) Foreign Affairs 206 CrossRefGoogle Scholar.

36 Ibid., at 206–7.

37 Ibid., at 207.

38 Ibid., at 208–9.

39 See Lowe, supra note 32, at 123–41. See also, Crawford, J., ‘“Dreamers of the Day”: Australia and the International Court of Justice’, (2013) 14 Melbourne Journal of International Law 530 Google Scholar.

40 See E. Manela, The Wilsonian Moment. Self-Determination and the International Origins of Anticolonial Nationalism (2007), 2–3, 195–6.

41 See Waters, C., ‘After Decolonization: Australia and the Emergence of the Non-aligned Movement in Asia, 1954-55’, (2001) 12 Diplomacy & Statecraft 153, at 161–2CrossRefGoogle Scholar.

42 Spender, ‘Partnership with Asia’, supra note 35, at 211.

43 See Andrew and Mitrokhin, supra note 18, at 423–49. See also, C. Andrew, The Defence of the Realm: The Authorized History of MI5 (2010), 452 (writing that the KGB established a foreign intelligence arm on sub-Saharan Africa in 1960).

44 ‘S. Africa bans negro groups’, The Washington Post, 9 April 1960, A4; ‘S. African government bans two negro groups: situation is tense: arrests continue’, Times of India, 9 April 1960, 1; ‘South Africa seizes 100 and bans two groups: we'll go underground negro leader says’, Chicago Daily Tribune, 9 April 1960, 3.

45 Spender, P., ‘Law, Morality, and the Communist Challenge’, (1952) 46 Proceedings of the American Society of International Law at its Annual Meeting 190 CrossRefGoogle Scholar.

46 Ibid., at 190.

47 Ibid., at 194.

48 Ibid., at 194.

49 W.J. Hudson, Australia and the Colonial Question at the United Nations (1970), 175.

50 Department of External Affairs, ‘Self-determination and Communism’, Canberra, 8 August 1961, Circular Memorandum No. 79, Australian Archives: Series Number A1838, Control symbol: 563:6:13:1; Although the study paper was classified as Restricted, it was sent to overseas posts (especially those in Asia and Africa).

51 Ibid., at 8.

52 Ibid.

53 See N. Mandela, The Autobiography of Nelson Mandela: Long Walk to Freedom (2013), 335. See also Kattan, supra note 6.

54 P. Shaw, ‘Apartheid: Statement by the Australian Delegate’, 14 November 1952, in Personal papers of Sir Percy Spender, National Library of Australia, File 4875, Box 14, at 3.

55 Lowe, supra note 32, at 141.

56 Lowe, D., ‘Percy Spender, Minister and Ambassador’, in Beaumont, J. et al. (eds.) Ministers, Mandarins and Diplomats: Australian Foreign Policy Making, 1941-1969 (2003), 62, at 77Google Scholar.

57 Lowe, D., ‘Australia at the United Nations in the 1950s: The Paradox of Empire’, (1997) 51 Australian Journal of International Affairs 174 CrossRefGoogle Scholar.

58 Ibid., at 174.

59 Shaw, supra note 54, at 6.

60 A. Devereux, Australia and the Birth of the International Bill of Human Rights, 1946-1966 (2005), 110.

61 See P. Spender, ‘Statement made in Parliamentary Debates’, House of Representatives, Parliament of Australia, 23 February 1950, Hansard, at 5.

62 Quoted in S. Brawley, The White Peril: Foreign Relations and Asian Immigration to Australasia and North America 1919-78 (1995), 250.

63 Ibid., at 253.

64 Ibid., at 285.

65 Ibid., at 286–7.

66 See Rejoinder of South Africa, South West Africa Cases, [1966/Vol. V] ICJ Pleadings, supra note 5, at 195–6, para. 17.

67 G. Bolton, The Oxford History of Australia: Volume 5: 1942–1995. The Middle Way (2005), 190–4.

68 See Inward Telegram to Commonwealth Relations Office from Acting UK High Commissioner in South Africa 27 July 1957 (copied to Fitzmaurice, among others) in FO 371/129893, TNA.

69 See letter from Vincent Evans to Francis Vallat, 3 July 1957, FCO 371/129892, TNA.

70 See the memo (No. 335) dated 13 July 1957 from H. Gilchrist to Canberra, summarizing a conversation he had with Botha, Counsellor in charge of the International Organizations Division at the Foreign Ministry, regarding an Australian aide memoire seeking South Africa's support for Sir Percy's candidature at the International Court. International Court of Justice – Nomination of Australian Candidate (part 4) Series number A1838 Control symbol 852/18/4/1 PART 4, Australian National Archives.

71 See Lowe, supra note 56, at 85.

72 See ‘Statement on Foreign Policy by the Minister of External Affairs in the House of Representatives 9 March 1950’ reproduced in Spender, Politics and a Man, supra note 34, at 320 (emphasis added).

73 For a description of Australia's administration of Mandate New Guinea see S. Pedersen, The Guardians: The League of Nations and the Crisis of Empire (2015), 299–314. See also, D. Ryan, ‘Preparing for self-government? Black v. white in New Guinea’, The Observer, 7 February 1959, in ‘New Guinea and Nauru Trust Territories – Self-government’, Series Number A463, Control symbol 1957/1410 National Archives of Australia.

74 Self-determination: Statement by the Chairman of the Australian Delegation (Sir Percy Spender) in the Third Committee of the General Assembly 14 November 1952 at 5. A copy of the speech is available in Rights of Peoples and Nations to Self-Determination, Series Number A1838, Control symbol 856.13.16. PART1, Australian National Archives (emphasis added).

75 UN General Assembly Resolution 637 (VII) A, 16 December 1952, UN Doc. A/RES/7/637, (emphasis added). The Resolution was adopted by 40 in favour to 14 against with six abstentions. Australia, Belgium, Canada, Denmark, France, Iceland, Luxembourg, Netherlands, New Zealand, Norway, Sweden, South Africa, United Kingdom, and the United Sates voted against the Resolution.

76 Ibid.

77 See Common Art. 1(3) in UN General Assembly Resolution 2200A (XXI), ‘International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR) and Optional Protocol to the International Covenant on Civil and Political Rights’, 16 December 1966, UN Doc. A/RES/21/2200.

78 Draft International Covenants on Human Rights. Article 1 – self-determination. Statement in the Third Committee by the Chairman of the Australian Delegation (Sir Percy Spender), 29 October 1955, 4. Australian National Archives: Rights of Peoples and Nations to Self-determination, Series Number: A1838, Control symbol: 856:13:16 Part 2.

79 On the Soviet proposal see J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999), 101.

80 South West Africa Cases, [1966/Vol. I] ICJ Pleadings, supra note 5, at 3.

81 Ibid., at 22, para. H (emphasis added).

82 The full text of the Mandate for South West Africa is reprinted in J. Dugard, The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy between South Africa and the United Nations (1973), 72–4.

83 Richard Falk, who was later brought in as one of the counsels for Ethiopia and Liberia, suspects that Ernest Gross, the lead counsel, did not want to upset the US State Department where he had close ties, having previously worked for them. This might explain why the Decolonization Declaration was not referenced in the Memorial but it does not explain why the word ‘self-government’ was replaced with ‘self-determination’. Email correspondence between the author and Falk dated 3 August 2017 (on file with author).

84 See UN General Assembly Resolution 2145 (XXI), 27 October 1966, UN Doc. A/RES/21/2145, para. 1.

85 See Memorial of Ethiopia, South West Africa Cases, [1966/Vol. I] ICJ Pleadings, supra note 5, para. 5 (emphasis added).

86 See ‘Soviet initiative pleases Africans: Plea for Independence to Colonial People’, The Times of India, 27 September 1960, at 7; ‘Freedom for all colonies is very essential: Soviet premier urges UN Assembly debate’, The Times of India, 14 October 1960, at 7; J. Zullo, ‘Red liberation banner a lie, US tells UN’, Chicago Daily Tribune, 7 December 1960, at A4; ‘UN to Publicize Declaration’, The New York Times, 31 October 1961, at 5.

87 Memorial of Ethiopia, South West Africa Cases, [1966/Vol. I] ICJ Pleadings, supra note 5, at 198, para. 5.

88 See the Application Instituting Proceedings, ibid., at 20, para. F; and the Memorial of Ethiopia, ibid., at 197, para. 3.

89 See Rejoinder of South Africa, South West Africa Cases, [1966/Vol. V] ICJ Pleadings, supra note 5, Ch. IV, at 243, para. 3.

90 See ibid., at 48.

91 See the reply of Mr. Gross in South West Africa Cases, [1966/Vol. IX] ICJ Pleadings, supra note 5, at 249.

92 Ibid., at 248–9.

93 See W. Taubman, Khrushchev (2003), 475; V. Skierka, Fidel Castro: A Biography (2004), 96–8; R. Gott, Cuba: A New History (2004), 225; J.L. Anderson, Che Guevara: A Revolutionary Life (2010), 459–60.

94 See Castro, F., ‘Speech at the United Nations General Assembly, New York, September 26, 1960’, in Deutschmann, D. (ed.), Fidel Castro Reader (2007) 137, at 175Google Scholar.

95 In 1957, ‘Sir Percy had toured the nightclubs of Havana’. See Lowe, Australian between Empires, supra note 32, at 147.

96 See Kattan, ‘Decolonizing the International Court of Justice’, supra note 3, at 337–45.

97 Letter from Walter Crocker, Australian Embassy, The Hague to Sir Percy Spender, 23 September 1963 in the personal papers of Sir Percy Spender, National Library of Australia, File 4875, Box 14.

98 Letter from Basil Hone, Lloyd's Agent, Havana, Cuba to Sir Percy Spender, 23 August 1966 in the personal papers of Sir Percy Spender, National Library of Australia, File 4875, Box 14.

99 See P. Spender and J.M. Spender, Papers 1937–1978, MS 4875, National Library of Australia, Canberra.

100 Rejoinder of South Africa, South West Africa Cases, [1966/Vol. V] ICJ Pleadings, 198, para. 18.

101 Ibid., at 200, para. 22. The Rejoinder mentions the Central African Federation, Kenya, and the Congo.

102 F.W. de Klerk, The Last Trek – A New Beginning (2000), 38.

103 Ibid.

104 V.I. Lenin, The State and Revolution (1926), 194.

105 When Lenin was a young boy his favourite book was H. Beecher Stowe's Uncle Tom's Cabin (1852); see R. Service, Lenin: A Biography (2000), 43.

106 Andrew and Mitrokhin, supra note 18, at 423.

107 A. Davidson et al. (eds.), South Africa and the Communist International: A Documentary History (1919-1939), Vol. I (2003) 155, 194, quoted in Filatova, I., ‘The Lasting Legacy: The Soviet Theory of the National-Democratic Revolution and South Africa’, (2012) 64 South African Historical Journal 511 CrossRefGoogle Scholar.

108 Ibid., at 511.

109 Ibid., at 512, note 13.

110 Ibid., at 522.

111 The Freedom Charter, Adopted at the Congress of the People, Kliptown, on 26 June 1955, available at www.marxists.org/subject/africa/anc/1955/freedom-charter.htm.

112 Filatova, supra note 107, at 524.

113 E. Fein, ‘Soviets Move to Re-establish Ties With South Africa’, The New York Times, 27 February 1991.

114 See Lodge, T., ‘Secret Party: South African Communists between 1950 and 1960’, (2015) 67 South African Historical Journal 444 CrossRefGoogle Scholar.

115 Ibid., at 457–8.

116 Mandela had not been in the farm on the day of the arrest as he was already in prison. See J. Joffe, The State vs. Nelson Mandela: The Trial that Changed South Africa (2007), 13.

117 Filatova, supra note 107, at 515.

118 Ibid., at 528.

119 Joffe, supra note 116, at 41–2.

120 See, e.g., the special reports by The New York Times in ‘17 seized in raid in South Africa: Large part of hard core in resistance group held’, The New York Times, 13 July 1963, 3; ‘10 on trial again in South Africa: Men accused of sabotage renew attack on charge’, The New York Times, 26 November 1963, 18; ‘Charge outlined at Pretoria Trial’, The New York Times, 4 December 1963, 16. See also A. Sampson, ‘The time bomb ticks: The country's white minority seem more firmly in control than ever, but as independent Black Africa spreads southward, a day of crisis approaches’, The New York Times, 12 April 1964, SM11; see further ‘Lawyer arrested in Johannesburg: counsel in sabotage trial a champion of Africans’, The New York Times, 10 July 1964, 2.

121 Filatova, supra note 107, at 527, citing The Soviet News, 25 March 1966 (emphasis added).

122 The Australian Government has retained two wholly exempted folios – numbers 57 and 58 under Section 40(5) of the Archives Act 1983 from the following file: International Court of Justice – Ethiopia, Liberia v South Africa, Record Series: A432, Control symbol: 1966/3180. The reason given for the refusal to publish the folios is that their publication would ‘damage Australia's security, defence or international relations’ under Section 33(1) (a) of the Act. Among the grounds for refusal is the following: ‘Intelligence and / or information the disclosure of which could cause damage to Australia's international relations’. The file is dated from 1966. The author's request for an internal reconsideration of the refusal to publish the folios was rejected on 18 July 2014.

123 According to Westad, ‘the CIA kept warning about the increasing radicalization of the African majority – especially after the young Nelson Mandela and others got the African National Congress to adopt a “Program of Action” in 1949[.]’ See Westad, supra note 18, at 133.

124 There had been comparatively few studies on the influence of the Afro-Asian bloc on customary international law before 1966. One exception is O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966). See also, Dugard, C.J.R., ‘The Legal Effect of United Nations Resolutions on Apartheid’, (1963) 83 South African Law Journal 44 Google Scholar. R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963).

125 See the Reply of Ethiopia and Liberia, South West Africa Cases, [1966/Vol. IV] ICJ Pleadings, supra note 5, at 501–12.

126 Among the first states to sign ICERD on 7 March 1966 were Belarus, Poland, the Soviet Union and Ukraine. The United Kingdom ratified ICERD on 7 March 1969, Australia on 30 September 1975, and the US on 21 October 1994.

127 The ICJ would address the formation of customary international law in the North Sea Continental Shelf Cases and the Nicaragua judgments. See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, [1969] ICJ Rep. 3, at 43–4, paras. 74–7; Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] ICJ Rep. 14, at 98–101, paras. 186–90. On the status of self-determination, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep. 16, at 31, para. 53; Western Sahara, Advisory Opinion, [1975] ICJ Rep. 12, at 31–2, paras. 51–6; East Timor (Portugal v. Australia), Judgment, [1995] ICJ Rep. 90, at 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep. 136, at 171–2, para. 88.

128 South West Africa Cases, Second Phase, supra note 1, 67, at 171 (Judge Van Wyk, Separate Opinion) (emphasis added).

129 UN General Assembly Resolution 2145 (XXI), 27 October 1966, UN Doc. A/RES/21/2145.

130 Ibid., para. 1 (emphasis added).

131 Ibid., para. 3.

132 Ibid., para. 4.

133 See also South West Africa Cases (Judge Van Wyk, Separate Opinion), supra note 128, at 171.

134 See UN General Assembly Resolution 2200A (XXI), supra note 77.

135 South West Africa Cases, Second Phase, supra note 1, at 51–7 (Declaration of Judge Sir Percy Spender). See the comments by Crawford, supra note 39, at 536. Sir Percy was known to have an irascible personality. See, e.g., the comments by British officials in ‘Secret: Sir Percy Spender’, DO 35/10789, TNA.