THE SOUTH WEST AFRICA CASE: WHAT HAPPENED?

The International Court of Justice shall be the principal judicial organ of the United Nations." Article 92 of the United Nations Charter thus rounds out the grand design of what the Court itself has described as the "organized international community." This is the structure or framework for world order, which, however nascent and rudimentary, is an indispensable feature of the modern age.

It was to the principal judicial organ of the United Nations that Ethiopia and Liberia submitted the protracted and unresolved dispute with South Africa concerning the interpretation and application of the Mandate for South West Africa, the very existence of which was denied by South Africa.

A summary of the history and background of the dispute is an essential prelude to the following discussion, which concerns: (1) Why the litigation was instituted. (2) What the Court did-1962. (3) What the Court did-1966. (4) Some lessons to be learned.

The Territory of South West Africa, a German colony prior to the First World War, was entrusted to South Africa in 1920 as a Mandate under the League of Nations Covenant. The Mandate System, of which South West Africa is the one vestigial remnant, comprised certain colonies and territories which, as a consequence of the war, had ceased to be under the sovereignty of the defeated states.

These colonies and territories, in the words of Article 22 of the League Covenant, were "inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world." The restoration of the colonial status quo ante or the immediate grant of independence were considered by the victors to be unacceptable solutions. Although the powers had publicly voiced opposition to territorial annexation as a proper end of victory, secret arrangements had in fact been made by Great Britain, France and Japan prior to the armistice. These arrangements provided, among other things, that three British Dominions were to have the right to annex, respectively, German South West Africa, New Guinea and German Samoa. South Africa was to receive the first of these.

After prolonged, often bitter, discussions at Versailles, the Allied Powers- largely as a result of President Wilson's vigorous insistence-accepted the principle of "no annexation." The Mandate System was devised as a new international institution.