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South West Africa « SOUTH WEST AFRICA THE COURT’S JUDGMENT TWO STUDIES PUBLISHED BY THE INTERNATIONAL COMMISSION OF JURISTS Staff Study JUDGMENT OF THE INTERNATIONAL COURT OF JUSTICE ON SOUTH WEST AFRICA (1966) Rosalyn Higgins THE INTERNATIONAL COURT AND SOUTH WEST AFRICA: THE IMPLICATIONS OF THE JUDGMENT INTERNATIONAL COMMISSION OF JURISTS - GENEVA PRICE: 3.25 Sw. Ft. S0.75 U.S. £0.5.4 U.K. JUST PUBLISHED THE RULE OF LAW AND HUMAN RIGHTS Principles and Definitions elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, re-arranged according to subject-matter, with cross-references to the principal human rights conventions and well indexed. Price: US $ Sterling Hard back ................................................................... 1.50 £0.10.6 Paper b a c k ...................................................................1.25 £0. 9.0 A list of our other publications will be supplied on demand. Please write to : THE INTERNATIONAL COMMISSION OF JURISTS 2, Quai du Cheval-Blanc, 1211 Geneva 24, Switzerland JUDGMENT OF THE INTERNATIONAL COURT OF JUSTICE ON SOUTH WEST AFRICA (1966) STAFF STUDY The Judgment of the International Court of Justice delivered on July 18, 1966 in the case which Ethiopia and Liberia, as original Members of the League of Nations, brought against South Africa in respect of the administration of its Mandate over South West Africa has evoked considerable comment and criticism throughout the world. The Judgment has had the effect of focussing attention on some of the problems relating to the effective application of Inter­ national Law both in its substantive and in its procedural aspects. It has important implications for the standing of the International Court of Justice and for its future role in adjudicating upon disputes between member States of the United Nations. In the last decade the membership of the United Nations has considerably increased and become much more broad-based by reason of the fact that several countries which had long been under colonial rule have now become independent. These newly indepen­ dent countries naturally look to the United Nations and its competent organs for guidance and direction in their relations with other nations. It is therefore vital that a predictable and systematic inter­ national legal order should exist which will not only command the respect of member States but which will also encourage them to have recourse to the International Court of Justice to settle their disputes instead of leaving them to adopt their own devices - some­ times resulting in bloodshed. In those areas of the world where the Universal Declaration of Human Rights is known and respected there is a growing realization that effective machinery for the enforcement of human rights on an international level is essential for the safeguarding of the Rule of Law. The question has been posed by lawyers throughout the world whether the recent Judgment of the International Court of Justice is not an indication of the inadequacy of the existing machinery for the enforcement of such rights. In view of the importance of the Judgment, it is proposed to set out in this article in some detail the history of the case, the STAFF STUDY issues involved and some more important extracts from the Judgment of the Court and from Supporting and Dissenting Opinions. It is hoped to follow up this article with a further article on the Judgment. After Germany was defeated in the First World War, German South West Africa, which had been a German colony, was con­ ferred upon His Britannic Majesty by the principal Allied and Associated Powers under a Mandate to be exercised on His Majesty’s behalf by the Government of the Union of South Africa 1. That Mandate was confirmed by the Council of the League of Nations on December 17, 1920. The “Sacred Trust”, to use the words of the Mandate, laid by the League of Nations on the Union of South Africa imposed upon the mandatory the obligation to promote to the utmost the material and moral well-being and the social pro­ gress of the inhabitants of German South West Africa. Article 2 of the Mandate reads: The Mandatory shall have full power of administration and legislation over the 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 modifications as local conditions may require. The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate. It is convenient to note here that Mandates created by the League of Nations were of three categories, namely, A, B and C, depending largely upon the general level of advancement of the inhabitants of the territories in question, and the Mandate in respect of German South West Africa was a Mandate of the C category. The Union of South Africa continued to govern South West Africa under the Mandate without interruption and after the Second World War the General Assembly of the United Nations, by a Resolution of December 1949, decided to obtain an Advisory Opinion from the International Court of Justice on the international status of South West Africa. The Resolution was duly transmitted to the Court which on July 11, 1950, gave the following Opinion: that South West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17, 1920; 1 On May 31, 1961 the Union became the Republic of South Africa. SOUTH WEST AFRICA CASE that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court; that the provisions of Chapter XII of the Charter are applicable to the Territory of South West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System; that the Union of South Africa acting alone has not the competence to modify the international status of the Territory of South West Africa, and that the competence to determine and modify the international status of the Territory rests with the Union of South Africa acting with the consent of the United Nations. There were two further Advisory Opinions of this Court relating to the Mandate for South West Africa, given on June 7, 1955 and June 1, 1956. On November 4, 1960 the Registrar of the International Court of Justice received two Applications, each instituting proceedings against the Government of the Union of South Africa, relating to “the continued existence of the Mandate for South West Africa and the duties and performance of the Union as Mandatory there­ under”. One of these Applications was submitted on behalf of the Government of Ethiopia, and the other on behalf of the Government of Liberia. To found the jurisdiction of the Court in the proceedings thus instituted, the Applications, having regard to Article 80, paragraph 1 of the Charter of the United Nations, relied on Articles 2 and 7 of the Mandate of December 17, 1920 for German South West Africa, Article 22 of the Covenant of the League of Nations and Article 37 of the Statute of the International Court of Justice. Article 80, paragraph 1 of the Charter reads, “Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79 and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner whatsoever the rights of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” The relevant portion of Article 7 of the Mandate reads, (1) “The consent of the Council of the League of Nations is required for any modification of the terms of the present Mandate. STAFF STUDY (2) The Mandatory agrees that, if any dispute whatever 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 Interna­ tional Justice provided for by Article 14 of the Covenant of the League of Nations.” The relevant portion of Article 22 of the Covenant reads, “To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. “The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exer­ cised by them as Mandatories on behalf of the League.” Article 37 of the Statute reads, “Whenever a treaty or con­ vention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.” The Applications of Ethiopia and Liberia asked the Court to adjudge and declare that: A.
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