The Global Zeitenwende
How to Avoid a New Cold War in a Multipolar Era
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.
The heart and essence of the system is embodied in Article 22 of the Covenant: "the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant." The same Article provides that "the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League."
A Mandate for German South West Africa, accordingly, was "conferred upon his Britannic Majesty to be exercised on his behalf by the Union of South Africa" (then a member of the British Empire). His Britannic Majesty, in turn, agreed to accept the Mandate on behalf of the Union of South Africa and undertook "to exercise it on behalf of the League of Nations." As in the case of all Mandates, a Mandate agreement was confirmed by the Council of the League of Nations. This instrument, together with Article 22 of the Covenant itself, comprises the principles and defines the terms for the governance of the Territory.
As early as 1922, South Africa adopted the view that "C Mandates" (in which category South West Africa was placed) were-in the words of the South African leader, General Jan Christiaan Smuts-"in effect not far removed from annexation." The Permanent Mandates Commission, until it ceased to function in 1939, frequently recorded its disagreement with South African assertions of sovereignty over the Territory, as well as of the right to incorporate it as a fifth province. South Africa, nevertheless, submitted reports to the Commission and recognized the legal existence of the Mandate.
Soon after the dissolution of the League and the commencement of United Nations operations, and certainly by 1949, it became obvious that South Africa's conception of its legal obligations under the Mandate was essentially at variance with those of other members of the United Nations. In 1947, South Africa submitted its first and last report to the United Nations. By the end of 1948, it openly referred to "the previous Mandate, since expired."
The United Nations General Assembly, on December 6, 1949, requested the Court for an Advisory Opinion on certain questions concerning the Mandate. These centered upon the international status of the Territory and the international obligations of South Africa arising therefrom. The Government of South Africa, which appeared before the Court, contended that the Mandate had expired with the dissolution of the League. The Court unanimously held to the contrary, stating:
The Mandate was created in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object-a sacred trust of civilization. . . . If the Mandate lapsed, as the Union Government contends, the latter's authority would equally have lapsed. To retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified.
The Court ruled that the necessity for international supervision over the Mandate continues to exist despite the disappearance of the League of Nations Council, in as much as such supervision is an essential element of the Mandate System and the United Nations has an international organ performing supervisory functions similar to those performed by the League. Hence, the Court held, ". . . South Africa is under an obligation to submit to supervision and control of the General Assembly and to render annual reports to it."[i]
In response to another question posed by the General Assembly, the Court unanimously held that South Africa has no competence to modify unilaterally the international status of the Territory or any of the "international rules respecting the rights, powers and obligations relating to the administration of the Territory and the supervision of that administration."
The Advisory Opinion of 1950 was interpreted and applied by the Court in two supplementary Opinions of 1955 and 1956. The first of these upheld the voting procedures adopted by the Assembly on Mandate questions; the second affirmed the Assembly's right to grant oral hearings to petitioners from the Territory.
The 1950 Advisory Opinion, which was promptly accepted by the General Assembly, remained a dead letter. Year after year, unsuccessful efforts were made by successive agencies of the Assembly, and on its behalf, to negotiate with South Africa on the basis of the Advisory Opinion of 1950. South Africa, however, repudiated the Opinion, explicitly repeating its contention that the Mandate had lapsed.
All the while, the South African Government was extending, with increasing severity, the racially discriminatory laws and regulations which comprise the apartheid policy, and which were rigidly applied in the Territory-as in South Africa itself. These official policies and practices were universally condemned in regularly repeated United Nations resolutions. The response was a steady tightening of repressive administrative action. By 1960, it had become crystal clear that the process of resolution-passing by the General Assembly was no more than a perennial autumn rite. The requirements of justice and humanity made imperative an examination of realistic alternatives.
II. WHY THE LITIGATION WAS INSTITUTED
Decision to seek judicial recourse is never easily taken. As far back as 1957, the U.N. General Assembly had requested the Committee on South West Africa to study the legal action available to ensure that South Africa fulfilled its obligations under the Mandate.
The Special Committee appointed a working group consisting of representatives of Brazil, Finland and the United States to give the question special study and to report back to the Committee. The conclusions of the working group were fully discussed and accepted by the Committee, which advised the General Assembly that "there would be little doubt that the right to invoke Article 7 of the Mandate is enjoyed at any rate by those former members of the League which were members at the date of dissolution of the League and which are now members of the United Nations."[ii]
The Committee expressed the view that a "dispute," to which Article 7 referred, "may be of any nature," provided, of course, that "it related to the interpretation or application of one or more clauses of the Mandate or to the effect of the Mandate as a whole," including disputes "concerning the supervision functions themselves."
The Assembly all the while persevered in efforts to reach agreement with South Africa on a basis "which would continue to accord to the Territory of South West Africa an international status." The General Assembly established for this purpose a Good Offices Committee, consisting of the United States, the United Kingdom and Brazil. Toward the end of 1959, the Good Offices Committee regretfully reported that it had "not succeeded in finding a basis for an agreement under its terms of reference."
Shortly thereafter, the South African Foreign Minister, speaking at the United Nations, referred to the "previous" and "lapsed" Mandate. Condemnation of the policy of apartheid as a violation of the Mandate and the Charter of the United Nations was turned aside with the reproach that the Committee "seems to search for ulterior or bad motives in every single act of the South West Africa Administration."[iii] The end of the road of political action clearly had been reached.
Early in 1960, the Asian-African group at the United Nations discussed the feasibility of judicial recourse and explored availability of legal counsel. Subsequently, the Liberian Government requested the author to prepare a Memorandum of Law for circulation to governments in advance of the Second Conference of Independent African States, scheduled to convene at Addis Ababa in June 1960. After full discussion, in which the author was privileged to participate, the conference concluded "that the international obligations of the Union of South Africa concerning the Territory of South West Africa should be submitted to the International Court of Justice for adjudication in a contentious proceeding." Note was taken in the resolution of the Report of the Special Committee concerning legal action open to former League members.
The decision was a combined product of frustration and of a sense of responsibility. The objective was not to resolve doubt concerning the jurisprudence of the Mandate, which had its firm foundation in the Advisory Opinion of 1950, but to transform a dishonored, though authoritative, Opinion into an enforceable Judgment. The Court would, moreover, be given an opportunity to adjudicate upon the compatibility of an official policy of extreme racial discrimination with the international obligation "to promote to the utmost the material and moral well-being and the social progress of the inhabitants of the Territory." (Mandate, Article 2.)
There was, if possible, even less room for doubt that an official policy of extreme racial discrimination is legally, no less than morally, repugnant to such an obligation than there was that the Mandate subsisted and that South Africa owed a duty of international accountability for the conduct of its administration of the Territory.
Denunciations of apartheid, voiced by all responsible governments, and recorded in countless United Nations resolutions and international declarations, furnish a thesaurus of terms of opprobrium and revulsion: "a cancer on the body politic" (Japan); "a venomous and contagious disease" (Poland); a "bitter toxic" (United States); "morally abominable, intellectually grotesque and spiritually indefensible" (United Kingdom).
It was known-and confirmed out of the mouths of South Africa's own witnesses at the lengthy Court hearings on the merits-that, in the more than forty years of the conduct of this trust, not one "native" ever has been qualified in law, medicine, engineering, dentistry or registered nursing; none may form or join a labor organization with rights of collective bargaining; none may be employed in a skilled occupation; none may move from place to place without official permission; none may reside (except for purposes of labor) in areas designated as "White"; and none has a voice in government or in the administration of "Native" affairs.
If any realistic prospect had existed that members of the United Nations would repress, rather than merely condemn, South Africa's violations of its clear and present duties under the Mandate, the hazards, burdens and, above all, the time involved in litigation no doubt would have been avoided.
The difficulties with which enforcement of the Mandate would confront members-particularly South Africa's principal trading partners, the United States and the United Kingdom-are matters of public knowledge. More than one-third of South Africa's total trade is with these two countries. Britain's investments in South Africa total about one billion pounds sterling. Britain is South Africa's largest customer; South Africa is one of her principal markets. The economic stake of the United States in South Africa is large (of the order of $500,000,000) and growing. Both the United States and the United Kingdom, more particularly the latter, are vulnerable to South African economic and financial retaliation.
The new ingredient which would be introduced by a favorable judgment in a contentious proceeding-and this was the heart of the matter-would be the potential application of Article 94 of the United Nations Charter.[iv] The explicit grant of power to the Security Council to compel compliance with a Court Judgment (as distinguished from an Advisory Opinion) expressly vests in the Council what may be called an "executive" function, analogous to that in normal municipal systems. There was never any secret about the significance of Article 94 in the decision to seek judicial recourse.
It was the hope and expectation of the Applicant States, as well as of most other members of the international community, that a Judgment would impel the United Nations-in particular, South Africa's principal trading partners- to take effective action in support of the rule of law, embodied and reflected in the judicial process.
III. WHAT THE COURT DID-1962
In November 1960, Ethiopia and Liberia instituted proceedings against South Africa, by applications requesting the Court to adjudicate upon the issues in dispute between them and to grant suitable relief. The subject of the dispute was defined in the Applicants' Memorials: Whether the Mandate was still in force, whether the United Nations had supervisory authority, and whether South Africa was violating its obligations under the Mandate by, among other things, imposing an extreme form of racial discrimination upon the "non-White" inhabitants of the Territory.
The South African Government, as was its right under the rules of the Court, entered "preliminary objections," challenging the Applicants' standing to bring the suit and contending that the Court had no jurisdiction "to hear or adjudicate upon the questions of law and fact raised by the Applicants." After consideration of the briefs and arguments of the Parties, the Court rendered its Judgment of December 21, 1962, dismissing the objections and upholding its competence to proceed with the merits of the dispute which the Applicants had referred to it. The vote was 8 to 7.
The 1962 Judgment examined the origin and nature of the Mandate System, the character of South Africa's obligations as Mandatory, the legal interest of the Applicants in the performance of the Mandate and the functions of the United Nations and of the Court under the Mandate scheme. On all points the Court found that the Applicants had the required standing to bring the issue before it, and that it had jurisdiction to adjudicate upon the merits of the dispute.
One proposition which, the Court said, formed "the very basis of the applications" was whether the Mandate had lapsed, as South Africa insisted. If so, no application based upon that Government's duty to submit to the Court disputes relating to the interpretation or application of the Mandate could be accepted by the Court. The Judgment reaffirmed the unanimous Advisory Opinion of 1950, finding that "the Mandate as a whole is still in force." The Court repeated the 1950 conclusion that "to retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified."
A second prerequisite to the Court's jurisdiction to adjudicate upon the merits of the dispute was the Applicants' standing as States which had been members of the League of Nations at the time of its dissolution. The Court found not only that they had the right to invoke the Court's jurisdiction but, indeed, that such a right "continues to exist for as long as the Respondent holds on to the right to administer the territory under the Mandate." (I.C.J. Reports, 1962, p. 338.)
A third prerequisite to the Court's jurisdiction was that the dispute be of a character envisaged by Article 7 of the Mandate, in which South Africa had agreed to submit to the Court "any dispute whatever . . . relating to the interpretation or application of the provisions of the Mandate." This issue centered upon South Africa's contention that in as much as the dispute did not "affect any material interests of the Applicant States or their nationals," the dispute was outside the scope of Article 7. The Court dismissed this objection, holding that "The language [of Article 7] is broad, clear and precise: it gives rise to no ambiguity and it permits of no exception. . . . For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest in the observance of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its members." (I.C.J. Reports, 1962, p. 343.) The Court, accordingly, found that it had "jurisdiction to adjudicate upon the merits of the dispute."
IV. WHAT THE COURT DID-1966
The Judgment of July 18, 1966, rejected the Applicants' claims. It did so on the ground that ". . . the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject- matter of the present claims, and that, accordingly, the Court must decline to give effect to them." Again the vote was 8 to 7.
In the 44 months which elapsed between the two Judgments, the parties filed sixteen volumes of written pleadings and appeared in 100 Court sessions during six months.
On opening the oral proceedings in March 1965, the President of the Court said: "The Court is assembled today to deal with the merits of the South West Africa cases between Ethiopia and Liberia on the one hand and South Africa on the other." All the pleadings, hearings and evidence related solely to the merits of the dispute. Many questions were addressed by numerous Judges to the parties and to witnesses; these, too, all were directed to the merits of the dispute. No question indicated or implied that any judicial thoughts were bent in a direction other than adjudication upon the merits of the dispute referred to the Court by Ethiopia and Liberia.
The South African final submissions, like those of the Applicants, were based upon the assumption that the 1962 Judgment had settled all preliminary questions and that the Court was dealing with the validity of the claim before it, as distinguished from its admissibility. South Africa's submissions and arguments, both of law and fact, were directed solely toward establishing that the Mandate was no longer in effect, or, alternatively, that if the Court should hold that the Mandate was still in existence, South Africa was not subject to international supervision and was not in violation of the Mandate by reason of its apartheid policies.
In a dissenting opinion, Judge Philip Jessup of the United States commented: "The Judgment of the Court rests upon the assertion that even though-as the Court decided in 1962-the Applicants had locus standi to institute the actions in this case, this does not mean that they have the legal interest which would entitle them to a judgment on the merits. No authority is produced in support of this assertion, which suggests a procedure of utter futility."
Little purpose would be served by an analysis here of the judicial alchemy by which the dissenting opinions of 1962 were transmuted into the Judgment of 1966. As Judge Padilla Nervo (Mexico) pointed out in his dissenting opinion, the 1966 majority merely was "reproducing on the present occasion the arguments adduced in dissenting opinions against the Judgment of 1962." The 1966 Judgment, indeed, is essentially a paraphrase of the 1962 joint dissenting opinion of Sir Gerald Fitzmaurice (U.K.) and the President of the Court, Sir Percy Spender (Australia), who broke a deadlock by casting a second vote, as permitted by the Court's Statute. On the basis of the same reasons which they advanced in the 1962 Judgment and which were rejected, the majority in 1966 found that the right of the Applicants to an adjudication on the merits of the dispute was an "antecedent" question, which "appertained to the merits of the case," and held that although the Applicants had sufficient standing to "activate" the Court, they were not entitled to a judgment on the validity of their claim. Hence the Court did not even pass upon the issue whether the Mandate is in existence or whether South Africa has a right unilaterally to modify the terms of the Mandate.
The logical and legal qualities of the 1966 Judgment no doubt will be the subject of much scholarly appraisal. The adventitious changes in the Court's composition between 1962 and 1966 are matters of public record. It suffices for present purposes to stress elements of fairness and common sense. These suggest that judicial tribunals avoid "procedures of utter futility," place a high premium upon predictability, and normally assure that litigants are given due notice of questions which the Court, upon its own motion, may consider crucial to its decision. The mutual incompatibility of the 1962 and 1966 Judgments is manifest.
The basis upon which the Court deprived its earlier Judgment of meaningful legal quality or effect reflects a sharp contrast in perspectives between the Court of 1962 and that of 1966. In 1962, as in 1950, the Court gave full weight and dignity to the requirements of the Mandate. It stressed the necessity of United Nations supervision as the "normal security to ensure full performance of the 'sacred trust' toward the inhabitants of the Territory." The Court considered that, in the words of Judge Jessup in his 1962 concurring opinion, the clause providing for submission of disputes to the Court "was intended to recognize and to protect the general interests of Members of the international community in the Mandates system." The Court held that members have an interest of a legal nature in the conduct of the Mandatory toward the inhabitants, including its universally condemned policies of racial discrimination. The Court declared that its function under the scheme of the Mandate is "to serve as the final bulwark of protection . . . against possible abuse or breaches of the Mandate."
The 1966 Judgment, in contrast, dismantles the bulwark, leaving the Applicants a right of judicial recourse only to protect their so-called "special interests" in assuring access to the Territory of their non- existent missionaries. The disputants thus are remitted to the arbitrament of pressure and power. The "principal judicial organ of the United Nations" becomes irrelevant to a dispute the settlement of which has been frustrated by South Africa's refusal to comply with the Court's own earlier decisions.
It is fortunate that such an approach toward the "sacred trust" did not find expression in a binding judgment "on the merits," properly so called, and that, as the United States Government declared in a statement of July 28, 1966, the 1966 Judgment leaves unimpaired the finality of the Court's previous decisions, which ". . . remain basic and authoritative statements of the International Court of Justice on important substantive legal questions, including the existence and scope of South Africa's obligations and rights of inhabitant? of South West Africa."
V. SOME LESSONS TO BE LEARNED
One of the reasons assigned by Judges Spender and Fitzmaurice, in their 1962 joint dissenting opinion, for denying Ethiopia and Liberia a standing before the Court was that, in their words, "the real dispute over South West Africa is between the Respondent State and the United Nations Assembly." The Applicants, the two Judges said, were "in fact appearing in a representational capacity to bring proceedings which the Assembly cannot bring for itself because, under Article 34 of the Statute of the Court, only States can appear in contentious proceedings before the Court."
In an Advisory Opinion concerning the right of the United Nations to claim reparation for injuries suffered in the service of the U.N., the Court unanimously concluded "that the Organization is an international person" and, as such, "is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims." (I.C.J. Reports, 1949, p. 179.) It is therefore difficult to see any justification, in logic or in polky, for barring the judicial settlement of disputes in which the United Nations has an interest of a legal nature. If the organization has sufficient "personality," in a juridical sense, to be party to a dispute, it should not be denied the right of judicial recourse, designed to lead to an enforceable Judgment, as distinguished from an Advisory Opinion.
Serious consideration, accordingly, should be given to amending the Statute of the Court so as to enable the United Nations to appear as a party in appropriate cases before the Court. Where, as here, states are denied the right of judicial recourse, while at the same time the U.N. itself is precluded from seeking a binding adjudication of a dispute to which it is a party, a dangerous vacuum exists in the process of peaceful settlement.
A second lesson taught by the history of the South West Africa cases involves the delicate problem of the standards which should govern the selection of Judges of the Court. Widespread concern, and, indeed, dismay, occasioned by the procedures followed by the Court, as well as the outcome, impel attention to the proper role of the Court in the judicial settlement of major disputes among nations.
The concern, which by no means is confined to any one region, is epitomized in an editorial in the Johannesburg Star of July 23, 1966. After referring to the "six long years," the Judgment on jurisdiction and the unprecedented evidence on conditions in the Territory, this leading South African journal commented:
Turning its back firmly on the great questions that move the world of the second half of the 20th Century, such as racial discrimination and the responsibility of the United Nations for the welfare of non-self-governing peoples, the Court cast an eye on the plaintiffs as if seeing them for the first time and asked what right they had to be there at all None, it decided (though by the narrowest possible majority) and threw the case out without further ceremony.
Notwithstanding the disillusionment evident in such comments, the Court remains the principal judicial organ of the United Nations and an important potential factor in the peacekeeping process. In order for it to achieve its vital purposes, however, attention should be given not only to the indispensable statutory requirements of independence, character and qualification of the Judges, but also to an added dimension: an outlook which accepts the Court's relevance to the settlement of disputes in accordance with justice and the rule of law.
Finally, a lesson which should never have had to be learned is now driven home with climactic force. There is not, and cannot be, an effective substitute for the willingness of members of the international community to enforce, with vigor and conscience, the principles of their own Charter, the dictates of their own decrees and the plain terms of their own undertakings.
[i] The Court also held, five Judges dissenting, that the Charter did not require South Africa to place the Territory under the Trusteeship System, even though this was the "normal course," which the framers of the Charter had "expected." The Territory, indeed, is the anomalous exception.
[ii] Article 7 of the Mandate, in relevant part, provides: "The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations."
[iii] U.N. Document No. A/C.4/421, p. 33-35 (1959).
[iv] Article 94(2) provides: "If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, 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."