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The South West Africa Cases: an Appraisal

Published online by Cambridge University Press:  22 May 2009

Richard A. Falk
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Extract

Ethiopia and Liberia instituted litigation in 1960 before the International Court of Justice (ICJ) to test the legality of South Africa's administration of the mandated territory of South West Africa. The ICJ received, thereby, an opportunity to deal with a major question of international concern. Hopes were raised that the role of international adjudication would be enhanced by the results of this litigation. The case was also expected to demonstrate to the new states that the procedures and institutions of traditional international law could be used to promote, as well as to retard, their distinctive goals in international life.

Type
Articles
Information
International Organization , Volume 21 , Issue 1 , Winter 1967 , pp. 1 - 23
Copyright
Copyright © The IO Foundation 1967

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References

1 For a convenient survey see the Memorial submitted by Ethiopia, and Liberia, to the ICJ in the l.C.J. Pleadings, South West Africa, Vol. I, pp. 32–87Google Scholar (hereinafter cited as Memorial); see also the Counter-Memorial filed by die Government of die Republic of South Africa in ibid., Vol. II, pp. 1–96 (hereinafter cited as Counter-Memorial). See also Nielsen, Waldemar A., African Battleline (New York: Harper & Row, 1965), pp. 110–126Google Scholar.

2 In 1920 when South West Africa was placed under mandate die white population was 15,000 and the black population was 81,000; in 1966 the population of the Territory is reported at 545,000, of which 72,000 are white.

3 Article 2 (1) of the Mandate reads as follows:

The Mandatory shall have full power of administration and legislation over die territory subject to the present Mandate as an integral portion of the Union of South Africa, and may apply the laws of the Union of South Africa to the territory, subject to such local modifications as circumstances may require.

South Africa aptly argued that the extension of apartheid was a fulfillment of the promise of this provision and that the Mandatory's conception of well-being was controlling provided it was carried out in good faith. It is important to appreciate that the paragraph following Article 2 (l) formulates the key duty of die Mandatory to “promote to the utmost the material and moral well-being and the social progress of the inhabitants” around die meaning of which the central controversy revolved.

See also Article 22 (6) of die League Covenant.

4 The principal organs concerned wim die administration of die mandates system were die Permanent Mandates Commission and die League Council as die supervisory body. For general accounts see Bentwich, N., The Mandates System (London: Longmans Green & Co., 1930)Google Scholar; Wright, Quincy, Mandates Under the League of Nations (Chicago: University of Chicago Press, 1930)Google Scholar; and Hall, H. D., Mandates, Dependencies, and Trusteeship (London: Stevens & Sons, Ltd., 1948)Google Scholar.

5 International Status of South-West Africa, Advisory Opinion: I.C.J. Reports 1950, p. 128; South-West Africa-Voting Procedure, Advisory Opinion of June 7th, 1955: I.C.J. Reports 1955, p. 67; and Admissibility of hearings of petitioners by the Committee on South West Africa, Advisory Opinion of June 1st, 1956: I.C.J. Reports 1956, p. 23. For die interpretation of die parties in die South West Africa litigation see Memorial, pp. 51–54; and Counter-Memorial, especially pp. 71–96.

6 The background of this decision to institute judicial action is described in Gross, Ernest A., “The South West Africa Case: What Happened?,” Foreign Affairs, 10 1966 (Vol. 45, No. 1), pp. 36 and 39–42CrossRefGoogle Scholar.

7 Ethiopia and Liberia were the only African Members of the League aside from Egypt; the transformation of Egypt into the United Arab Republic would create a technical question about whether the latter was a “Member of the League” within the meaning of Article 7 of the Mandate.

8 E.g., see The New York Times, July 19, 1966, pp. 1, 16–17.

9 See The New York Times, September 28, 1966, p. 1.

10 The first paragraph of Article 7 reads as follows:

The consent of the Council of the League of Nations is required for any modification of the terms of the present Mandate.

11 Wright, p. 475.

12 The “majority” of seven was composed of Judges Sir Percy Spender (Australia), Bohdan Winiarski (Poland), Jean Spiropoulos (Greece), Sir Gerald Fitzmaurice (United Kingdom), Gaetano Morelli (Italy), André Gros (France), and J. T. van Wyk (South Africa); the dissenting minority of seven was composed of Judges V. K, Wellington Koo (China), Vladimir M. Koretsky (Soviet Union), Luis Padilla Nervo (Mexico), Isaac Forster (Senegal), and Sir Louis Mbanefo (Nigeria). Judges van Wyk and Sir Louis Mbanefo were nominated by die litigants as Judges ad hoc as provided by Article 31 of the Statute of the ICJ.

13 Namely, that the Mandatory was acting in violation of Articles 2 (2) (“well-being”) and 6 (administrative accountability to the League Council) of the Mandate.

14 It might be appropriate to quote a relevant passage written by Sir Gerald Fitzmaurice in an essay honouring Lord McNair's period of service on the ICJ:

A necessary ingredient of any sound legal system is that of the “certainty” of the law-that the parties in going to law, must be able, not indeed to predict the outcome, but to be reasonably sure as to the legal basis from which that outcome will proceed, and the principles which will be applied in reaching it;-in short the parties must be able to feel that a court of law will not go off at a tangent and decide the case on some wholly new footing thought up by itself and not discussed in the course of the argument. This objection is justified in the sense that although the jurisprudence of the International Court firmly establishes its right to raise points, and decide on the basis of them propuo notu, it should at least raise them before deciding them, and this not merely in its private deliberations but at the public hearing, so that the parties may have an adequate opportunity of arguing them.

(“Judicial Innovation—Its Uses and its Perils—As exemplified in some of the Work of the International Court of Justice during Lord McNair's Period of Service,” in Cambridge Essays in International Law [London: Stevens & Sons, Ltd., 1965], p. 26.)Google Scholar

15 The only “preliminary question” that seemed to remain open at the stage of “merits” concerned whether the Mandate had indeed survived the dissolution of the League, a question answered unanimously in the affirmative by the Court in 1950 when it was acting in its advisory capacity.

16 There was great stress placed in the pleadings of South Africa upon whether the alleged violation of Article 2 (2) was justiciable. The issue had been discussed in great detail in the joint dissenting opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice in 1962. They comment upon the “well-being” language of Article 2 (2) [the relevant language is quoted above in note 3] as follows:

There is hardly a word in this sentence which has not now become loaded with a variety of overtones and associations. There is hardly a term which would not require prior objective definition, or redefinition, before it could justifiably be applied to the determination of a concrete legal issue.… As at present advised we have serious misgivings as to the legal basis on which the necessary objective criteria can be founded.

(South West Africa Cases [Ethiopia v. South Africa; Liberia v. South Africa], Preliminary Objections, Judgment of 21 December 7962: I.C.J, Reports 1962 [hereinafter cited as South West Africa Cases, Preliminary Objections], pp. 466–467.) A considerable portion of the subsequent reasoning of the applicant states was directed at satisfying “these serious misgivings.”

17 South West Africa Cases, Second Phase, Judgment, I.C.J. Reports 1966 (hereinafter cited as South West Africa Cases, Second Phase), p. 220.

18 Principally conceiving of the mandates system in terms of the provisions of Article 22 and of the practice during the League period; the provisions of the mandate agreement covering South West Africa was not, in dais general inquiry, accorded special attention.

19 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 31.

20 Ibid., p. 33.

21 Article 5 of the Mandate reads as follows:

Subject to me provisions of any local law for the maintenance of public order and public morals, the Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State Member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling.

22 See South West Africa Cases, Preliminary Objections, pp. 478–482.

23 South West Africa, Second Phase, Judgment, p. 37.

24 Ibid.

25 Ibid., p. 38.

26 Judge Jessup forcefully develops this line of attack in his dissenting opinion in 1966, concluding that The Court now in effect sweeps away this record of 16 years and, on a theory not advanced by the Respondent in its final submissions of 5 November 1965, decides that the claim must be rejected on the ground that the Applicants have no legal right or interest.

(Ibid., p. 328; see also ibid., pp. 323–330.)

27 The ten judges that participated in both phases are Spender, Wellington Koo, Winiarski, Spiropoulos, Fitzmaurice, Koretsky, Jessup, Morelli, Mbanefo, and van Wyk.

28 Some of the adventitious circumstances, each of which worked against the applicants can be mentioned:

1) The disqualification of Sir Muhammad Zafrulla Khan (Pakistan) from the proceeding because of his original nomination as an ad hoc Judge by Ethiopia and Liberia prior to his election by the General Assembly as a regular Judge of the Court.

2) The death of Judge Abdel Hamid Badawi of the United Arab Republic in the course of the oral proceedings in 1965, who in 1962 had voted with the majority of eight in favor of accepting jurisdiction.

3) The disabling heart attack of Judge José Luis Bustamante y Rivero (Peru) who had also voted with the majority in 1962 and had appended a separate opinion strongly endorsing the legal theory upon which the applicants' case rested.

4) The highly unrepresentative political and jurisprudential outlook of Judge Winiarski from Poland who is misleadingly referred to as “the second Socialist” on the Court.

5) The fact that a member of the conservative faction of seven happened to be President of the Court; if Vice President Wellington Koo had been President the Court would have set legal history in the other direction.

29 South West Africa Cases, Preliminary Objections, p. 343; later in the same paragraph on p. 343 the Court has this to say:

For the manifest scope and purport of the provisions of this Article [7] indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members.

30 Ibid., p. 337.

31 Ibid. The Court concludes the passage by saying

It is thus seen what an essential part Article 7 was intended to play as one of the securities in the Mandates System for the observance of the obligations by the Mandatory.

(Ibid.)

32 Ibid., p. 344. (Emphasis added.)

33 See, e.g., South West Africa, Second Phase, Judgment, especially pp. 47–51; pp. 51–52 summarize the attitude of the majority toward the narrow scope of judicial function that controlled die decision in 1966.

34 For a general analysis of this intrajudicial bargaining see Murphy, Walter F., Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964)Google Scholar.

35 See especially Article 22 (6) of the Covenant and Article 2 (1) of the Mandate (text of the latter above in note 3).

36 It is realistic to conceive of “this dispute” as one between the organized international community and South Africa. Ethiopia and Liberia are in the role of agents of the organized international community, especially as manifest in the General Assembly. Article 34 of the Statute of the Court allows only states to initiate contentious proceedings.

37 For a discussion of these issues of jurisprudential orientation see Falk, R. A., “New Approaches to the Study of International Law,” to appear as a chapter in a book New Approaches to International Relations, ed. Kaplan, Morton A., to be published in 1967 by St. Martin's Press in New YorkGoogle Scholar.

38 South West Africa Cases, Preliminary Objections, p. 466.

39 Ibid. (Emphasis added.)

40 See ibid., pp. 466–467.

41 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of July 20, 7962:1.C.J. Reports 1562, p. 151.

42 E.g., Charles Swart, State President of South Africa, in a speech opening the new session of Parliament, Release of Information Service of South Africa, June 1966.

43 South West Africa, Second Phase, Judgment, p. 52.

44 For the text of the statement see “ICJ South-West Africa Judgment: U.S. Appraises Legal Situation,” Department of State Bulletin, 08 15, 1966 (Vol. 55, No. 1416), p. 231Google Scholar.

45 See, e.g., South West Africa, Second Phase, Judgment, especially p. 19.

46 The specific objections considered in the preliminary were that:

1) The Mandate was never and is no longer “a treaty or convention in force” within the meaning of Article 37 of the Statute of the Court;

2) neither Ethiopia nor Liberia are “another Member of the League” within the meaning of Article 7 of the Mandate;

3) the alleged disagreement between Ethiopia and Liberia and South Africa is not a “dispute” within the meaning of Article 7, especially as the disagreement does not concern the material interests of these governments or their nationals; and

4) the alleged conflict is not a “dispute” that “cannot be setded by negotiation” within the meaning of Article 7.

47 For clear analysis on this issue, favorable to South Africa's contentions, see Morelli's, Judge dissenting opinion in South West Africa Cases, Preliminary Objections, pp. 564–574Google Scholar.

48 South Africa's ad hoc Judge van Wyk did write a long opinion on the merits largely endorsing South Africa's contentions throughout the litigation. (South West Africa, Second Phase, Judgment, pp. 65–215.)

49 This point is substantially borrowed from ProfessorLissitzyn's, Oliver J. oral statement at a forum on the South West Africa litigation held under the auspices of the African-American Institute in New York City on 09 28, 1966Google Scholar.

50 Fouad Ammoun (Lebanon), Charles D. Anyeama (Nigeria), Cesar Bengzon (Philippines), Manfred Lachs (Poland), and Sture Petrén (Sweden) are the five new judges; three of the vacancies were created by the retirement of Judges Sir Percy Spender, Spiropoulos, and Winiarski, all of whom voted with the majority in 1966. The two other vacancies arose from the death of Judge Badawi Pasha and the disablement of Judge Bustamante, neither of whom had been able to vote in 1966 although both appeared favorable to Ethiopia and Liberia.

51 See Gross, , Foreign Affairs, Vol. 45, No. 1, pp. 46–47Google Scholar.

52 E.g., see the problems discussed by the Permanent Court of International Justice in Eastern Carelia Case, PCIJ Publications, 1923 (Series B, No. 5)Google Scholar.

53 The applicant states requested more definite relief in their submissions—namely, an order by the ICJ that South Africa “cease forthwith” the practice of apartheid in South West Africa. But even so strong a supporter of the Ethiopia-Liberia case as Judge Jessup implied an unwillingness to grant relief in such drastic form.

54 South West Africa, Second Phase, Judgment, p. 300.

55 Cf. Judge Tanaka's sensitivity to the delicate task of relating the Mandatory's discretion in Article 2 (1) to the Mandatory's duty to promote well-being in Article 2 (2). (Ibid., pp. 283–284.)

56 Cf. Judge Jessup's apparent opposition to this conclusion (ibid., pp. 432–433, 441).

57 For a discussion of the problem in general terms see Falk, Richard A., “On the Quasi-Legislative Competence of die General Assembly,” American Journal of International Law, 10 1966 (Vol. 60, No. 4), pp. 782–791CrossRefGoogle Scholar.

58 South West Africa, Second Phase, Judgment, p. 294; see also the discussion on pp. 291–294.