NAMIBIA BY RESOWTIONS: NAMIBIA BY RESOWTIONS: A LEGAL ANALYSIS OF INTERNATIONAL ORGANISATI9?NS' ATTEMPTS AT DECOLONISATION 1*I2 by Tvwur IIUARAKA TABLE OF CONTENTS PREFACE HISTORICAL INTRODUCTION CHAPTER I THE ESTABLISHMENT OF THE MANDATES SYSTEM I. Internal Political Struggle 2. Inter-Ally Contradictions 3. Negotiations at the Paris Peace Conferen c CHAPTER II CHAPTER III CHAPTER IV THE MANDATE FOR SOUTH WEST AFRICA IN OPERATION 1. The Legal Framework 2. The Bondelzwarts Uprising 3. The Well-being and Development of the Inhabitants INTERNATIONAL ACCOUNTABILITY AT CROSSROADS 1. International Accountability during the War 2. South Africa's Statements during the Transitional Period 3. The Mandates System into Trusteeship System 4. Succession in International Organisation THE UNITED NATIONS LEGAL APPROACH TO DECOLONISATION AND NAMIBIA 1. United Nations Resolutions 2. The United Nations Law of Decolonisation 3. The Principle of Self-Determination 4 11 13 20. If29 CHAPTER V CHAPTER VI WITHDRAWAL OF THE MANDATE Remand to the United Nations Revocation of the Mandate The Legal Significance of the General Assembly Resolution 2145 (XXI) 286 F3189 318 CHAPTER VIII CHAPTER IX THE NAMIBIA ADVISORY OPINION 1. Introductory Comment 2. The Conflict between Decolonisation and Colonisation in International Law 3. Conclusion ATTEMPTS AT THE IMPLEMENTATION OF THE UNITED NATIONS DECISIONS 1. The United Nations Council for Namibia 2. The Decree on the Natural Resources of Namibia 3. The Legal Characteristics (of the Statehood) of Namibia 4. Domestic and International Decolonisation CONCLUSION BIBLIOGRAPHY APPENDICES THE NAMIBIA QUESTION AT THE UNITED NATIONS 1. The Principle of International Accountability of the Mandates System Legally Sanctioned 2. Imitation of the Permanent Mandates Commission Attempted 3. Implementation of the Principles of International Law of Decolonisation Attempted 4. United Nations Presence in Namibia Attempted NAMIBIA AT THE INTERNATIONAL COURT OF JUSTICE: THE LEGAL BATTLE 1. General Comment 2. The Legal Interest or the Right 3. "The Theory of Parallel Provisions" of Judges Spender and Fitzmaurice CHAPTER VII COUR. INTERNATIONALE DE JUSTICE NAMIBIA BY RESOLUTIONS Foreword This book on Namibia by a Namibian is certainly the most systematic and comprehensive account of what used to be called, until recently, the Territory of South West Africa. About eleven years ago the International Court of Justice gave its Advisory Opinion in the cause cil~bre: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). The main conclusion may thus be summarized: "that the continued presence of South Africa in Namibia being illegal, South Africa is under obl4#tionv to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory; that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and 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;" and, finally, "that it is incumbent upon States which are not Members of the United Nations to give assistance ... in the action which has been taken by the United Nations with regard to Namibia." It is noteworthy that these precise conclusions reached by the Court, and which the United Nations has accepted and has been trying to implement ever since, have not, up till now, been complied with by the Government of South Africa. I NTEFRLNATIONAL COURT OF JUSTICE COUR INTERNATIONALE DE JUSTICE - 2 The story of Namibia as told before the Court goes back to the origin and operation of the Mandate System, established immediately after World War II by Article 22 of the League Covenant. In the actual presentation of the case there are important issues involved where the nature of the Mandate System and its working under the League of Natious, the consequences of the demise of the League and the establishment of the United Nations itself in 1945, as well as the impact of the further development within the new United Nations Organization are considered. It was with these problems in mind that the various resolutions of the United Nations were adopted and attempts made to implement them, and this is the main subject of this book, which bears the expressive title: Namibia by Resolutions. As the Court itself observed, thetmatter before it provided the sixth occasion it had to deal with the issues involved in the Mandate of South West Africa. The crux of the matter was, of course, the resolution of the Security Council which put an end to the South African Government's Mandate over the Territory and the consequent request to the Court to make a pronouncement on that resolution. The South African Government disputed the validity of that resolution, and invited the Court to pronounce it, and the preceding resolutions, to be of no effect. After due consideration of all the relevant resolutions already adopted by the General Assembly and the Security Council, the Court came to the firm conclusion that it had no power, under the Charter of the United Nations and its own Statute, to declare any of these resolutions invalid. What the Court did was to take judicial notice of all the relevant resolutions, especially resolution 276, and to declare them legal and valid as to what they in fact laid down. INTERNACTIONA COUR.T OF JUSTICE CHAPTER V CHAPTER VI WITHDRAWAL OF THE MANDATE Remand to the United Nations Revocation of the Mandate The Legal Significance of the General Assembly Resolution 2145 (XXI) 286 318 CHAPTER VIII CHAPTER IX CONCLUSION BIBLIOGRAPHY APPENDICES THE NAMIBIA ADVISORY OPINION 1. Introductory Comment 2. The Conflict between Decolonisation and Colonisation in International Law 3. Conclusion ATTEMPTS AT THE IMPLEMENTATION OF THE UNITED NATIONS DECISIONS 1. The United Nations Council for Namibia 2. The Decree on the Natural Resources of Namibia 3. The Legal Characteristics (of the Statehood) of Namibia 4. Domestic and International Decolonisation THE NAMIBIA QUESTION AT THE UNITED NATIONS 1. The Principle of International Accountability of the Mandates System Legally Sanctioned 2. Imitation of the Permanent Mandates Commission Attempted 3. Implementation of the Principles of International Law of Decolonisation Attempted 4. United Nations Presence in Namibia Attempted NAMIBIA AT THE INTERNATIONAL COURT OF JUSTICE: THE LEGAL BATTLE 1. General Comment 2. The Legal Interest or the Right 3. "The Theory of Parallel Provisions" of Judges Spender and Fitzmaurice CHAPTER VII COUR INTERNATIONALE DE JUSTICE -4 proffered evidence of the treatment which it was according to the peoples of the Territory and, indeed, for the Court to go out to visit the Tirritory concerned. The Court felt that the thousands of pages of print, including charts and diagrams, were so detailed and graphic as not to require any supplementation by an official visit of the Court. As the representative of the Organization of African Unity in the case before the Court, I am of opinion that the Court was right. This book is recommended, above all else, for its avoidance of sentimentality or bias. It is a scholarly presentation of an important subject of contemporary international law, and deserves careful study as-such. T.O. Elias The Hague, 15 July 1982 INTERNATIONAL COURT OF JUST1CE PREFACE The question of Namibia in time and substance covers the whole spectrum of decolonisation. It ushered in the beginning of the end of colonialism and, unbelievably, ends the end as well. In this respect, the Namibia question straddles the various phases of the development of international organisations. Consequently, the question of Namibia, as it evolved before international organisations, illustrates demonstratively the various stages of the evolution of the principles of international law..Opceruang decolonisation. However, very often the question of Namibia has been considered and analyzed in piece meal. The various aspects of the question are considered as points of dispute between South Africa and the international community, resulting from the former's failure to place Namibia under the Trusteeship System, for example the advisory opinions of the 1950s. These disputed points are not considered as part of the wider question of decolonisation. Yet the question of Namibia is in the final analysis a question of decolonisation. In this study, on the contrary, the decolonisation aspects of the question are the focal points. The various specific points of contention in the long history of the question of Namibia before international organisations are considered not as ends in themselves; but as the means by which the international organisations were able to develop and to amplify the principles of international law relating to decolonisation. The question of Namibia as a case study is, thus, used to demonstrate the impact of international organisations in the development of international law in this field. Consideration of the question of Namibia as only a dispute involving the interpretation of the various provisions of the international agreements, without taking into account the purpose and objectives of the mandates and the trusteeship systems, could lead to incorrect conclusion. This is what we try to demonstrate in this study.