Case Analysis: The ICJ and South West Africa (Namibia): A Retrospective Legal/Political Assessment

Leiden Journal of International Law

Volumn 12, Issue 2, 1999, Pages 425-436

  Pomerance, Michla ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

Advisory Opinions; International Court of Justice; jurisdiction; South West Africa (Namibia) cases

Indexed keywords

EID: 74049150156     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156599000199     Document Type: Article

References (20)

1. J. Dugard, The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy between South Africa and the United Nations 89–127 (1973).
2. See, e.g. the discussion of some of these considerations in A. D'Amato, Legal and Political Strategies of the South West Africa Litigation, 4 Law in Transition Quarterly 1, at 17-18 (1967)
3. (citing a memorandum of law presented to the OAU by Ernest A. Gross [later, counsel to Ethiopia and Liberia in the Court litigation]); E.A. Gross, The South West Africa Case: What Happened?, 1966 Foreign Affairs, at 39-42.
4. See also with respect to the apartheid issue, E.S. Landis, The South West Africa Case: Remand to the United Nations, 52 Cornell Law Quarterly 633 (1967);
5. Art. 94 of the UN Charter which, in para. I, affions the obligation of UN members to comply with ICJ decisions in cases to which they are parties, provides, in para. 2, that if a state fails to fulfill this obligation, “the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment” (emphasis added). The question arose, both at San Francisco and its immediate aftermath, whether this provision endowed the Security Council with an independent basis for taking binding decisions, even in the absence of a threat to international peace and security. The travaux prepamtoires offer no definitive answer to this question. See M. Pomerance, The United States and the World Court as a 'Supreme Court of the Nations': Dreams, Illusions, and Disillusion 192-196 (1996), In the early postwar period, the US legal experts who had participated in the drafting of the provision categorically denied that there was any intention to increase the Council's powers. See the testimony of Green Hackworth (Legal Adviser of the State Department and key participant in the committee at San Francisco [IVIl] which dealt with the International Court of Justice), in Charter of the United Nations, Hearings Before the Senate Committee on Foreign Relations, 79th Cong. 1st Sess. at 331332 (1945); and L. Pasvolsky, id. at 286-287. The Council, Pasvolsky assured the Senate, was “not a sheriff'. It “may call upon the country concerned to carry outthe judgment, but only if the peace of the world is threatened, and if the Council has made a determination to that effect”. See also Senator Connally's report, filed on the basis of the Hackworth-Pasvolsky testimony, S. Exec. Rept. 8, 79th Cong. 1st Sess. at 14 (1945); and the statement of Charles Fahy in Compulsory Jurisdiction, International Court of Justice, Hearings Before a Subcommittee of the Senate Committee on Foreign Relations, on Senate Resolution 196, 79th Cong. 2nd Sess. at 142 (1946). While the purport of the provision is still not free of controversy, the predominant opinion today sees in Art. 94(2) an additional, non-Chapter VII-linked basis for having the Security Council render legally binding decisions. See L.M. Goodrich, E. Hambro & A.P. Simons (Eds.), Charter of the United Nations: Commentary and Documents 556–557 (1969);
6. O. Schachter, Enforcement of International Judicial and Arbitral Decisions, 54 AJIL 1, at 18-22 (1960);
7. H. Kelsen, The Law of the United Nations 540–542 and 543 n.1 (1950); and
8. N. Bentwich & A. Martin, A Commentary on the Charter of the United Nations 168 (1950).
9. L.C. Green, The United Nations, South West Africa and the World Court, 7 Indian Journal of International Law 521 (1967);
10. G. Fischer, Les Reaclions devant I'Arret de la Cour Internationale de Justice concernant Ie SudOuest Africain, 12 Annuaire Francais de Droit International 154 (1966);
11. R.P. Anand, Studies in International Adjudication 145 (1969);
12. R.A. Falk, The South West Africa Cases: An Appraisal, 21 International Organization 1, at 18-19 (who predicted that “the triumph ofjudicial conservatism in 1966 will be the last such triumph in the ICJ for many years to come”).
13. For a most incisive discussion of the factor of “legitimacy” in international relations, see I.L. Claude, Jr. Collective Legitimization as a Political Function of the United Nations, 20 International Organization 367 (1966),
14. reproduced in I.L. Claude, Jr. States and the Global System: Politics, Law and Organization 145–159 (1988).
15. See, generally, L. Gross, The International Court of Justice and the United Nations, Hague Academy,
16. See also, for demolition of the concept of the “organized international community” as a legal construct, G. Arangio- Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration oj Principles of Friendly Relations, Hague Academy, 137 Recueil des Caurs 460–469 and 629-742 (1972/Ill).
17. The dissenting opinions of Judge Schwebel at all stages of the proceedings merit careful reading in this regard. See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of to May 1984, 1984 ICJ Rep. 169, at 190-207 (Dissenting Opinion, Judge Schwebel); Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, 1984 ICJ Rep. 392, at 558-637 (Dissenting Opinion, Judge Schwebel); and Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 259-527 (Dissenting Opinion, Judge Schwebel). See also, in general, the scholarly criticism in the American Journal of International Law, especially, A. D'Amato, Trashing Customary International Law, 81 AJIL 93, at 101 (1987); T.M. Franck, Some Observations on the ICJ's Procedural and Substantive Innovations, id. at 116; and
18. J.L. Hargrove, The Nicaragua Judgment and the Future of the Law of Force and Self-Defense, id. at 135.
19. see J. Dugard, 1966 and All That: The South West Africa Judgment Revisited in The East Timor Case, 8 African Journal of International and Comparative Law 549 (1996).
20. For further consideration of the problem of resorting to the Court for the purpose of obtaining a specific response, see M. Pomerance, The Advisory Role of the international Court of Justice and Its 'Judicial” Character: Past and Future Prisms, in A.S. Muller et. al. (Eds.), The International Court of Justice: Its Future Role after Fifty Years 295, at 295-296,311-313, and 323 (1997).