South West Africa Cases Ethiopia v SA Liberia v SA Preliminary Objections

1961, May 20; ICJ joined proceedings in the two cases The case related to the continued existence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory. South Africa raised preliminary objections to the ICJ jurisdiction 1. The mandate, including art 7 submission to the PCIJ, is no longer a treaty or convention in force within the meaning of art 37 (treaties under PCIJ/LN) of ICJ Art 7 mandate “the mandatory agrees … any dispute whatever should arise between the mandatory and another member of the LN relating to the interpretation or application of the provisions of the mandate, such dispute … shall be submitted to PCIJ” 2. Since all members of LN lost their membership when it ceased to exist, there is no ‘another member of the LN’ 3. The dispute brought before the court was not a dispute under art 7 Mandate. 4. If a dispute existed it was not one that could be settled by negotiation with the applicants and there had been no such negotiations with a view to its settlement Resolution: Existence of a dispute: it was not sufficient for one party to contentious case to assert that a dispute existed with the other party …Nor is it adequate to show that the interest of the two parties so such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other. A dispute existed in the present case since it was clearly constituted by the opposing attitudes of the parties relating the performance of the obligations of the Mandate by the respondent as Mandatory.

The essential principle of the Mandate system consisted in the recognition of certain rights of the peoples of the underdeveloped territories 1. AO 1950, the obligation of SA to submit to international supervision were crystal clear. LN ceased to exist April 1946, UN entered into force October 1945, the three parties to the proceedings ratified UN November 1945. By UN art 92 (SICJ part of UNCh) 93 (UN member = SICJ member) and 37 ICJ (treaties under PCIJ/LN) respondent bound itself by ratifying the UN while LN was still alive. Mandate was in full force to accept compulsory jurisdiction of PCIJ (ICJ) 2. Judicial protection of the sacred trust in each mandate was essential feature of the Mandate system. Neither the council nor the LN were entitled to appear before the court, so that was the reason other members could bring a dispute before ICJ [compare necessity argument merits] 3. the scope and purport of the provision ‘any dispute whatever’ indicated that the members of LN were understood to have a legal right or interest in the observance by the Mandatory of its obligations both (substantive) towards the inhabitants of the territory and (procedural) obligation to submit to supervision to the LN and its members 4. A deadlock had been reached in the collective negotiation in the past, no reasonable probability existed that further negotiations would lead to a settlement. What mattered was not the form of negotiation as the attitude of the parties. The court was competent to hear the dispute on the merits