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The Revocation of the Mandate for South West Africa in the Light of Recent Pronouncements of the International Court of Justice
Published online by Cambridge University Press: 21 May 2009
Extract
The revocation in 1966 of South Africa's Mandate for South West Africa must be seen as the final denunciation by the international community of the trust it had once placed in South Africa. Resolution 2145 (XXI) was the culmination of 20 years of unsuccessful efforts to remind that country of its international obligations, flowing from Article 22 of the Covenant and from the Mandate Agreement, which had as their primary object “the well-being and development” of the indigenous population under the guarantee of international supervision.
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References
1. Cf. especially the “dissenting opinions” of Judges Wellington Koo, Koretsky, Tanaka, Jessup, Padilla Nervo, Forster and Mbanefo, in South West Africa cases; Judgment of 18 July 1966, pp. 218–505.Google Scholar
See also:
Falk, R.A. The South West Africa cases; an appraisal – International Organization, Winter 1967, pp. 1–23;Google Scholar
Gross, E.A. The South West Africa case: what happened? Foreign Affairs, 10 1966, pp. 36–48;Google Scholar
Higgins, R. The International Court and South West Africa – International Affairs, 10 1966, pp. 573–599;Google Scholar
von Imhoff, Ch. Südwestafrika und das Haager Urteil/South West Africa and the Hague Judgment/ – Aussenpolitik, 09 1966, pp. 552–559;Google Scholar
Nordan, R.N. The South West Africa case – The World Today, 03 1966, pp. 122–130;Google Scholar
Pollock, A.J. The South West Africa cases and the jurisprudence of international law – International Organization, Autumn 1969, pp. 767–787;Google Scholar
van Raalte, E. Een belangrijk, maar teleurstellend internationaal arrest (An important, but disappointing, international judgment) – Internationale Spectator, 8 10 1966, pp. 1259–1277 and 8 11 1966, pp. 1483–1502.Google Scholar
2. I.C.J. Reports 1962, p. 343.Google Scholar
3. Cf. dissenting opinions of Judges Fitzmaurice and Spender, South West Africa cases. Preliminary Objection, p. 466, quoted by Falk, , op.cit., p. 15.Google Scholar
4. Judgment, para. 98.
5. Defined, inter alia, in Article 2 of the Mandate Agreement as the obligation “to promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory”.
6. Cf. Report of the twenty-first session of the General Assembly of the United Nations. Ministry of Foreign Affairs, No. 83, pp. 21 and 161.
7. Argentina, Austria, Canada, Cyprus, Denmark, Finland, France, Guatemala. Iraq. Ivory Coast. Laos, Madagascar, Mexico, New Zealand, Sweden, Switzerland, Turkey, United Kingdom and United States, Cf. United Nations document A/8382, p. 70, and add. 1–4.
8. France, too, has constantly proclaimed its opposition to any amendment of the Charter.
9. Botswana and Lesotho were absent.
10. General Assembly, twenty-first session, 27 October 1966, Official Record, p. 30.
11. International Legal Materials, 03 1971, p. 305.Google Scholar
12. General Assembly, twenty-first session, 27 October 1966, Official Record, pp. 6–7.
13. The United States voted for resolution 2145 (XXI) after its own sub-amendments, inter alia, to restrict the direct responsibility of the United Nations to maintaining the international status of South West Africa, were rejected.
14. Resolution 2248 (V-S); resolution 2325 (XXII); resolution 2403 (XXIII); resolution 2517 (XXIV); and resolution 2678 (XXV).
15. Cf. the Netherlands explanation of its abstention from voting on resolution 2248 (V-S). adopted by 85 votes to 2, with 30 abstentions “… a further step on the road towards the creation on paper of an administration for South West Africa, without first trying to secure the implementation of the first and vital part of the resolution of October 1966, namely access to South West Africa”.
Report on the Fifth Special Session, Ministry of Foreign Affairs, No. 87, p. 171.
16. Resolution 245 (1968); see also resolution 246 (1968): “taking into account”.
17. Resolution 264 (1969); see also resolution 269 (1969).
18. Resolution 276 (1970); see also resolution 283 (1970).
19. The United Kingdom abstained from voting. Also abstaining were Poland and the USSR, which were afraid that this first request of the Security Council tor an advisory opinion under Article 96, paragraph 1, of the Charter might create a precedent. It is not inconceivable that France voted in favour on this occasion because it expected the Court to support its position with regard to resolution 2145 (XXI).
20. Cf. the summary in the dissenting opinion of Judge Gros, I.C.J. Reports 1971. p. 333.Google Scholar
21. The 1966 and 1969 elections in the Security Council and the General Assembly had resulted in two more African judges being elected to the Court, making the geographical distribution of the seats as follows: Africa 3; Asia 3; Latin America 2; Western Europe 2; Easter Europe 1 and Great Powers (not including Taiwan, which at that time still “represented” China): 4.
22. I.C.J. Reports 1971, p. 31.Google Scholar
23. In the view of the Netherlands (cf. Jaarboek Buitenlandse Zaken (Yearbook of the Ministry of Foreign Affairs), 1971–72, Annex 6 pp. 23 ff.) the right to self-determination formed the basis of the mandates system as far back as 1920, and there was, therefore, no need to seek support in the subsequent evolution of the law on the question of the right to self-determination, more specifically with regard to the dependent countries and territories over which States – other than South Africa – might claim sovereignty.
Cf. also dissenting opinion of Judge Jessup, I.C.J. Reports 1966, p. 440Google Scholar: “Since 1945 at least, it has been the duty of a mandatory to prepare the peoples of the mandates to stand by themselves…”.
24. Cf. Article 22 of the Covenant: “…peoples not yet able to stand by themselves…”; Article 80 of the Charter, which speaks in as many words of “rights of peoples”; Article 1 of the Covenant on Economic, Social and Cultural Rights and Article 1 of the Covenant on Civil and Political Rights speak of “the right of peoples to self-determination”.
25. Cf. Higgins, Rosalyn (op. cit., p. 597)Google Scholar who is of the view that while, until 1966, the African countries pursued a legal pronouncement on the application of the Mandate, they in fact had the independence of the Territory as the end in view. There in no fundamental contradiction in this, though it could be observed that the traditional African endeavour to seen independence as the only acceptable result of the exercise of the right to self-determination is inconsistent with earlier and later pronouncements of the General Assembly (cf., for instance, resolution 2625 (XXV)).
What guarantees, however, would there have been for the effectual implementation of the right to self-determination, in view of South Africa's attitude to the question, if association and integration had not been ruled out as possible ways of implementing this right (cf. operative para. 2 of resolution 2145 (XXI), together with para. 53 of the Advisory Opinion)?
26. It is noteworthy that the Court – following the line of the General Assembly – keeps apartheid entirely separate from the discussion of resolution 2145 (XXI) and also from its establishment of which obligations South Africa, as Mandatory, failed to discharge in this connection. Resolution 2145 (XXI) mentions apartheid in the preamble only. Similarly, the Court does not mention apartheid in the same breath as South Africa's refusal to accept international supervision and to discharge its reporting obligation. Perhaps this separation – in both findings – was prompted not only by legal caution but also by the consideration that this particular violation of fundamental human rights is not unique in the world. Cf. Advisory Opinion, paras. 104 and 128.
27. Cf. Art. 22 of the Covenant: “safeguards … in the interests of the indigenous people”.
28. I.C.J. Reports 1971, pp. 46–47.Google Scholar
29. Jaarboek Buitenlandse Zaken 1971–72, pp. 23 ft.
30. Ibid, p. 28: “the decision of the Organized Community of States …”.
31. Cf. the confirming and elaboration by the League Council in the Mandate Agreement of what had been agreed among the Principal Allied and Associated Powers, which His Britannic Majesty, for and on behalf of the Government of the Union of South Africa, has agreed to accept.
32. I.C.J. Reports 1966, loc. cit., p. 266.Google Scholar
33. Cf. Jaarboek, , loc. cit., p. 26Google Scholar: “Now here the fundamental difference between the instruments establishing the mandates system on the one hand, and a treaty imposing a limitation on the exercise of sovereignty by a State party to it on the other hand becomes clearly apparent”.
34. Cf. Vienna Convention on the Law of Treaties, Art. 60, International Legal Materials, 07 1969, p. 701.Google Scholar
35. Cf. United Nations Conference on the Law of Treaties, Official Records, First Session 1968, p. 352. See also Art. 2, para. 2, of the Charter.
36. For the existence of this inherent power see also the pronouncement made at the time of the League of Nations by authoritative institutions and jurists and reproduced in I.C.J. Reports 1971, p. 48Google Scholar; Sep. Op. Dillard, , pp. 162–163Google Scholar; Sep. Op. Onyeama, , p. 145Google Scholar; Sep. Op. Nervo, Padilla, pp. 108–109.Google Scholar
37. Ars Aequi, XXI, 7, July-August 1972, p. 387.
38. I.C.J. Reports 1971, p. 49.Google Scholar
39. League of Nations practice had, however shown that the unanimity rule did not by any means operate as a right of veto for the mandatory. Cf. 1966 Judgment, para. 82: “Much trouble was taken to avoid situations in which the mandatory would have been forced to acquiesce in the view of the rest of the Council short of casting an adverse vote. The occasional deliberate absence of the mandatory from a meeting enabled decisions to be taken that the mandatory might have felt obliged to vote against if it had been present. This was part of the above-mentioned process for arriving at generally acceptable conclusions.”
40. Resolution 276 (1970), paras. 2 and 5; resolution 269 (1969), para. 5, and resolution 264 (1969), para. 3. I.C.J. Reports 1971, p. 53.Google Scholar
41. The full text reads: “to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration;”.
42. Cf. I.C.J. Reports 1971, p. 55.Google Scholar
43. This is evident from the proceedings of the Council respecting the submission and adoption of the resolutions concerned. Actually, the situation in Rhodesia, which the Security Council did qualify as a threat to peace, is not very different as far as racial discrimination and non-application of the right to self-determination are concerned.
44. Resolution 301 (1971) (France and United Kingdom abstaining) “agrees with the Court's opinion expressed in paragraph 133 of the Advisory Opinion: …”.
45. Belgium, S/PV. 1594, p. 21; Italy, S/PV. 1589, p. 47; and (less specifically) Japan, S/PV. 1589, p. 39.
The Netherlands also adopted the standpoint in its written statement to the Court, dated 28 August 1970, that Security Council resolution 276 (1970) is not legally binding on States. It did so on the ground that the operative part of the resolution is drafted in hortatory, not mandatory, terms (International Legal Materials, p. 298), a ground which the Court rejected in the Advisory Opinion (paras. 114 ff.) as regards the above-mentioned operative paragraphs 2 and 5 of the relevant Security Council resolution. On this question see Röling, , loc. cit., pp. 388–389.Google Scholar
46. In the Netherlands – under the Emigration Act as elaborated in the Emigration Assistance Scheme (reproduced in Schuurman and Jordens, No. 122) – subsidies from public funds are payable in the event of emigration to “countries outside Europe”. There is no statutory provision or regulation excluding particular non-European countries from this rule. Whether this is nevertheless so in practice is apparent only if the Minister of Social Affairs refuses an application for a subsidy.
47. Because of the de facto administrative unity of South Africa and Namibia it will not be easy to establish this before emigration takes place. This is an additional reason for discontinuing government subsidies fro emigration to South Africa.
48. Article 1 of the Dental Agreement between the Netherlands and South Africa (Tractatenblad, 1969, No. 120), signed at The Hague on 2 July 1969, but not yet in force, contains the provision that the expression “Republic of South Africa” includes “the Republic of South Africa and any other territory within the jurisdiction of the Republic on the date of signature of this Agreement”. Since South Africa takes the view that the expression “any other territory, etc.” includes South West Africa, this provision implies that the Agreement can also be applied to the admission of Netherlands dentists to Namibia and their registration in that country. During the written discussion by the Tweede Kamer (Lower House) (cf. Tweede Kamer. 1970–71 session, item 10509, Nos. 1 to 7, inclusive) no objection was made to this article.
49. I.C.J. Reports 1971, p. 31.Google Scholar