Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases

Abstract

This paper revisits the controversy of Judge Sir Muhammad Zafrulla Khan's recusal from the South West Africa cases using new information from the National Archives in Australia, India, South Africa, and the United Kingdom, including an unpublished manuscript written by the Australian judge and the Court's President Sir Percy Spender. Sir Percy's manuscript, which addresses the “recusal” controversy and the 1966 Decision, raises uncomfortable questions about the politics of international law within the Court in the 1960s. In many ways, Judge Zafrulla's struggle with Sir Percy at the ICJ can be analogized to the struggle of non-European peoples to self-determination. The internal “legal” struggle within the Court paralleled the larger “political” struggle outside the Court. Zafrulla would win the struggle, however, when as President of the Court during the 1971 Advisory Opinion on Namibia he would contribute to decolonization, a possibility he foresaw when he was forced to recuse himself.