1971

ICJ

Legal consequences for States of the continued presence of SA in Namibia SWA n/w SC res 276 (1970)

In 1966 GA Res 2145 decided that the mandate was terminated and that SA had no other right to administer the territory {are the GA resolutions binding?} SC adopted various resolutions including 276 (1970) declaring the continued presence of SA in Namibia Illegal. The Security Council asked: What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970) SA contended that SC resolution was invalid because two permanent members abstained UN 27, SA should have been invited to the discussion UN 32, creating a judicial review situation for the court Resolution Objections challenging the 276 SC res, have been raised. The court declares that it does not posses judicial review in relation to UN organs in questions. However, since it is concerned with the competence of the court, the court will proceed to examine it. A resolution of a properly constituted organ of the UN which is passed in accordance with the organ’s rules of procedure and is declared by its president to have been passed, must be presumed to have been validly adopted. (22) The court pointed out that ‘proceeding of the SC have consistently and uniformly interpreted the practice of abstention by a permanent member as not constituting a bar to the adoption of resolutions’; (25) On the other hand, the question of Namibia was put on the Agenda of the SC as a ‘situation’ not as a ‘dispute’ therefore SA had not to be invited.

Mandate systems based upon two principles: non-annexation & sacred trust of civilization. Taking into account the past half-century the objective of the latter is self-determination & independence of the people concerned. In this domain, as elsewhere the ‘corpus iuris gentium’ has been considerably enriched. Rights of mandatory had their base on those obligations The UN treaty established a relation between all Members and every mandatory power, the party which disowns or does not fulfil its obligations cannot be recognized as retaining the rights which it claims to derive from the relation. Resolution 2145 determines the existence of a breach of the Mandate which SA had disavowed. According to a general principle of IL, incorporated in VCLT, the right to terminate a treaty on account of breach must be presumed to exist in respect of all treaties, and the consent of the wrongdoer to such form of termination cannot be required. (94) VCLT concerning termination of treaty on account of breach may be considered as a codification of CIL, in the light of these rules only a material breach (repudiation or violation of provision essential to accomplishment of object or purpose) justifies termination The UN as successor of the League can pronounce on the conduct of the Mandatory, SA failed to submit supervision. GA in principle has recommendatory powers but in the framework of its competence can make determinations. It would not be correct to assume that, because the General Assembly is in principle vested with recommendatory power, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design An illegal situation cannot remain without consequence. SA being responsible has the obligation to put an end. Member states of UN are obliged to recognize the illegality and invalidity of the act and refrain from lending support and assistance and to abstain from entering into treaty relations with SA in cases on which it acted on behalf of Namibia (126) As to States not members of the UN, although they are not bound by art 24 & 95 they have been called upon res 276 to give assistance in the action that has undertaken the UN with regard Namibia. The termination of the Mandate and the declaration of the illegality of SA presence are opposable to all states in the sense of barring erga omnes the legality of the situations which is maintained in violation or IL. In particular no State which enters into relations with SA concerning Namibia may expect the UN or its members to recognise the validity or effects of such relation. Namibia is a people which must look to the International community for assistance in its progress towards the goals for which sacred trust was instituted.