South West Africa Cases Research Articles

Untying the Grotian Knot: How Tanaka Kōtarō’s Christian approach to international law disentangled the moral quandary of the South West Africa Cases

Untying the Grotian Knot: How Tanaka Kōtarō’s Christian approach to international law disentangled the moral quandary of the South West Africa Cases

Institutional Consolidation of the International Court of Justice after the Southwest Africa Case

Institutional Consolidation of the International Court of Justice after the Southwest Africa Case

‘There was an elephant in the court room’: Reflections on the role of Judge Sir Percy Spender (1897–1985) in theSouth West Africa Cases(1960–1966) after half a century

AbstractThis article argues that theSouth West Africa Caseswere brought to an ignominious end because the cases were about self-determination as much as they were about apartheid. For liberals like Judge Sir Percy Spender, the President of the Court, political systems based on majority rule looked suspiciously like authoritarian regimes modelled on the Soviet Union during the Cold War. It is submitted that, given the controversy surrounding self-determination in international law, Sir Percy wanted to avoid addressing the merits of the cases. Self-determination was the proverbial ‘elephant in the court room’ that Sir Percy wanted to avoid at all costs. This article builds upon earlier archival research on theSouth West Africa Casesby taking a closer look at Sir Percy's role in the cases and his views on self-determination. It is argued that what ‘killed’ the cases was Sir Percy's belief that Ethiopia and Liberia were seeking to ‘legalize’ self-determination with a view to further uniting the Afro-Asian bloc at the United Nations with the Soviet Union against the West.

Self-Determination during the Cold War: UN General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)

This article uses the history of partition to assess when self-determination became a rule of customary international law prohibiting partition as a method of decolonization. In so doing it revisits the partitions of Indochina, Korea, India, Palestine, Cyprus, South Africa, and South West Africa, and explains that UN practice underwent a transformation when the UN General Assembly opposed the United Kingdom’s partition proposals for Cyprus in 1958. Two years later, the UN General Assembly condemned any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country in Resolution 1514 (1960). The illegality of partition under customary international law was raised during the second phase of the South West Africa Cases (1960–1966) in respect of South Africa’s homelands policy, but the International Court of Justice (ICJ) infamously did not address the merits of those cases. The illegality of partition was also raised in the arbitration between the United Kingdom and Mauritius over the establishment of the British Indian Ocean Territory in 1965. Like the ICJ in the South West Africa Cases, the Arbitral Tribunal decided that it did not have jurisdiction to address the legality of the British excision of the Chagos Archipelago from Mauritius, even though the legality of the excision was argued at length between counsels for Mauritius and the United Kingdom in their oral pleadings and written statements. However, in their joint dissenting opinion, Judge Rüdiger Wolfrum and Judge James Kateka expressed their opinion that self-determination had developed before 1965, and that consequently the partition was unlawful. This paper agrees that selfdetermination prohibited the partition of Mauritius to establish the British Indian Ocean Territory, a new colony, in 1965 although self-determination probably did not emerge as a rule of customary international law until the adoption of the human rights covenants in 1966, after the excision of the Chagos Archipelago in 1965, but before the passage of the Mauritius Independence Act in 1968.

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

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.

The South West Africa Cases

Namibia became independent on 21 March 1990. The story of the Namibian struggle for independence, which stretched over seven decades, belongs to the past and will, of course, always be of immense historical interest. For purposes of this note, historical data will only be brought in, as far as it relates to the South West Africa cases.

Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests

AbstractThe Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.

The South-West Africa Cases and the Development of International Law

The South-West Africa Cases and the Development of International Law

The South-West Africa Case

The South-West Africa Case

1968 Prize Award Essay The South West Africa Cases and the Jurisprudence of International Law

The South West Africa Cases presented the International Court of Justice (ICJ) with a choice not only between the parties to the suit but also between rival claims about the nature of international law itself. Perhaps every case presents the Court with a choice of some degree between jurisprudential foundations, but in the South West Africa Cases the choice is striking.

Table of Cases Before International Courts, Commissions and Arbitral Tribunals

Barcelona Traction, Light & Power Co. case (Belgium v. Spain) Northern Cameroons case (Cameroon v. United Kingdom) North Sea continental shelf cases Denmark v. Federal Republic of Germany; Netherlands, v. Federal Republic of Germany) South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa) United Nations expenses in the Congo and Middle East

Book Reviews : South West Africa and its Human Issues. By JOHN H. WELLINGTON (Oxford, Clarendon Press, 1967). xxiv + 461 pp. 84s. South West Africa: Travesty of Trust. Edited by RONALD SEGAL and RUTH FIRST (London, André Deutsch Limited, 1967). 352 pp. 45s. The South-West Africa Case. By M. HIDAYATULLAH (London, Asia Publishing House, 1967). ix + 144 pp.

Book Reviews : South West Africa and its Human Issues. By JOHN H. WELLINGTON (Oxford, Clarendon Press, 1967). xxiv + 461 pp. 84s. South West Africa: Travesty of Trust. Edited by RONALD SEGAL and RUTH FIRST (London, André Deutsch Limited, 1967). 352 pp. 45s. The South-West Africa Case. By M. HIDAYATULLAH (London, Asia Publishing House, 1967). ix + 144 pp.

The South-West Africa Cases (Second Phase)1

The South-West Africa Cases (Second Phase)1

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa). (Preliminary Objections.)

South West Africa Cases (Ethiopia <i>v</i>. South Africa; Liberia <i>v</i>. South Africa). (Preliminary Objections.)

The South West Africa Cases (1966): Two Views

The South West Africa Cases (1966): Two Views

The South West Africa Cases (Second Phase)

The South West Africa Cases (Second Phase)

The South West Africa Cases a Personal Analysis

The South West Africa Cases a Personal Analysis

The South West Africa Cases

The South West Africa Cases

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase

The South West Africa Cases: an Appraisal

Ethiopia and Liberia instituted litigation in 1960 before the International Court of Justice (ICJ) to test the legality of South Africa's administration of the mandated territory of South West Africa. The ICJ received, thereby, an opportunity to deal with a major question of international concern. Hopes were raised that the role of international adjudication would be enhanced by the results of this litigation. The case was also expected to demonstrate to the new states that the procedures and institutions of traditional international law could be used to promote, as well as to retard, their distinctive goals in international life.