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4 Legal Acts, 4.1 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] ICJ Rep 16

Brianne McGonigle Leyh

From: Judicial Decisions on the Law of International Organizations

Edited By: Cedric Ryngaert, Ige F Dekker, Ramses A Wessel, Jan Wouters

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Published in print:: 01 March 2016

ISBN:: 9780198743620

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Subject(s):: Occupation — Responsibility of international organizations — Judicial decisions

4.1 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] ICJ Rep 16

Relevance of the case

The Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia touches upon the role of the International Court of Justice (ICJ) in exercising a review over the factual and legal determinations of other principal UN organs, including the UN General Assembly (GA) and the UN Security Council (SC). In its opinion, the ICJ held by thirteen votes to two that South Africa’s continued presence in the territory of South West Africa (Namibia) was illegal and that South Africa was obliged to withdraw its administration and end its occupation of the territory. It further found by eleven votes to four that member states of the UN must recognize the illegality of South Africa’s occupation of Namibia and refrain from any and all acts implying recognition of the illegal occupation including the lending of support to the South African government. Finally, it called upon non-member states of the UN to acknowledge the illegality of the occupation and decline assistance to South Africa with regard to Namibia. Ultimately, the Court emphasized that UN member states are bound by their legal obligations and are required to recognize illegal conduct and refrain from providing assistance or support to the violating state. The relevance of the case, with regard to international organizations and legal acts, hinges on the findings related to the role of the ICJ as a judicial institution vis-à-vis its more political counterparts within the UN organization, the dissolution and succession of international organizations, and the power and limits of international organizations to ensure compliance with their rules and standards.

I. The facts

South West Africa, the former name for modern-day Namibia, fell under German colonial control in 1884. However, after the First World War, under the Treaty of Versailles, it was declared a League of Nations Mandate, with South Africa responsible for its administration. A League of Nations Mandate was a legal term assigned to territories that were transferred from the control of one country to another after the end of the war, often with one country administering the territory on behalf of the League until independence could be gained. When the League of Nations dissolved after the Second World War, it was agreed at the Yalta Conference that any remaining mandates should be placed under the trusteeship of the UN. All of the remaining mandates, with the sole exception of South West Africa, became UN Trust Territories.(p. 160)

In the case of South West Africa, South Africa refused to place it under trusteeship and instead requested that it be allowed to annex the territory. Indeed, it took steps to do so, enforcing apartheid practices and allowing white citizens to represent the territory in the South African Parliament. The refusal of South Africa to turn South West Africa into a trusteeship resulted in a 1950 ruling by the ICJ. In this brief ruling, the Court held that South Africa was not obliged to convert South West Africa into a trust territory. However, it was still obliged to act in accordance with the League of Nations Mandate, for which the GA assumed the supervisory role, and that South Africa would need to file periodic reports on the mandated territory as requested. Nevertheless, South Africa did not file reports and continued its actions of annexing the territory. Prior to the issue coming before the ICJ in the form of a request by the SC for an advisory opinion in 1970, the question of South Africa’s controversial presence in Namibia continued to arise before both the GA and the SC as well as the ICJ.

In 1966, the ICJ found that Ethiopia and Liberia lacked the required legal standing to obtain a decision on whether South Africa violated its obligations under the mandate for South West Africa. Shortly afterwards, the GA passed Resolution 2145 (XXI), declaring South Africa in breach of its obligations as an administrator of a mandate and terminating the mandate. It then placed South West Africa under the direct responsibility of the UN and in 1967 created a UN Council for South West Africa responsible for administering the territory until independence.

In 1968, the SC passed Resolutions 245 and 246 endorsing the GA’s Resolution 2145 (XXI). Thereafter, in 1969, the SC, in Resolution 269, requested South Africa to withdraw its administration from South West Africa. The South African government refused and the SC passed Resolution 276 (1970), declaring its continued presence illegal and noting that ‘all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid’. It then called on all states, including those that were not member states to the UN, ‘to refrain from any dealings with the Government of South Africa which are inconsistent with [the declaration]’. This resolution, and the preceding resolutions endorsing the GA’s resolution, were adopted with France and the United Kingdom abstaining.

In order to help resolve the legal (and political) questions surrounding the various resolutions, the SC asked the ICJ, in Resolution 284, for an advisory opinion on what the legal consequences would be for states concerning the continued presence of South Africa in Namibia notwithstanding SC Resolution 276 (1970). South Africa objected to the proceedings.

II. The legal question

The main legal question posed by the SC to the ICJ was ‘What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970)?’

(p. 161) III. Excerpts

[…]

25. The question of Namibia was placed on the agenda of the Security Council as a ‘situation’ and not as a ‘dispute’. No member State made any suggestion or proposal that the matter should be examined as a dispute, although due notice was given of the placing of the question on the Security Council’s agenda under the title ‘Situation in Namibia’. Had the Government of South Africa considered that the question should have been treated in the Security Council as a dispute, it should have drawn the Council’s attention to that aspect of the matter. Having failed to raise the question at the appropriate time in the proper forum, it is not open to it to raise it before the Court at this stage.[…]

27. In the alternative the Government of South Africa has contended that even if the Court had competence to give the opinion requested, it should nevertheless, as a matter of judicial propriety, refuse to exercise its competence.[…]

29. It would not be proper for the Court to entertain these observations, bearing as they do on the very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of the law, independently of all outside influence or interventions whatsoever, in the exercise of the judicial function entrusted to it alone by the Charter and its Statute. A court functioning as a court of law can act in no other way.[…]

32. Nor does the Court find that in this case the Security Council’s request relates to a legal dispute actually pending between two or more States. It is not the purpose of the request to obtain the assistance of the Court in the exercise of the Security Council’s functions relating to the pacific settlement of a dispute pending before it between two or more States. The request is put forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the Court on the consequences and implications of these decisions.

[…]

40. The Government of South Africa has also expressed doubts as to whether the Court is competent to, or should, give an opinion, if, in order to do so, it should have to make findings as to extensive factual issues. In the view of the Court, the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’ as envisaged in Article 96 of the Charter. The reference in this provision to legal questions cannot be interpreted as opposing legal to factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues.

[…]

As to the position of the League, the Court found in its 1950 Advisory Opinion that: ‘The League was not, as alleged by [the South African] Government, a “mandatory” in the sense in which this term is used in the national law of certain States’. The Court pointed out that: ‘The Mandate was created, in the interest of the inhabitants of the territory, aid of humanity in general, as an international institution with an international object—a sacred trust of civilization’. Therefore, the Court found, (p. 162) the League ‘had only assumed an international function of supervision and control’ (I.C.J. Reports 1950, p. 132).

[…]

52. Furthermore, the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to al1 of them. The concept of the sacred trust was confirmed and expanded to all ‘territories whose peoples have not yet attained a full measure of self-government’ (Art. 73). Thus it clearly embraced territories under a colonial régime. Obviously the sacred trust continued to apply to League of Nations mandated territories on which an international status had been conferred earlier. A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514 (XV) of 14 December 1960), which embraces all peoples and territories which ‘have not yet attained independence’.

[…]

55. […] the League of Nations was the international organization entrusted with the exercise of the supervisory functions of the Mandate. Those functions were an indispensable element of the Mandate. But that does not mean that the mandates institution was to collapse with the disappearance of the original supervisory machinery. To the question whether the continuance of a mandate was inseparably linked with the existence of the League, the answer must be that an institution established for the fulfilment of a sacred trust cannot be presumed to lapse before the achievement of its purpose. The responsibilities of both mandatory and supervisor resulting from the mandates institution were complementary, and the disappearance of one or the other could not affect the survival of the institution.

[…]

89. Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned. The question of the validity or conformity with the Charter of General Assembly resolution 2145 (XXI) or of related Security Council resolutions does not form the subject of the request for advisory opinion. However, in the exercise of its judicial function and since objections have been advanced the Court, in the course of its reasoning, will consider these objections before determining any legal consequences arising from those resolutions.

90. […] The mandatory Powers while retaining their mandates assumed, under Article 80 of the Charter, vis-à-vis all United Nations Members, the obligation to keep intact and preserve, until trusteeship agreements were executed, the rights of other States and of the peoples of mandated territories, which resulted from the existing mandate agreements and related instruments, such as Article 22 of the Covenant and the League Council’s resolution of 31 January 1923 concerning petitions. The mandatory Powers also bound themselves to exercise their functions of administration in conformity with the relevant obligations emanating from the United Nations Charter, which member States have undertaken to fulfil in good faith in all their international relations.

91. One of the fundamental principles governing the international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship.(p. 163)

[…]

94. In examining this action of the General Assembly it is appropriate to have regard to the general principles of international law regulating termination of a treaty relationship on account of breach. For even if the mandate is viewed as having the character of an institution, as is maintained, it depends on those international agreements which created the system and regulated its application. […] The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach [art. 60, para 3] (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject. […]

95. General Assembly resolution 2145 (XXI) determines that both forms of material breach had occurred in this case. […]

96. It has been contended that the Covenant of the League of Nations did not confer on the Council of the League power to terminate a mandate for misconduct of the mandatory and that no such power could therefore be exercised by the United Nations, since it could not derive from the League greater powers than the latter itself had. For this objection to prevail it would be necessary to show that the mandates system, as established under the League, excluded the application of the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character (as indicated in Art. 60, para. 5, of the Vienna Convention). The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded.

[…]

122. For the reasons given above, and subject to the observations contained in paragraph 125 below, member States are under obligation to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties, member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia. It will be for the competent international organs to take specific measures in this respect.

123. Member States, in compliance with the duty of non-recognition imposed by paragraphs 2 and 5 of resolution 276 (1970), are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there. They should also make it clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia.

124. The restraints which are implicit in the non-recognition of South Africa’s presence in Namibia […] impose upon member States the obligation to abstain from (p. 164) entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory.

125. In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.

126. As to non-member States, although not bound by Articles 24 and 25 of the Charter, they have been called upon […] to give assistance in the action which has been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof.

IV. Commentary

There is likely no single political issue that has involved the ICJ more than the situation in South West Africa (Namibia).¹ From 1949 through 1971, the advisory and contentious capacities of the ICJ were sought after on various aspects of the situation, with South Africa appearing six times before the Court concerning South West Africa.² In total, the Court issued four advisory opinions and two judgments. Today, the Court’s jurisprudence continues to be relevant. This case deserves attention because it deals with a number of complex issues pertinent to the development of international law and international organizations, including the League of Nations mandate system and powers and functions of the Court as well as the political organs of the UN.³

Therefore, in addition to its important contribution concerning the right of self-determination,⁴ the case is relevant for a number of reasons related to the theme of international organizations and legal acts. First, it sheds light on the roles of the various organs of the UN and how they interact with and reinforce one another. Second, its approach towards dissolution and succession of the League of Nations and its mandate system tested commonly held notions but succeeded in gaining support. Finally, the advisory opinion seeks to strengthen the position of the international organization by emphasizing the importance of the duty to co-operate. It has generated debate (p. 165) over the powers and functions played by the various law-making and law-interpreting organs within the UN, and can be viewed as a progressive approach towards the interpretation of the law.

A. Roles of UN organs and their relationship with one another

The UN Charter lays out the roles and responsibilities of the various bodies falling under the UN. Unlike in many domestic systems, the ICJ does not have the power of judicial review. In other words, strictly speaking, the Charter does not give it the power to review the legality of decisions taken by other organs of the UN. However, it is, nonetheless, the principal judicial organ of the UN and in a request for an advisory opinion it may be asked to decide upon the validity of certain action in accordance with international law.

In this case, the Court was asked to look into the legal consequences for states related to the continued presence of South Africa in Namibia. While the SC did not ask the Court to specifically pronounce upon the validity of the actions of the SC or GA, both France and South Africa raised the issue by arguing that the GA acted ultra vires in adopting Resolution 2145 (XXI) terminating South Africa’s mandate. As a result of it being raised, the Court did examine the validity of SC and GA resolutions underlying the request for an advisory opinion. It allotted a good portion of the opinion to justify its conclusion that the resolutions were valid, though it based this power on some rather weak argumentation.⁵ Nevertheless, the opinion now lends strong support to the ability of the Court to review the validity of actions taken by political organs of the UN even when it is merely asked to pronounce upon their legal consequences.⁶ Consequently, political organs should be on notice that a question concerning the meaning or legal consequence of their actions can lead to the Court exercising review. Indeed, this decision is significant because it contributed to the development of the power of judicial review of the actions of international organs of the UN.

In reviewing the validity of the relevant resolutions, the Court dealt with a number of issues related to the powers and functions of the UN. It also addressed the powers and functions of the League of Nations with respect to mandates. A key question that the Court addressed was the power of the League of Nations to revoke or terminate a mandate, without the mandatory’s consent, as well as the succession of the UN to have such a power.

B. Dissolution and succession of international organizations

Parallel with the development of the modern nation-state is the growth of international organizations, to the point where they have become indispensable.⁷ International (p. 166) organizations facilitate co-operation amongst states, often providing an important forum for conflict resolution. Foremost among the global, international organizations is the UN. The emergence and growth of the UN system, built upon its predecessor, the League of Nations, has enabled the law to develop and grow at a rapid pace.

Every so often a major international organization is dissolved and its operations are assumed by another, often times newer, organization. When the League of Nations dissolved in 1946 the international community made practical arrangements for the transfer of its property as well as many of its functions to the UN. However, there was no automatic transfer and according to Brownlie the ‘element of continuity depended on the consent of the UN’.⁸ With regard to functions under treaties, any transfer of functions to the UN required the consent of the parties to the relevant treaty. With regard to the Permanent Court of International Justice (which dissolved in 1946), instruments containing acceptances of the jurisdiction of the PCIJ were deemed to be acceptances of the jurisdiction of the new ICJ by specific provisions in the new Statute.

The present case deals with the legal consequences of the dissolution of the League of Nations, which had specific organs responsible for supervising the execution of the mandate for South West Africa, and South Africa’s refusal to enter into a trusteeship agreement with the successor organization, the UN. Ultimately, the Court found that the mandate agreement continued to exist despite the dissolution of the League but it did not base this decision on any principle of succession between organizations.⁹ Instead, it concluded that UN organs (namely the GA) were to exercise supervisory functions despite the fact that these functions ‘were neither expressly transferred to the UN nor expressly assumed by the organization’.¹⁰ The Court took the position that the mandate itself constituted an international status for the territory which continued irrespective of the existence of the League. Moreover, the Court concluded that the resolution dissolving the League of Nations declared that the League’s supervisory functions of the mandates were ending, not the mandates themselves.

Since the mandates did not end, the Court decided that the obligation of the mandatory power to submit to supervision also did not end. The supervision was being performed by the UN and the Court found that the GA was legally qualified to exercise these supervisory functions. The reasoning provided by the Court is not easy to reconcile with accepted principles of succession between organizations. Succession between international organizations occurs when the functions, rights, and obligations are transferred from one organization to another. This may occur in various ways, including by way of replacement, absorption, merger, effective secession of a party, or by a simple transfer of certain functions from one organization to another. An agreement must be reached and depends upon competence of the successor organization to perform the functions transferred from the former organization. These principles suggest that upon dissolution of the League of Nations, the UN could only have been invested with the powers to supervise the mandates if specific arrangements to that effect had been made, if such a succession had been implied in some way, or if the mandatory Page Id: 166References(p. 167) power (in this case, South Africa) consented to the succession by, for example, carrying out its reporting obligation to the new entity.¹¹

Instead, the main basis for the Court’s finding was ‘the necessity for supervision’, which continued regardless of the dissolution of the supervisory organ under the mandates system. According to Judge Fitzmaurice, who dissented, the advisory opinion supports the position that an ‘automatic devolution’ of functions from one organization to another may occur and that in certain situations there may even be a presumption that such a devolution takes place.¹² As such, the opinion embraces the idea that cases of ‘automatic succession’ are not prohibited in cases of necessity.

Once the Court found that the UN had legally succeeded to the League’s supervisory powers over the mandate, it ruled that the mandate would be terminable, without the mandatory’s consent, if there had been a serious breach of the mandatory’s obligations. In this case, the Court found that the GA was permitted to terminate the mandate since South Africa, as the mandatory, caused a serious breach by not reporting to the new supervisory power, the GA.

The fact that the GA has no power to make binding decisions and is not a judicial organ did not matter. The Court found that the mandate system itself was an institution and stressing the right to self-determination as well as the ‘sacred trust of civilization’ underlying the mandates, adopted a rather liberal construction of the law. The GA was not acting under its regular functions under the Charter. Instead, the Court found that it was acting within its rights as the supervisory power of the mandates and therefore could make binding decisions with regard to the mandates. This decision is quite extraordinary. It supports the notion that the GA can exercise powers outside of the context of the UN Charter.¹³ It also gives some weight to the argument that GA declarations can be more than recommendatory.¹⁴ The implications for international law and the role and function of the GA are significant.

In finding a serious breach, the Court did not go into the serious human rights violations related to the apartheid policies, though some brief mention is made of them. Instead, using treaty law and general principles of law, the serious breach found by the Court rested on the failure of South Africa to report to the UN on the status of the mandate. Despite requests from South Africa, it found it unnecessary to carry out a factual investigation, into the alleged failure to fulfil its obligations under the mandate. It is interesting in this regard to note that today the findings would have likely hinged on the violations of apartheid practices as a material breach of the mandate agreement, which at that time were not yet ripe.

Several important points emerge from the findings of the Court. First, it reinforced the idea that a treaty can be terminated on account of a material breach, and, second, it relied on the Vienna Convention on the Law of Treaties (VCLT) for its finding on termination, not in the context of two states but rather in the context of a state and (p. 168) an international organization.¹⁵ This second point is remarkable because according to the VCLT it is applicable only to agreements between states and had not yet achieved the arguable status of customary international law since so few states had at that time ratified it. Having concluded that the actions of the SC and GA were valid, the Court then determined the legal consequences of the continued presence of South Africa in Namibia.

C. Reinforcing the moral authority of the international organization

Like the GA and the SC before it, the ICJ, perhaps unsurprisingly, found South Africa’s actions in Namibia were illegal on the grounds of a material breach of a treaty, namely the mandate agreement. It also added, somewhat confusingly, that ‘a binding determination made by a competent organ of the UN to the effect that a situation is illegal cannot remain without consequence’. As a result, the ICJ found that South Africa needed to withdraw its administration from the territory and required that other states had a duty to co-operate with the UN by prohibiting them from recognizing the acts of South Africa in Namibia as legal or valid and a duty to ‘bring that situation to an end’.¹⁶

The non-recognition requirements found in this case appear to make collective non-recognition a precondition for any group response and arguably is the minimum required by states to serious breaches of a mandate in this particular case or those referred to in art. 40 of the UN Charter. Notwithstanding this non-recognition, the Court recognized the negative consequences that could result from non-recognition and purported to minimize these. In fact, throughout the opinion, the Court appears to regard the people of Namibia as having rights under international law, most notably with the recognition of self-determination as a legal right rather than simply a moral claim. In addition to non-recognition, the Court goes on to specifically prohibit states from entering into economic and other dealings with South Africa which could assist South Africa in its illegal occupation of Namibia and asserts a duty of states to ‘bring [the] situation to an end’.¹⁷ This latter consequence is interesting as it goes beyond simple non-recognition and seems to require positive action by states—some of whom did take diplomatic action to help negotiate an agreement later on.

The opinion setting out the legal consequences and the Court’s attempts at remedying the situation show the relative limits provided under international law.¹⁸ However, it also illustrates the moral force behind such actions when three main bodies within the UN organization call for a collective state response. Though there was no further judicial action in the case, other UN organs,¹⁹ together with a number of states, continued to push for the withdrawal of South Africa. However, another seven years would pass until South Africa announced that it accepted proposals negotiated by (p. 169) five Western powers, including the UK, the US, France, Canada, and West Germany, for Namibian independence via a UN supervised election and peace-keeping force.²⁰ After further difficulties,²¹ another twelve years would pass before Namibia would finally obtain its independence on 23 April 1990. Though a long and difficult process, the situation in Namibia provides an excellent example of how three main bodies of the UN, the SC, the GA, and the ICJ, worked in parallel to achieve a common, desired result. Although the impact of the opinion is hard to measure, the Court’s decision likely bolstered the resolve of the UN political organs to continue to push for a withdrawal.²²

It is clear that international organizations, and the UN in particular, make increasingly significant contributions to international law. In addition to the decisions and judgments of international judicial bodies, state practice within international organizations is becoming an important element when looking at the process of customary law formation or discerning general principles of law. There remains, however, a great deal of debate over the powers and functions played by the various law-making and law-interpreting organs. While some have criticized the stretching of legal concepts,²³ others view it as a ‘progressive, policy-oriented approach’ towards interpretation of the law, which opposes strict state sovereignty and the exclusion of domestic affairs from the UN organization’s sphere of influence.²⁴ Undoubtedly, it seems to lend weight to the importance of legal consensus within an international institution and how this may result in a new legal force of ‘law-generating’ capabilities.²⁵

Footnotes:

¹ M. Pomerance, ‘The ICJ and South West Africa (Namibia): A Retrospective Legal/Political Assessment’, (2004) 12 Leiden Journal of International Law 425, 435.

² For a chronology of the case, see J. Dugard, ‘The Opinion on South-West Africa (Namibia): The Teleologists Triumph’, (1971) 88 South African Law Journal 460–77.

³ O.J. Lissitzyn, ‘International Law and the Advisory Opinion on Namibia’, (1972) 11 Columbia Journal of Transnational Law 50–73, at 50.

⁴ [1971] ICJ Rep 16 at 31.

⁵ [1971] ICJ Rep 16 at 45. The separate opinions of Judges Petrén, Onyeama, and Dillard provide stronger statements in support of the Court’s actions. Judge Padilla Nervo’s separate opinion opposes the position taken by the Court.

⁶ Lissitzyn (n. 3), 53.

⁷ M.N. Shaw, International Law (6th edn, Cambridge, Cambridge University Press 2008), p. 1282.

⁸ I. Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008), p. 669.

⁹ [1950] ICJ Rep 128 at 134–7; this was reaffirmed in [1971] ICJ Rep 16 at 37.

¹⁰ [1950] ICJ Rep 136.

¹¹ [1971] ICJ Rep 227.

¹² I. Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008), p. 670.

¹³ P.H. Kooijmans, ‘The Advisory Opinion on Namibia of the International Court of Justice’, (1973) 20 Netherlands International Law Review 17, 21.

¹⁴ Lissitzyn (n. 3), 58.

¹⁵ Lissitzyn (n. 3), 61.

¹⁶ [1971] ICJ Rep 16 at 54.

¹⁷ [1971] ICJ Rep 16 at 54.

¹⁸ E. Coleman Jones, ‘Limitations of the International Legal Mechanism: Namibia (South West Africa) A Case Study’, (1971–73) 17 Howard Law Journal 637–60, at 637.

¹⁹ The advisory opinion was later approved that same year by another SC resolution, which once again endorsed the territorial integrity of Namibia, see SC Res. 301 (1971).

²⁰ SC Res. 435 (1978).

²¹ See S/14459; S/14460/Rev.1; S/14461; and S/14462.

²² Pomerance (n. 1), at 432.

²³ See M. Wiechers, ‘South West Africa: The Background, Content and Significance of the Opinion of the World Court of 21 June 1971’, (1972) 5 Comparative and International Law Journal of South Africa 123–70.

²⁴ M. Wiechers, ‘The South West Africa Cases’, (2010) 26 South African Journal on Human Rights 320–5, at 323.

²⁵ Pomerance (n. 1), at 434.

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