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1971 Advisory Opinion of the International Court of Justice on Namibia (South West Africa)

Published online by Cambridge University Press:  24 January 2025

William E. Holder*
Affiliation:
School of General Studies, Australian National University

Abstract

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Type
Comment
Copyright
Copyright © 1972 The Australian National University

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References

1 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (1971) I.C.J. Reports 16. The Court comprised: President Sir Muhammad Zafrulla Khan, Vice-President Ammoun, Judges Sir Gernld Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petren, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov and Jimenez de Arechaga.

2 Art. 22, Covenant of the League of Nations.

3 Only two trusteeships remain: the Trust Territory of New Guinea (Australia) and the Trust Territory of the Pacific Islands (U.S.A.).

4 (1950) I.C.J. Reports 128.

5 Id., 143.

6 South-West Africa-Voting Procedure (1955) I.C.J. Reports 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956) I.C.J. Reports 23.

7 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections (1962) I.C.J. Reports 319.

8 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase (1966) I.C.J. Reports 6. The casting vote of the President, Sir Percy Spender of Australia, was decisive.

9 G.A. Res. 2372 (XXII).

10 S.C. Res. 284 (1970).

11 Only four judges participated in both the 1966 and 1971 decisions. In 66 Judges Fitzmaurice and Gros joined the majority, while Judges Padilla rvo and Forster dissented. In 1971 the roles were reversed.

12 Only two members of the Court, Judges Fitzmaurice and Gros, dissented m the majority findings that the General Assembly had validly terminated Mandate and that South Africa could not justify its continued occupation the Territory. In resisting the Court's conclusion that other states were igated to respond appropriately, they were joined by Judges Petren and

13 (1971) I.C.J. Reports 16, 35-41.

14 The 1966 majority judgment stated, for example, that in finding the claims of the applicant states non-justiciable, it did so “without pronouncing upon and wholly without prejudice to, the question of whether that Mandate is still in force”; South West Africa Cases (Ethiopia v. South Africc; Liberia v. South Africa), Second Phase (1966) I.C.J. Reports 6, 19.

15 (1971) I.C.J. Reports 16, 41-43.

16 Id., 49-50.

17 Id., 50.

18 Id., 47.

19 Ibid.

20 Id.,47-49.

21 Id., 49-50.

22 Id.,52.

23 Id.,52-53.

24 Id.,53.

25 Ibid.

26 Id.,54.

27 Ibid.

28 Id.,55.

29 Id.,55-56. The Court suggested exceptions to this general rule of no recognition when demanded by the predominant interest of the people Namibia. Thus multilateral treaties “such as those of a humanitarian characte the non-performance of which may adversely affect the people”, could exte to Namibia (id., 55). Likewise, the invalidity of South African legislati “cannot be extended to those acts, such as, for instance, the registration births, deaths and marriages, the effects of which can be igBored only to the detriment of the inhabitants of the Territory” (id., 56).

30 Id.,56.

31 Ibid.

32 The Court also ruled on a number of procedural aspects, including right of South Africa to appoint a judge ad hoc, disqualification of judges _f bias, judicial abstentio.. and questions of proof of facts. On all of these po the Court found against South Africa.

33 Id., 22.

34 Id., 49-50.

35 Id.,55.

36 Id., 45.

37 Id., 31.

38 Id, 57.

39 Id., 85-87.

40 Id., 67.

41 Id., 220-221.

42 Id., 223.

43 E.g., the Court’s concession of such wide powers of the United Nations— under Art. 10 of the Charter for the General Assembly, under Arts 24 and 25 for the Security Council, and under Art. 80 for the protection of rights originally within the mandate system; the rule of “dynamic” interpretation for legal institutions; and the mechanism of termination of treaty obligations for material breach.

44 Cf. the reaction of one critic that the Opinion appears to proceed from a desire to create a receptive climate, and to make up in this way for the lack of substance in an argumen which professes to be judicial. Claiming to base its reasoning on the Charter itself, it in fact adds to it, having failed to find support there. This is not logical reasoning but special pleading. [Translation] J. Nisot, “La Namibie et la Cour Internationale de Justice: L'Avis Consultative du 21 Juin 1971” (1971) 75 Revue Generate de Droit International Public 933, 943.

45 South West Africa Case 1971 (a pamphlet apparently published by the vemment of South Africa) 22.

46 Cf. the long-standing South African argument that it is under no obligation bide by advisory opinions. This has been repeated for the 1971 Opinion: It must, of course, not be forgotten that this Opinion of the Court, like all its Advisory Opinions, has no legally binding force PTJd therefore no State is or can be obliged to abide by or give effect to it. (ld., 1.) (1971) I.C.J. Reports 16, 168-169.

47 (1971) I.C.I. Reports 16, 168-169.

48 Both the General Assembly and the Security Council welcomed the 1971;, Opinion: G.A. Res. 2871 (XXVI) and S.C. Res. 301 (1971). Another General Assembly resolution continued the activities of the United Nations Fund on Namibia reported that the Court Opinion affirmed the Council's authority as the (interim) de jure Government of Namibia (para. 190); further, the Council proposed an array of future activities to implement the Court Opinion Report of the United Nations Council for Namibia G.A.O.R., Twenty-sixth Session, Supp. No. 24 (Doc. No. A/8424)