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Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases

Published online by Cambridge University Press:  09 September 2014

Victor KATTAN
Victor KATTAN*
Affiliation:
National University of Singapore, Singaporevkattan@nus.edu.sg
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Abstract

This paper revisits the controversy of Judge Sir Muhammad Zafrulla Khan's recusal from the South West Africa cases using new information from the National Archives in Australia, India, South Africa, and the United Kingdom, including an unpublished manuscript written by the Australian judge and the Court's President Sir Percy Spender. Sir Percy's manuscript, which addresses the “recusal” controversy and the 1966 Decision, raises uncomfortable questions about the politics of international law within the Court in the 1960s. In many ways, Judge Zafrulla's struggle with Sir Percy at the ICJ can be analogized to the struggle of non-European peoples to self-determination. The internal “legal” struggle within the Court paralleled the larger “political” struggle outside the Court. Zafrulla would win the struggle, however, when as President of the Court during the 1971 Advisory Opinion on Namibia he would contribute to decolonization, a possibility he foresaw when he was forced to recuse himself.

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Articles
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Asian Journal of International Law , Volume 5 , Issue 2 , July 2015 , pp. 310 - 355
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

LL.B Hons (Brunel), LL.M (Leiden), PhD (SOAS), Postdoctoral Fellow, National University of Singapore. A draft of this paper was presented to a panel on the history of international law chaired by Professor Antony Anghie at the 4th Biennial Asian Society of International Law Conference hosted by the Indian Society of International Law in New Delhi on 15 November 2013. An earlier draft of the paper was presented to the Law Faculty of the National University of Singapore at the Faculty's Research Seminar Series on 30 October 2013. The presentation was chaired by Simon Chesterman, the Dean of the Law School. The paper has been culled from a book manuscript and is based on research undertaken in the National Archives UK in Kew, the British Newspaper Library in Colindale, London, the library of the Palais de Nations in Geneva, the National Archives of India, and by correspondence with the National Archives of the Republic of South Africa. The manuscript also benefits from a draft manuscript that Judge Sir Percy Spender wrote of his recollections of the recusal controversy in 1965 just prior to the International Court of Justice's decision in the second phase of the South West Africa cases, but which he never published. I would like to thank Professor David Lowe, Director of the Alfred Deakin Research Institute at the Deakin University of Australia, for sharing Sir Percy's manuscript with me, which is available with the rest of Sir Percy's papers at the National Library of Australia in Canberra. I would like to also thank Antony Anghie, Zabeth Botha, Anthony Carty, Rohit De, John Dugard, Stephen Girvin, Jacques Obserson, Qudsi Rasheed, Arthur Rovine, Kirsten Sellars, Prabhakar Singh, Michiel Spanjaart, Arun Kumar Thiruvengadam, Sara Wharton, and two anonymous reviewers, for their help, suggestions, and feedback.

References

1. Email correspondence between Arthur W. Rovine and the author dated 27 November 2013.

2. See International Status of South-West Africa, Advisory Opinion, [1950] I.C.J. Rep. 128; South-West Africa—Voting Procedure, Advisory Opinion of 7 June 1955, [1955] I.C.J. Rep. 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956, [1956] I.C.J. Rep. 23; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, [1962] I.C.J. Rep. 319; South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6; and 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] I.C.J. Rep. 16.

3. HIGGINS, Rosalyn, “The International Court of Justice and Africa” in Rosalyn HIGGINS, Themes and Theories: Selected Essays, Speeches, and Writings in International Law (Oxford: Oxford University Press, 2009)Google Scholar, 1056 at 1071.

4. See DUGARD, John, “The South West Africa Cases, Second Phase, 1966” (1966) 83 South African Law Journal 429 at 431Google Scholar; HIGGINS, Rosalyn, “The International Court and South West Africa: The Implications of the Judgment” (1966) 42 International Affairs 573 at 586Google Scholar; REISMAN, William M., “Revision of the South West Africa Cases” (1966) 7 The Virginia Journal of International Law 1 at 55Google Scholar; CHENG, Bin, “The 1966 South-West Africa Judgment of the World Court” (1967) 20 Current Legal Problems 181 at 196−199Google Scholar; LANDIS, Elizabeth S., “The South West Africa Cases: Remand to the United Nations” (1967) 52 Cornell Law Quarterly 627 at 653Google Scholar; FALK, Richard, “The South West Africa Cases: An Appraisal” (1967) 21 International Organization 1 at 11Google Scholar, note 28; GORDON, Edwardet al., “The Independence and Impartiality of International Judges” (1989) 83 Proceedings of the Annual Meeting of the American Society of International Law 508 at 510Google Scholar.

5. The best analysis is provided in DUGARD, John, The South West Africa / Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (Berkeley, CA: University of California Press, 1973)Google Scholar. But see also SLONIM, Soloman, South West Africa and the United Nations: An International Mandate in Dispute (Baltimore, MD: Johns Hopkins University Press, 1973)Google Scholar.

6. See the entry for “Article 24” by Sir Robert JENNINGS in Andreas ZIMMERMAN, ed., The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006), at 422, note 27. See also the entry for “Article 24” by Philippe COUVREUR in the updated 2012 edn. at 459, note 26.

7. See Legal Consequences for States, supra note 2.

8. See HUSSAIN, Ijaz, “Sir Zafrulla Khan—The Silent Judge” (1985) 23 Archiv Des Völkerrechts 478 at 482Google Scholar.

9. Ibid.

10. Regarding Zafrulla's speech on Finland, see speech by Sir Muhammad Zafrulla Khan (India) in the Text of the Debates of the Twentieth Session of the Assembly of the League of Nations, No. 3, Geneva, Friday, 15 December 1939 at 27. Zafrulla's speeches on Palestine are addressed below. I address his speeches on Kashmir in my book manuscript.

11. On Zafrulla's popularity in the Arab world, see BURKE, S.M., Pakistan's Foreign Policy: An Historical Analysis (Oxford: Oxford University Press, 1990) at 142Google Scholar. Regarding the persecuting of the Ahmadiyya community, see KAUSHIK, Surendra Nath, Ahmadiyya Community in Pakistan: Discrimination, Travail and Alienation (New Delhi: South Asian Publishers, 1996) at 30Google Scholar (explaining that two mock funerals of Zafrulla took place at a demonstration in Gujranwala, where the demonstrators called on the government to sack Zafrulla).

12. Burke, , ibid., at 143Google Scholar.

13. Ibid. (paraphrasing a statement made by Alan Campbell-Johnson, Mountbatten's press attaché).

14. This is to a certain extent true. However, Zafrulla did deliver some of the judgments on the Federal Court which ran to dozens of pages. His Judgment in the case of Hulas Narain Singh v. The Province of Bihar ran to almost twenty pages. This case is reported in The Indian Law Reports, Patna Series, Volume XXI, Federal Court (1942) at 521, with Zafrulla's Judgment appearing at 525−44. See also Zafrulla's Judgments in Hulus Narain Singh v. Deen Mohammed Singh reported in The Indian Law Reports, Patna Series, Volume XXII, Federal Court, (1943), 428 at 429−33. See further Zafrulla's Judgment in The Indian Law Reports, Patna Series, Vol. XXIII, Federal Court, (1944), 517 at 518−28.

15. Hussain, , supra note 8 at 483Google Scholar.

16. Ibid., at 492.

17. On the knighthood, see The London Gazette, 19 February 1935, 1175. Zafrulla did not generally use the term “Sir” when he was head of the UN General Assembly in the early 1960s. It was not used in the UN Blue Book and does not appear before his name when UN debates are reported. See the interview with Khan in “UN Assembly Head at Home Equally in Orient or West”, The Blade, Toledo, Ohio (20 September 1962) at 33. However, Zafrulla did use the title “Sir” when he was a judge at the ICJ.

18. See MACAULAY, Thomas Babington, “Education for India” in Philip D. CURTIN, ed., Imperialism (London: MacMillan, 1972)Google Scholar, 182 at 190.

19. DE, Rohit, “Emasculating the Executive: The Federal Court and Civil Liberties in Late Colonial India: 1942−1944” in T. HALLIDAY et al., eds., Fates of British Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (Cambridge: Cambridge University Press, 2012)Google Scholar, 59 at 74.

20. SETALVAD, Motilal C., My Life: Law and Other Things (New Delhi: Universal, 1970, reprinted 2013) at 87Google Scholar.

21. Churchill told Zafrulla that he had given him “the two most difficult hours before this committee”. See The Reminiscences of Sir Muhammad Zafrulla Khan: Interviews Conducted by Professor Wayne Wilcox and Aisle T. Embree for Columbia University with an Introduction by Professor Pervez Perwazi (Maple, Ontario: Oriental Publishers, 2004) 53−6.

22. RASTOGI, B.C., “Alignment and Non-Alignment in Pakistan's Foreign Policy 1947−1960” (1961) 3 International Studies 159 at 167Google Scholar.

23. See inward telegram to Commonwealth Relations Office, 28 March; the letter from Gladwyn Jebb to Sir William Strang, 15 December 1951; and the Extract from Sir Mohammed Zafrulla Khan's Speech in the Plenary Session on Thursday, 13 December 1951, FO 371/101197. TNA. See also Privy Counsellorships: Suggested Appointment of Sir Zafrulla Khan (1948−9), DO 142/281. TNA.

24. See SINGH, Anita Inder, “Divergent World-Views, Divergent Strategies: How America Took Britain's Place in Pakistan, 1947−54” (1992) 6 Contemporary Record 474CrossRefGoogle Scholar.

25. Unfortunately, Inder Singh does not examine the role of Zafrulla in securing US backing and military support in her paper (ibid.), even though he was Pakistan's Foreign Minister from 1947 to 1954.

26. There are substantial records in the Foreign Office files on this election. Zafrulla's candidacy led to more debate in the Foreign Office than any other candidate. See “Candidature of Sir Zafrulla Khan for the International Court of Justice”, Secret, 9 July 1954, DO 35/7124. TNA.

27. See the confidential telegram sent from the Foreign Office in London to the United Kingdom Delegation to the United Nations in New York dated 19 November 1954 signed by Kelvin White on behalf of P.E. Ramsbotham in “Election of the Successor to the Late Sir Benegal Rau as Judge at the ICJ”, 14 December 1954, DO 35/7123. TNA.

28. Ibid., at para. 3.

29. Ibid.

30. See the surprise expressed in several letters and memos in DO 35/7124. TNA.

31. Britain supported Justice Pal despite his dissentient judgment in the Tokyo Tribunal in which he criticized the US bombings of Hiroshima and Nagasaki, writing that he did

not perceive much of a difference between what the German Emperor is alleged to have announced during the First World War in justification of atrocious methods directed by him in the conduct of that war and what is being proclaimed after the Second World War in justification of these inhuman blasts.

He later compared the actions of the Americans in dropping the atom bombs to those of the Nazi leaders before observing that nothing like this could be attributed to the Japanese war leaders. See International Military Tribunal for the Far East Dissentient Judgment of Justice R. B. Pal. (Calcutta: Sanyal & Co., 1953), 63−4 and at 621. In the Appendix to this publication there is also a “Special Edition of the Atomic Destruction” accompanied by photographs of Hiroshima and Nagasaki after the bombings. Unsurprisingly, the US government was opposed to Pal because of this dissentient judgment.

32. See letter from C.L.S. Cope, Foreign Office, 23 September 1954, DO 35/7124. TNA.

33. See PREM 8/381. TNA. Zafrulla received sufficient votes in the UN General Assembly (27) but only got four votes in the Security Council. See UN Doc. A/32 (6 February 1946). There is a copy of this document in DO 35/1216. TNA. See also the record in the Indian National Archives 14 (18) PWR 146, International Court—Electing judges—United Nations—to the—(Ministry of External Affairs).

34. “The Election of Judges to the International Court of Justice” (very confidential) by W.E. Beckett, 19 January 1946, DO 35/1216. TNA.

35. See “Candidature of Sir Zafrulla Khan for the International Court of Justice”, supra note 26 at para. 6(iv).

36. See the Letter from the United Kingdom Delegation to the United Nations to the Foreign Office, 9 October 1954, DO 35/7124. TNA.

37. Ibid.

38. Ibid.

39. In my book manuscript, I suggest that these individuals were Judge Jessup and Stanislas Acquarone, the Registrar of the Court. Zafrulla was particularly close to the latter and went on holiday with him.

40. The website of the ICJ lists all the members of the Court and whether they were President or Vice President, online: <http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=2>.

41. KHAN, Muhammad Zafrulla, Servant of God: A Personal Narrative (Old Woking: Unwin Brothers, 1983) at 288Google Scholar. See also MERRILLS, J.G., Judge Sir Gerald Fitzmaurice and the Discipline of International Law (The Hague: Kluwer Law International, 1998) at 15Google Scholar.

42. See South West Africa, Second Phase, supra note 2.

43. The two other judges were Padilla Nervo of Mexico and Morozov of the USSR. 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] I.C.J. Rep. 16 at 18, para. 9; and Orders No. 1, 2, and 3 of 26 January 1971, [1971] I.C.J. Rep. 1971 at 3−9.

44. Khan, , supra note 41 at 165−182Google Scholar.

45. See LLOYD, Lorna, “A Family Quarrel: The Development of the Dispute over Indians in South Africa” (1991) 34 The Historical Journal at 703CrossRefGoogle Scholar. For the UN resolution on Treatment of Indians in the Union of South Africa, see The United Nations and Apartheid, 1948−1994, with an introduction by Boutros BOUTROS-GHALI, Secretary-General of the United Nations (New York: United Nations Department of Public Information, 1994) at 221. For further background, see MAZOWER, Mark, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press, 2009), 171−183Google Scholar at 178−9.

46. See Admission of a State to the United Nations, (Charter, Art. 4), Advisory Opinion, [1948] I.C.J Rep. 57; Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J Rep. 174; Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, [1950] I.C.J Rep. 4; and the South West Africa Advisory Opinions and cases, supra note 2.

47. CRAWFORD, James, The Creation of States in International Law (Oxford: Oxford University Press, 2006) at 580Google Scholar.

48. See STEVENS, Richard P., “Smuts and Weizmann: A Study in South African-Zionist Cooperation” in Ibrahim ABU-LUGHOD and Baha ABU-LABAN, eds., Settler Regimes in Africa and the Arab World: The Illusion of Endurance (Wilmette, IL: Medina University Press International, 1974), 173Google Scholar.

49. A photostatic copy of the original Balfour Declaration is reproduced in MOORE, John Norton, ed., The Arab-Israeli Conflict, Volume III: Documents (Princeton, NJ: Princeton University Press, 1977) at 885Google Scholar. According to the first British census in Palestine conducted in 1918, only seven percent of the population was Jewish (58,728). The remaining ninety-three percent of the population were Christian (70,429) and Muslim (611,098). See McCARTHY, Justin, The Population of Palestine: Population History and Statistics of the Late Ottoman Period and the Mandate (New York: Columbia University Press, 1990)Google Scholar, Table 2.2 at 26. Even after twenty-five years of the British Mandate (1922−48), when after successive waves of Jewish immigration, the population of Jews in Palestine in proportion to Arabs was altered, Arabs still constituted a majority of the population. In 1947, the population of Palestine was fifty-five percent Arab, and they remained in ownership of eighty percent of the land. See BASSIOUNI, M. Cherif, “The ‘Middle East’: The Misunderstood Conflict” in John Norton MOORE, ed., The Arab-Israeli Conflict, Volume II: Readings (Princeton, NJ: Princeton University Press, 1977)Google Scholar, 175 at 186. See also the population statistics for Jewish immigration in KATTAN, Victor, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891−1949 (London: Pluto Press, 2009) at 11−12Google Scholar.

50. See South Africa Act, 1909, 9 Edward VII. Chapter 9. An Act to Constitute the Union of South Africa, 20 September 1909. For academic analysis and historical context, see THOMPSON, L.M., The Unification of South Africa 1902−1910 (Oxford: Clarendon Press, 1960)Google Scholar; LEGASSICK, Martin, “British Hegemony and the Origins of Segregation in South Africa, 1901−12” in William BEINART and Saul DUBOW, eds., Segregation and Apartheid in Twentieth-Century South Africa (London: Routledge, 1995), at 43Google Scholar; and MAGUBANE, Bernard Makhosezwe, The Making of a Racist State: British Imperialism and the Union of South Africa 1875−1910 (Trenton: Africa World Press, 1996)Google Scholar.

51. See art. 22 of the Covenant of the League of Nations, (1920) 1 League of Nations Official Journal 9.

52. Ibid.

53. Ibid.

54. In Palestine, the British army put down a three-year revolt in which the Palestinian Arabs sought independence from Britain. By 1939, approximately 5,000 Palestinian Arabs had been killed, 10,000 were wounded, and 5,670 were detained. This effectively meant that over ten percent of the Palestine adult male Arab population had been killed, wounded, imprisoned, or exiled. See Appendix IV in KHALIDI, Walid, ed., From Haven to Conquest: Readings in Zionism and the Palestine Problem Until 1948 (Washington, DC: Institute of Palestine Studies, 1987) at 846−849Google Scholar.

55. Although due to the Soviet veto, Jordan did not join the UN until 1955.

56. Ad Hoc Committee on the Palestinian Question, Report of Sub-Committee 1, UN Doc. A/AC.14/34 (19 November 1947).

57. Ad Hoc Committee on the Palestinian Question, Report of Sub-Committee 2, UN Doc. A/AC.14/32 (11 November 1947). See also Ad Hoc Committee on the Palestinian Question, Summary Records of the Thirty-First and Thirty-Second Meetings, UN Docs. A/AC.14/SR.31 and SR.32 (24 to 25 November 1947). For academic criticism of the composition of the subcommittees, see ELARABY, Nabil, “Some Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements” (1968) 33 Law and Contemporary Problems at 97CrossRefGoogle Scholar.

58. As observed by FRASER, T.J., Partition in Ireland, India, and Palestine: Theory and Practice (London: MacMillan, 1984) at 176CrossRefGoogle Scholar.

59. 26, 28, and 29 November 1947.

60. See (1947−48) Yearbook of the United Nations at 241.

61. See the verbatim debate of the Hundred and Twenty-Sixth Plenary Meeting, UN Doc. A/PV.126 (28 November 1947) where Zafrulla gave the opening address.

62. Zafrulla was referring to the 1915 Hussein-McMahon correspondence between the British High Commissioner in Cairo and the Sherif of Mecca. See Kattan, supra note 49 at 98−116.

63. See Kattan, , supra note 49 at 256Google Scholar. Palestine had admitted 287,063 Jewish refugees between the years 1933 and 1946, and a further 118,378 between 1920 and 1932. This was despite Palestine's small size and limited resources, and despite the fact that the Palestinian Arabs were in open conflict with the Zionist movement over Palestine's political destiny. In contrast, the US, despite its size and resources, had only admitted 188,648 Jewish refugees between 1933 and 1946. Likewise, the UK only admitted 65,000 Jewish refugees, Canada 12,000 Jewish refugees, Australia 8,500 Jewish refugees, and South Africa 8,000 Jewish refugees. See Ad Hoc Committee on the Palestinian Question, Report of Sub-committee 2, supra note 57 at 28, para. 44. When survivors of the Holocaust were asked for their preferences as regards the countries in which they would like to seek asylum and refuge, Palestine was often their last choice. Most Austrian and German Jewish refugees, for instance, preferred to stay in Europe or go to the US. These were the findings contained in a report submitted by Sir Herbert Emerson, the High Commissioner for Refugees to the League of Nations at its final session in Geneva in April 1946. See International Assistance to Refugees: Report Submitted by Sir Herbert Emerson, G.C.I.E., K.C.S.I., C.B.E., High Commissioner for Refugees, Annex 20, 11 March 1946 (presented at Geneva session in April 1946), in League of Nations, Official Journal, Special Supplement No. 194, Records of the Twentieth (Conclusion) and Twenty-First Ordinary Sessions of the Assembly, Text of the Debates at the Plenary Meetings and Minutes of the First and Second Committees, Final Assembly, Geneva, 1946, 228−35 at 233.

64. See Zafrulla's speech at the Hundred and Twenty-Sixth Plenary Meeting, supra note 61.

65. The UN Partition Plan was adopted by UN General Assembly Res. 181 (II), 29 November 1947.

66. See UN General Assembly Res. 1514, 14 December 1960. Para. 6 provides: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”

67. The states that voted against partition included Afghanistan, Cuba, Egypt, Greece, India, Iran, Iraq, Lebanon, Pakistan, Saudi Arabia, Syria, Turkey, and Yemen.

68. In his autobiography, Jawaharlal Nehru recalls the following memories from his childhood, which bear an uncanny resemblance to the way in which non-Europeans were treated in South Africa:

It was a notorious fact that whenever an Englishman killed an Indian he was acquitted by a jury of his own countrymen. In railway trains compartments were reserved for Europeans, and, however crowded the train might be and they used to be terribly crowded no Indian was allowed to travel in them, even though they were empty. Even an unreserved compartment would be taken possession of by an Englishman, and he would not allow any Indian to enter it. Benches and chairs were also reserved for Europeans in public parks and other places.

See NEHRU, Jawaharlal, An Autobiography (Delhi: Penguin Books India, 2004 [1936]) at 7Google Scholar.

69. As Jawaharlal Nehru put it, the Zionists “preferred to take sides with the foreign ruling power, and have thus helped it to keep back freedom from the majority of the people”. See NEHRU, Jawaharlal, Glimpses of World History (New Delhi: Penguin, 2004) at 764−765Google Scholar. In a similar vein, Mahatma Gandhi complained that “Palestine belongs to the Arabs in the same sense that England belongs to the English or France to the French”. “It would be a crime against humanity”, he added, “to reduce the proud Arabs so that Palestine can be restored to the Jews partly or wholly as their national home.” See GANDHI, Mahatma K., “The Jews in Palestine” Harijan (26 November 1938)Google Scholar.

70. As UNSCOP admitted in 1947, “the Arab population is and will continue to be the numerically preponderant population in Palestine”. Despite the numerous attempts employed by the Zionist Organization to acquire Arab lands through various forms of purchase, as late as 1946, eighty-five percent of the land held in private ownership was still Palestinian. See Official Records of the Second Session of the General Assembly, Supplement No. 11, United Nations Special Committee on Palestine, Report to the General Assembly, Volume 1, Lake Success, New York, 1947, UN Doc. A/364 (3 September 1947), chapter II at paras. 162 and 164.

71. On the Radcliffe Boundary Commission, see the arguments of the Muslim League by Sir Muhammad Zafrulla Khan reproduced in The Partition of the Punjab 1947: A Compilation of Official Documents (Lahore: National Documentation Centre, 1983) at 252. For academic analysis, see CHESTER, Lucy P., Borders and Conflict in South Asia: The Radcliffe Boundary Commission and the Partition of the Punjab (Manchester: Manchester University Press, 2009)Google Scholar.

72. Khan, , supra note 41 at 231Google Scholar.

73. According to Ijaz Hussain, some of the cases whose decisions were drafted by Zafrulla in this period included: Advisory Opinion in the Admissibility of Hearings (along with Judge Read of Canada); Judgment in Certain Norwegian Loans (along with Judge Winiarski of Poland); Judgments in The Right of Passage over Indian Territory (preliminary objections, along with Judge Lauterpacht of Great Britain; Merits (along with Judge Basdevant); Judgment in The Sovereignty over Certain Frontier Land (along with Judge Sir Percy Spender of Australia); and Judgment in The Arbitral Award Made by the King of Spain on 23 December 1906 (along with Judge Wellington Koo of China). See Hussain, , supra note 8 at 484Google Scholar. Hussain cites from the Urdu version of Zafrulla's autobiography. The English translation does not mention his role in these cases.

74. South-West Africa—Voting Procedure, Advisory Opinion of 7 June 1955, [1955] I.C.J. Rep. 67. Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956, [1956] I.C.J. Rep. 23 (voting with the majority in both cases).

75. Hussain, , supra note 8 at 484Google Scholar.

76. For the text of the Mandate for South West Africa, see Dugard, , supra note 5 at 72Google Scholar.

77. Para. 7 of art. 22 of the Covenant of the League of Nations provided that: “In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.”

78. See LOVELAND, Ian, By Due Process of Law? Racial Discrimination and the Right to Vote in South Africa 1855−1960 (Oxford: Hart, 1999)Google Scholar at 9, 19−20, 36−7, 70−1, and 115.

79. See Lloyd, , supra note 45Google Scholar, and Mazower, , supra note 45Google Scholar.

80. See HASAN, K. Sarwar, Pakistan and the United Nations (New York: Manhattan Publishing Company, 1960) at 212−222Google Scholar.

81. Ibid., at 215−16.

82. Union of South Africa—South West Africa—United Nations. Proposal of the Government of the—to incorporate—in the Union. File No. 6(12)-CC/46, 1946. Indian National Archives.

83. See UN General Assembly Res. 338 (IV), 6 December 1949.

84. International Status of South-West Africa, supra note 2 at 137.

85. Ibid., at 143.

86. Ibid., at 138.

87. South-West Africa—Voting Procedure, supra note 2 at 78. Admissibility of Hearings of Petitioners by the Committee on South West Africa, supra note 2 at 32.

88. D'AMATO, Anthony A., “Legal and Political Strategies of the South West Africa Litigation” (1967) 4 Law in Transition Quarterly 8 at 16Google Scholar.

89. Cheng, , supra note 4 at 183Google Scholar.

90. Art. 7(2) provides:

The Mandatory agrees that, if any dispute whatsoever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.

91. International Status of South-West Africa, supra note 2 at 143.

92. See South West Africa Cases (Ethiopia v. Union of South Africa), Order of 20 May 1961, [1961] I.C.J. Rep. 13.

93. Although art. 1(2) UN Charter makes reference to “respect for the principle of equal rights and self-determination of peoples”, and although art. 7 of the Universal Declaration of Human Rights (UDHR) has a provision on non-discrimination, the exact contents of these provisions were still unclear in the 1960s. Moreover, it was still questioned whether and to what extent the UDHR reflected customary international law. The applicants argued that there had evolved over the years a norm of non-discrimination as a result of international undertakings in the form of principles, conventions, declarations, judicial decisions, state practice, and general principles of law as recognized in various constitutional and statutory provisions. In the end the Court never addressed the argument as to whether a norm of non-discrimination had emerged in customary international law, although Judge Tanaka did address the issue in his Dissenting Opinion. See McKEAN, Warwick, Equality and Discrimination under International Law (Oxford: Clarendon Press, 1983), 260−277Google Scholar. In the early 1960s, the principles which later found expression in the International Convention on the Elimination of Racial Discrimination were still developing; they were most likely the lex ferenda, rather than the lex lata. Moreover, Australia did not ratify this convention until 1975, the US until 1994, and South Africa until 1998.

94. For instance, photographs from the early 1960s show demonstrators in the US holding banners declaring that “race mixing is Communism”. On the Cold War politics of racial discrimination, see LAUREN, Paul Gordon, Power and Prejudice: The Politics and Diplomacy of Racial Discrimination (Boulder, CO: Westview Press, 1996), 218−221Google Scholar. See also DUDZIAK, Mary L., Cold War Civil Rights: Race and the Image of American Democracy (Princeton, NJ: Princeton University Press, 2011)Google Scholar.

95. The treason trial lasted until 1961. For Mandela's recollections and the political context of the trial, see Nelson MANDELA, The Autobiography of Nelson Mandela: Long Walk to Freedom (New York: Back Bay Books, 2013 edn., first published 1994) at 307−60. See also, BLOM-COOPER, L.J., “The South African Treason Trial: R. v Adams and Others” (1959) 8 International and Comparative Law Quarterly 59CrossRefGoogle Scholar.

96. Mandela, , ibid., at 335Google Scholar.

97. Ibid., at 377.

98. Ibid., at 326.

99. Ibid., at 328.

100. Ibid., at 356.

101. See JOFFE, Joel, The State vs. Nelson Mandela: The Trial that Changed South Africa (Oxford: Oneworld Publications, 2007) at 13Google Scholar.

102. On Zafrulla's trips to Africa and the USSR, see Khan, , supra note 41 at 247−272Google Scholar. Zafrulla does not mention that he had been approached to see if he could sit as Judge ad hoc in the first phase of the South West Africa cases in his autobiography.

103. See “Zafrulla Khan Is Elected President of the UN” The Straits Times (20 September 1962) at 2.

104. UN General Assembly Res. 1514 (XV), 14 December 1960.

105. Ibid.

106. See BOWRING, Bill, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Abingdon: Routledge, 2013) at 88Google Scholar.

107. The Question of Morocco: Report of the First Committee (A/2526), 455th Plenary Meeting, 3 November 1953, UN General Assembly, Eighth Session, Official Records, UN Doc. A/PV.455, at 262.

108. Ibid., at 263−4.

109. LOWE, David, “Australia at the United Nations in the 1950s: The Paradox of Empire” (1997) 51 Australian Journal of International Affairs 171 at 175−176Google Scholar.

110. HUDSON, W.J., Australia and the Colonial Question at the United Nations (Sydney: Sydney University Press, 1970) at 95Google Scholar.

111. Case Concerning Right of Passage Over Indian Territory (Merits), Judgment of 12 April 1960, [1960] I.C.J. Rep. 6.

112. Khan, , supra note 41 at 230Google Scholar.

113. See Right of Passage case, supra note 111 at 46. Judge Winiarski's Joint Dissenting Opinion with Judge Badawi did not concern this particular point.

114. See Dissenting Opinion of Judge Sir Percy Spender, ibid., 97 at 110.

115. Ibid., at 110−14.

116. Ibid., at 114−15.

117. GOODRICH, Leland, ed., Charter of the United Nations: Commentary and Documents (New York: Columbia University Press, 1969) at 55Google Scholar.

118. “Queen Knights Percy Spender, Envoy Here” Washington Post (6 June 1951) at 4. The knighthood would have been awarded by the Queen in right of Australia on the recommendation of the prime minister of Australia.

119. LOWE, David, Australian Between Empires: The Life of Percy Spender (London: Pickering and Chatto, 2010) at 156Google Scholar.

120. See Lauren, , supra note 94 at 219Google Scholar.

121. See FRIED, Richard, Nightmare in Red: The McCarthy Era in Perspective (Oxford: Oxford University Press, 1990)Google Scholar. See also Lowe, , supra note 119 at 153Google Scholar.

122. On America's support for Zafrulla, see Note for the Record, 29 July 1954, DO 35/7123. TNA. (In a meeting at the Foreign Office, Zafrulla explained that the Americans had put his name forward for candidacy to the ICJ and had undertaken to speak to Cuba and Brazil. Mr Romulo of the Philippines (a close friend of Zafrulla's from his days at the UN supporting the Palestinians) was campaigning for him, the Afghans were willing to support him, as were the Scandinavian countries, and all of the Commonwealth countries supported Zafrulla except for the UK. France was considering supporting Zafrulla “despite his speeches about Tunisia”.)

123. Lowe, , supra note 119 at 165Google Scholar.

124. David LOWE, “Spender, Sir Percy Claude”, Australian Dictionary of Biography, online: <http://adb.anu.edu.au/biography/spender-sir-percy-claude-15475>.

125. See UN General Assembly Res. 1514 (XV), 14 December 1960.

126. Document 37. The Registrar to the Agent for the Government of South Africa, 15 January 1962, Part IV, South West Africa Cases, Correspondence, 532.

127. See Sir Percy SPENDER, “The World Court in Conflict” (undated, on file with author). This document has been available at the National Library of Australia in the Papers of Sir Percy Spender, 1937−1978, for almost two decades, but no one cited this manuscript until David Lowe's biography of Spender, supra note 119 at 211−12, notes 16, 26, and 52.

128. The Statute of the International Court of Justice is annexed to the Charter of the United Nations. A copy is available online on the Court's website: <http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0>. For commentary, see Couvreur, Philippe, “Article 17” in Andreas ZIMMERMAN, ed., The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 272−285Google Scholar.

129. Statute of the International Court of Justice, Ibid.

130. Spender, , supra note 127 at 11−12Google Scholar.

131. Ibid., at 12−21.

132. Ibid., at 14.

133. Ibid., at 19.

134. Ibid., at 17.

135. Ibid., at 21.

136. Winiarski drew specific attention to the case of Sir Benegal Rau in the Anglo-Iranian Oil Company case and statements made by the Pakistan delegation at meetings of the Fourth Committee on 1 and 8 December 1961 when Zafrulla was Pakistan's Permanent Delegate to the UN—although the comments that were made in this Committee were not attributable to Zafrulla as they had been made by another member of the Pakistan delegation. Winiarski concluded the letter by assuring Zafrulla that his colleagues “have the pleasantest memories of you as Judge and Vice President”, before mentioning that the Court would be glad to receive from him information concerning facts that may cause difficulties with regard to his appointment as a Judge ad hoc in the light of his chairmanship of the UN General Assembly.

137. Spender, , supra note 127 at 24Google Scholar.

138. Ibid., at 24 (emphasis added).

139. Ibid., at 25.

140. Ibid., at 27.

141. Ibid.

142. The letter added “[p]ursuant to the Order of the Court dated 20 May 1961, the Governments of Ethiopia and Liberia hereby designate Sir Adetokunbo A. Ademola, Chief Justice of the Federation of Nigeria, as Judge ad hoc to sit in the South West Africa cases in the place and stead of Sir Mohammed Zafrulla Khan, whose designation is hereby withdrawn”. See Document 42. The Agents for the Governments of Ethiopia and Liberia to the Registrar, 24 May 1962, Part IV, South West Africa cases, Correspondence, 534.

143. No objection appears in the Court's published correspondence. As yet, I have not found any objections in the South African archives. South Africa would not object to Zafrulla until the Namibia Opinion in 1971. In fact, South Africa would vote in favour of Zafrulla's candidacy to be a judge at the ICJ in 1954 and 1963. There is no indication of South African hostility to Zafrulla in a confidential letter from A.M. Hamilton dated 2 July 1954, and sent from the Permanent South African Mission to the United Nations to the Secretary for Foreign Affairs of the Union of South Africa. The letter is an account of a meeting between A.M. Hamilton, the chargé d'affaires and Zafrulla in New York, where Zafrulla was canvassing South African support for his election to the ICJ. Zafrulla explained that he had lost the 1946 election to the Polish candidate Judge Winiarski, and that had he been elected “he would today, in spite of the Partition of 1947, be representing India on the Court”. Zafrulla was emphasizing this point to counter the argument that had been raised that only an Indian should replace Judge Rau. From the correspondence, it seems that Zafrulla had met Dr Malan and had friendly relations with Dr Geyer, whom he knew from meetings of the Institute of International Affairs. Zafrulla also explained to Hamilton that before partition he was the second judge in order of seniority on the Federal Court of India, and if he had not chosen to join the new state of Pakistan, he would now be the chief justice of India and therefore senior to the late Sir B.N. Rau, who was a member of a lower court at Calcutta. See “International Court: Candidature of Sir Zafrulla Khan”, External Affairs: UNO Mission (1947−1965), Vol. 14, file nr. 11, South African National Archives.

144. South West Africa Cases, Preliminary Objections, supra note 2 at 319.

145. Ibid., 319 at 347.

146. Ibid., at 343.

147. Khan, , supra note 41 at 274Google Scholar.

148. Ibid.

149. Spender, , supra note 127 at 30Google Scholar.

150. Ibid.

151. Ibid.

152. See the Statute of the International Court of Justice, supra note 128. For commentary, see Sir Robert Jennings and Philippe Couvreur, “Article 24”, in Zimmerman, supra note 128, at 453−64.

153. Spender, , supra note 127 at 30Google Scholar.

154. Ibid.

155. According to Sir Percy, Zafrulla was present at the meeting and was able to present his side of the story to the judges and answer questions. After a while, Zafrulla left the room so that the judges could discuss the issue among themselves.

156. Spender, , supra note 127 at 32Google Scholar.

157. Ibid.

158. Ibid., at 33.

159. Ibid., at 34.

160. Ibid., at 35. Zafrulla confessed that in his meetings with Sir Percy, and in the meeting with the Court, he “felt in the dark as to the procedure to be followed and the problem to be discussed and elucidated”. Indeed, Zafrulla's recollection of the meeting with the other judges in the Salle Bol was at variance with Sir Percy's. According to Zafrulla, he did not want to be present with the other judges when his case was discussed because he did not know what the “special reason” was that had been raised by Sir Percy that precluded him from sitting in the cases. According to Zafrulla's opinion of what transpired, he made a brief statement to the Court, and then withdrew, so Sir Percy could consult with the members of the Court alone.

161. See Sir Gerald's comments, ibid., at 21.

162. Ibid., at 36.

163. Ibid., at 37.

164. Ibid., at 38.

165. (1957−1958) 12 Yearbook of the International Court of Justice 16−17 at 17.

166. Lowe, , supra note 119 at 164−165Google Scholar.

167. See the statement by Sir Percy Spender proposing the deletion of Article 1 on self-determination in its entirety from the draft covenant on civil and political rights at the Tenth Session of the UN General Assembly, Third Committee, 647th meeting, Friday, 28 October 1955, UN doc. A./C.3/SR.647, 114−16, paras. 17−27.

168. I am grateful to Antony Anghie for this prescient observation. It is something I hope to explore further for my book manuscript. On Nauru more generally, see ANGHIE, Antony, “‘The Heart of My Home’: Colonialism, Environmental Damage, and the Nauru Case” (1993) 34 Harvard International Law Journal 445Google Scholar.

169. Lowe, , supra note 119 at 170Google Scholar.

170. Hudson, , supra note 110 at 97Google Scholar.

171. SPENDER, Percy, Politics and a Man (Sydney: Collins, 1972) at 275Google Scholar.

172. Ibid., at 277.

173. Quoting Mr Chambers as reported in the Brisbane Telegraph in WEERAMANTRY, Christopher, Nauru: Environmental Damage Under International Trusteeship (Oxford: Oxford University Press, 2002) at 285Google Scholar.

174. I write about this at length in my book manuscript. With regard to Namibia, the UK had large mining interests, including in nuclear energy, and the extraction of uranium with the aid of Rio Tinto Zinc. For a brief examination of UK policy in Southern Africa, see CURTIS, Mark, The Ambiguities of Power: British Foreign Policy Since 1945 (London: Zed Books, 1995) at 121−122Google Scholar.

175. See LOUIS, W.M. Roger and ROBINSON, Ronald, “The Imperialism of Decolonization” (1994) 22 Journal of Commonwealth History 462 at 470Google Scholar and at 488. Louis and Robinson observe that after Britain had put down the “Mau Mau” rebellion, Downing Street was reluctant to impose Black majority rule on British kith and kin in Kenya, let alone in Rhodesia and Nyasaland. The Central African Federation was established on 1 September 1953 and was dissolved on 31 December 1963.

176. Those who held such views, Hyam adds, were not the majority, “who generally took simply an attitude of kindly superiority towards blacks (as opposed to treating them as permanent children)”. Hyam was paraphrasing from a memorandum that was written by Patrick Gordon Walker, parliamentary under-secretary, for the Secretary of State Philip Noel-Baker. See HYAM, Ronald, “The Geopolitical Origins of the Central African Federation: Britain, Rhodesia, and South Africa, 1948−1953” (1987) 30 Historical Journal 145 at 154Google Scholar. Writing in 1987, Hyam described the Central African Federation as “a quite extraordinary mistake, an aberration of history (‘like the Crusader Kingdom of Jerusalem’), a deviation from the inevitable historical trend of decolonization”.

177. Thus, the Penal Code of Nyasaland made it a criminal offence, punishable by up to five years’ imprisonment, for a White woman to have illicit sexual intercourse with an African. See SIMPSON, A.W. Brian, Human Rights and the End of Empire (Oxford: Oxford University Press, 2001) at 317Google Scholar.

178. DARWIN, John, The Empire Project: The Rise and Fall of the British World-System 1830−1970 (Cambridge: Cambridge University Press, 2009) at 619CrossRefGoogle Scholar.

179. COHEN, Andrew, “‘A Difficult, Tedious, and Unwanted Task’ Representing the Central African Federation in the United Nations, 1960−1963” (2010) 19 Itinerario 105 at 108Google Scholar.

180. Ibid., at 114.

181. Sir Gerald's father was Vice-Admiral Sir Maurice Swynfen Fitz Maurice. See the entry written by Ian Brownlie for “Fitzmaurice, Sir Gerald Gray (1901−1982)” in the Online Oxford Dictionary of National Biography. Sir Maurice Swynfen Fitz Maurice was descended from Irish nobility, and spent his youth in the service of the British Empire fighting colonial wars in Africa. See Obituary, Vice-Admiral Sir M. Fitz Maurice, “War Service Afloat” The Times (24 January 1927) at 7, col. A.

182. Intriguingly, when Sir Gerald was a legal adviser to the Foreign Office, he concluded that a former member of the League of Nations could sue South Africa in the International Court on the grounds that it was not discharging its obligations under the Mandate. See “Meeting in the Commonwealth Relations Office”, para. 9 in “Advisory Opinion of the International Court of Justice Concerning Voting Procedure on Questions Relating to South West Africa”, note by Sir G. Fitzmaurice, 24 August 1955, FO 371/117419. TNA.

183. Fitzmaurice was opposed to the Advisory Opinions on South West Africa when he was the Legal Adviser to the British Foreign Office, and he strongly dissented from every case with which he was involved (such as 1962 Judgment and the 1971 Advisory Opinion) except for the 1966 Judgment. In a paper prepared in 1970 by Ian Sinclair, another Foreign Office Legal Adviser, he observed that the UK did not intervene in either the written or oral stage of the proceedings in any of the South West Africa cases that came before the Court. See the Minute on “South-West Africa and the I.C.J.” by Ian Sinclair, 30 July 1970, FCO 45/746. TNA. According to the material that is available in the Foreign Office archives, the UK wanted to steer a middle course to the extent that it could without upsetting either what it called “Black Africa” or South Africa. When the issue came to Court again in 1971, however, the UK would side with South Africa. See Cabinet: Defence and Overseas Policy Committee. South West Africa—The Advisory Opinion of the International Court of Justice, Memorandum by the Secretary of State for Foreign and Commonwealth Affairs, 20 September 1971, CAB 148/116. TNA.

184. Francis Vallat mentions a conversation he had with Sir Gerald, in which he put to him the arguments in favour of Zafrulla. Fitzmaurice told him that the National Group would take these arguments into consideration but expressed concern over his “recent political activities”. See the minute by Vallat dated 13 June 1963, FO 371/172614. TNA. The members of the National Group in 1963 were Lord McNair, Lord Evershed, Lord Hodson, and Sir Gerald Fitzmaurice. They nominated the following candidates: Sir Gerald Fitzmaurice, Professor André Gros, Sr Luis Padilla Nervo, and Sir Okyere Asafu-Adjaye. See “Elections to the International Court of Justice”, 19 June 1963, FO 371/172615. TNA. Oddly, Zafrulla's name appears on a later list drawn up by the Foreign Office. See Provisional Agenda Item number 15: Elections to the International Court of Justice, 13 September 1963, FO 371/172616. TNA.

185. There are some quite astonishing exchanges of letters in the files. It seems that, as in 1954, the political arm of the Foreign Office and the Commonwealth were in favour of Zafrulla, whereas the legal advisers, particularly Fitzmaurice, had an aversion to him. See, for instance, a letter from David Le Breton of the Commonwealth Relations Office dated 29 May 1963 (“we were a little surprised to see that Sir Zafrulla Khan did not win a nomination by the group. Although again we accept that final decisions about British voting have yet to be made, I should like to reaffirm our view that Sir Zafrulla has an extremely strong claim both as a Commonwealth candidate and for reasons of personal eminence … we very much hope that he will receive one of our votes.”). See also, the letter by P.H. Dean to Francis Vallat, 26 June 1963, FO 371/172615. TNA. (“The more I think about it, the more I am convinced that the British Delegation must vote for Sir Zafrulla Khan in these elections … Nor am I at all impressed by the argument which our National Group consider important, namely that Sir Zafrulla has switched his career from law to politics and back again. Surely, if a man is a good lawyer, and Sir Zafrulla is undoubtedly a very good lawyer and a very eloquent one into the bargain, it is a great additional advantage that he should have had wide political experience and be a highly respected figure as a statesman as well as a lawyer.”).

186. The opposition was clearly coming from Fitzmaurice. In a letter dated 9 May 1963, Vallat wrote in language reminiscent of Fitzmaurice's earlier remarks: “I think we must accept that the National Group have good reasons for preferring to nominate other candidates this time. One reason which is pretty strong is that it is not a very good thing for a Judge to leave the Court, go back into the hurly-burly of the General Assembly and political life and become its President, and then go back again as a Judge of the Court.” This letter seemed to be drafted to B.G. Smallman in Canberra. See FO 371/172614, TNA. Again, this argument did not go down well and Vallat was asked to reconsider. In a minute dated 27 June 1963, Vallat wrote that he had “on no less than three occasions, impressed on Lord McNair (who was the chair of the National Group) the merits of Sir Zafrulla Khan”. See FO 371/172615. TNA.

187. In the 1963 election, Zafrulla received seven votes in the Security Council and fifty-eight in the General Assembly. See “Results of the Voting in the Security Council and the General Assembly”, 23 October 1963, FO 371/172616. TNA.

188. Spender, , supra note 127 at 38Google Scholar.

189. Ibid., at 41−2.

190. Ibid., at 43.

191. Ibid., at 49.

192. Ibid., at 51.

193. The only way of finding out whether there was further correspondence on the matter would be for the Registrar of the ICJ to disclose the correspondence and to publish the report of the 1967 Committee that was established to examine the circumstances in which a member of the Court should refrain from participating in a case. The Committee consisted of Judges Fitzmaurice, Gros, and Ammoun. The report, which is believed to have addressed the issues caused by the controversies regarding Zafrulla and Padilla Nervo has never been published. See Jennings, , supra note 6 at 424Google Scholar. See also the reference in the 2012 edition updated by Couvreur, supra note 6 and note 128 at 460.

194. In Mauritius's challenge to the appointment of Judge Sir Christopher Greenwood as an arbitrator in a case concerning the British government's decision to establish a Marine Protection Area around the British Indian Ocean Territory (BIOT), the Arbitral Tribunal made reference in passing to Zafrulla's “recusal” in 1965, although Zafrulla never recused himself and no decision was taken by the Court under either art. 17(2) or art. 24 of the Court's Statute. See Matter of an Arbitration before an Arbitral Tribunal Constituted Under Annex VII of the 1982 United Nations Convention on the Law of the Sea at 26, para. 144. This decision is available online: <http://www.pca-cpa.org/showpage.asp?pag_id=1429>.

195. The only official challenge to a sitting member of the Court in the second phase of the cases was with regard to Judge Padilla Nervo who had been Mexico's Secretary of State for Foreign Affairs from 1952 to 1958. See South West Africa, Order of 18 March 1965, [1965] I.C.J. Rep. 5, and I.C.J. Pleadings, South West Africa, Vol. VIII, Minutes of the Hearings Held From 15 March to 14 July, 20 September to 15 November, and 29 November 1965, 21 March and on 18 July 1966, First Public Hearing, 15 March, 4. For commentary, see Cheng, , supra note 4 at 196Google Scholar, note 36, and Dugard supra note 4 at 291−2. See also, Higgins, supra note 4 at 587, note 22. Most revealingly, in the light of Sir Percy's claim that a majority of judges were opposed to Zafrulla sitting in the second phase of the South West Africa cases, the Court by eight votes to six decided not to proceed with the application lodged by South Africa against the presence of Judge Padilla Nervo. Judge Padilla Nervo had been Mexico's delegate to the League of Nations Assembly, the UN General Assembly, the Security Council, had acted as Chairman of the Mexican delegation to the UN General Assembly, and was Mexico's representative on the Trusteeship Council as well as Vice President of that Council. See (1964−1965) 19 Yearbook of the International Court of Justice at 19−21. In contrast to Zafrulla, Padilla Nervo had played a political role on an issue that was directly relevant to the South West Africa cases. As Vice President of the UN Trusteeship Council he spoke on issues that were germane to South Africa's dispute with the United Nations on South West Africa. See e.g. the statement made by Padilla Nervo at the Hundred and Fifth Plenary Meeting held in the General Assembly Hall at Flushing Meadow, New York, Saturday, 1 November 1947, at 591−6. Despite his having been Vice President of the Trusteeship Council, and participating in debates on the question of South West Africa, the Court did not think that this disqualified Judge Padilla Nervo from participating in the hearings and Judgment in the second phase of the South West Africa cases. In view of the fact that the majority of judges voted to reject the South African application against the participation of Judge Padilla Nervo in the South West Africa cases, despite his role in the UN Trusteeship Council, in which the case of South West Africa was discussed, one can only conclude that Sir Percy was being dishonest to Zafrulla in an effort to dissuade him from sitting in the cases.

196. See South West Africa, Order of 18 March 1965, ibid.

197. Indeed, Tanaka, according to Sir Percy's notes, was one of the judges who explicitly spoke in favour of Zafrulla sitting as Judge ad hoc in the preliminary phase of the South West Africa cases.

198. Art. 55 (2) of the Court's Statute provides: “[i]n the event of an equality of votes, the President or the judge who acts in his place shall have a casting vote.”

199. Dugard, , supra note 5 at 292Google Scholar.

200. South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6 at 51.

201. Merrills, , supra note 41 at 15Google Scholar.

202. South West Africa Cases, first phase, Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, supra note 2 at 465.

203. Lowe, , supra note 119 at 167Google Scholar.

204. As complained by Ernest Gross, who was the lead counsel for Ethiopia and Liberia. See GROSS, Ernest A., “The South West Africa Cases: What Happened?” (1966) 45 Foreign Affairs 36CrossRefGoogle Scholar.

205. Dugard, , supra note 5 at 292−293Google Scholar.

206. The Court felt compelled to explain that it was addressing the matter now even though this was something that should have been addressed in 1962 because “the Court was unable to go into it until the Parties had presented their arguments on the other questions of merits involved”. See South West Africa, Second Phase, supra note 2 at 18, para. 5.

207. Ibid., at 23, para. 16.

208. Ibid., at 26, para. 25.

209. Ibid., at 28, para. 32.

210. Ibid., at 29, para. 33.

211. Ibid.

212. Ibid., at 31, para. 40.

213. Ibid., at 51, para. 99.

214. Khan, , supra note 41 at 275Google Scholar.

215. “I Was Asked Not to Sit—World Court Judge”, The Observer (31 July 1966) at 2.

216. Ibid.

217. The UN delegate for Guinea complained to the General Assembly:

The underhand tactics of Sir Percy Spender, both in the improper disqualification of the Pakistan Judge, Sir Zafrulla Khan, and in the timing of the judgment, handed down when the verdict favourable to South Africa and erroneously labelled “technical” gave rise to no doubt, show clearly that this Judge, from a country where it is not so long since the aborigines were treated worse than the non-Whites of South Africa, has chosen to hold high the torch of anachronistic racism and colonialism, to the detriment of the dignity, respectability and impartiality of his office. It is indeed the alliance of colonial and racist forces with the illegitimate interests of an obsolete world that prevailed in the decision of this Judge, who is guilty of the attempted murder of the International Court of Justice.

See statement by Mr Achcar (Guinea) speaking on the question of South West Africa at the Twenty-First Session of the UN General Assembly, 1414th Plenary Meeting, 23 September 1966, at 14−15, para. 116.

218. MINTER, William, “With All Deliberate Delay: National Security Action Memorandum 295 and US Policy Toward South West Africa” (1984) 27 African Studies Review 93 at 100Google Scholar.

219. See UN General Assembly Res. 2145 (XXI), 27 October 1966.

220. SPICER, Michael, “Namibia: Elusive Independence” (1980) 10 World Today 406 at 407Google Scholar.

221. See DUGARD, John, “The Revocation of the Mandate for South West Africa” (1968) 62 American Journal of International Law 78 at 82Google Scholar.

222. Zafrulla was responding to the following question, which was addressed to him: “Does the judgment of the Court mean that the merits of the dispute cannot be judicially determined and, if so, would not that constitute a shattering blow to procedure for the peaceful settlement of international disputes, a blow dealt by the principal judicial organ set up for that purpose?” See Nasim AHMAD, “Zafrullah Throws Light on World Court Judgment” Dawn (Karachi) (28 July 1966) at 9.

223. The US State Department had been expecting, and had been prepared for, a judgment against South Africa. An approved policy paper prepared by all bureaus and agencies of the US government responsible for formulating US policy towards South Africa had predicted that “the ICJ will decide the case before it by mid-1965 and that its decision will be unfavourable to South Africa's contentions respecting its asserted freedom to apply apartheid in South-West Africa and freedom from UN supervision”. See “National Policy Paper—South Africa”, 19 January 1965, in Foreign Relations of the United States, 1964−1968, Volume XXIV, Africa (Washington: United States Government Printing Office, 1999), 1007−19. However, according to William Minter, even if there had been a strong court ruling against South Africa in 1966, the US and British governments would still have found ways to delay mandatory UN sanctions. See Minter, supra note 218 at 98−100.

224. Khan, , supra note 41 at 288Google Scholar.

225. See Merrills, , supra note 41 at 15Google Scholar. Sir Gerald had also lost the 1966 elections to become President.

226. See the debates cited in ANAND, R.P., Studies in International Adjudication (Delhi: Vikas Publications, 1969) at 145Google Scholar.

227. Ibid.

228. UN SC Res. 276, 30 January 1970. (France and the UK abstaining).

229. See SC Res. 284, 29 July 1970.

230. Legal Consequences for States, supra note 2 at 16.

231. Dissenting Opinion of Judge Sir Gerald Fitzmaurice (ibid., at 220).

232. Legal Consequences for States, supra note 2 at 28, para. 45.

233. Ibid., at 28−9, para. 46.

234. Ibid., at 30, para. 50.

235. Ibid., at 31, para. 52.

236. Ibid., at 31, para. 53.

237. Ibid.

238. Ibid. It was through such evolutionary modes of reasoning, that the ICJ was able to conclude, as Judge Higgins observes, “that peoples living in a Class C Mandate—a different type of institution, in which self-determination had most certainly not been envisaged at the time of drafting—were nonetheless entitled to self-determination”. See Higgins, supra note 3 at 1072 (emphasis in original).

239. Ibid., at 51, para. 106.

240. Ibid.

241. Ibid., at 52−3, para. 113.

242. Ibid., at 53, para. 115.

243. In Parliament, the British government had to defend accusations that it was more concerned with safeguarding the interests of the company Rio Tinto Zinc than with the welfare of Namibians. See Curtis, , supra note 174 at 121−122Google Scholar.

244. South-West Africa, HC Deb, 19 October 1971 vol. 823 cols. 668−94 at cols. 678−83.

245. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] I.C.J. Rep. 403.

246. KHAN, Muhammad Zafrulla, “Address on the 50th Anniversary of the International Judicial System”, 27 April 1972, (1972) 6 International Lawyer 449Google Scholar.

247. Ibid., at 460.

248. Ibid., at 460−1.

249. Western Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12 at 31−2, paras. 51−6.

250. East Timor (Portugal v. Australia), Judgment, [1995] I.C.J. Rep. 90 at 102, para. 29.

251. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 171−2, para. 88.

252. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 403 at 436, para. 79, and at 438, para. 82. See further the separate Opinion of Judge Yusuf, especially at 620, para. 5 (lamenting that the Court did not use “this opportunity to define the scope and normative content of the post-colonial right of self-determination”). See also the separate Opinion of Judge Cançado Trindade who wrote on self-determination at length.

253. Hussain, , supra note 8 at 479Google Scholar.

254. Ibid., at 488.

255. Ibid., at 491.

256. Zafrulla was Pakistan's Foreign Minister from 1947 to 1954, and was Pakistan's Permanent Delegate to the UN and President of the UN General Assembly from 1961 to 1964.

257. See International Status of South-West Africa, Dissenting Opinion of Mr Alvarez, supra note 2 at 174. See also South West Africa, Second Phase, Dissenting Opinion of Judge Tanaka, supra note 2 at 250.