Legal Consequences for States of the Continued Presence of

South Africa in Namibia (South West Africa) notwithstanding

Submitted by

Sundram Joshi

Division- B, PRN- 18010224110, 2018-23

Of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

August, 2021

Under the guidance of

Mr. Sudhir Verma

Course-in-charge, Symbiosis Law School, NOIDA

The project entitled “Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970)” submitted to the Symbiosis Law School, NOIDA for Public
International Law as part of Internal assessment is based on my original work
carried out under the guidance of Mr. Sudhir Verma in August, 2021. The research
work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in this submission has
been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism,
if any, detected, later on.

Signature of the candidate:

Date: 27/08/21
FACTS

The Namibian conflict is best viewed as a dispute primarily between the United
Nations and South Africa over the legal propriety of South Africa's presence in
Namibia (South West Africa), and the terms under which South Africa will
relinquish.

Under a claim of right to annex the Namibian territory and under the claim that
Namibia’s nationals desired South Africa’s (D) rule, South Africa (D) began the
occupation of Namibia. South Africa was subject to a U.N. Mandate prohibiting
Member States from taking physical control of other territories because it was a
Member State of the United Nations.

The Resolution 2145 (XXI) terminating the Mandate of South Africa (D) was adopted
by the U.N and the Security Council adopted Resolution 276 (1970) which declared
the continuous presence of South Africa (D) in Namibia as illegal and called upon
other Member States to act accordingly. An advisory opinion was demanded from the
International Court of Justice.1

CONTENTION & ANALYSIS

In the 1950 Status of South West Africa case, the International Court of Justice (ICJ)
rejected South Africa's expiration argument. South Africa argued that since the
mandate or agency relationship requires at least two parties, one of whom must be
the principal, it is legally impossible for a mandate to continue to survive after the
demise of the principal. In rejecting this argument, the Court first pointed out that its
duty was not to apply the private law rules of mandatum but rather, to regard any
features or terminology which are reminiscent of the rules and institutions of private
law as an indication of policy and principles.

The Court, in essence, rejected the application of the private law rule that the
mandate expires upon the death of the mandator or principal. The Court found this
1
S. Slonim, South West Africa and the United Nations: An International Mandate In Dispute (1973).
argument inconsistent with the dispositive character of the mandate system, and
violative of the mandate system's objective to hold the mandated territories as a
sacred trust of civilization until they achieve self-government or independence. 2

A third analysis set forth by the Court was that the mandate conferred upon South
West Africa certain real rights giving it international status. This status supplied the
element of permanence which allowed the South West Africa Mandate to survive the
dissolution of the League. The International Court of Justice later confirmed its 1950
decision in the South West Africa Judgment of 1962 and the Namibia case in 1971.

When the Court declared that the South West Africa Mandate had survived the
dissolution of the League of Nations, it also affirmed South Africa's obligations under
the Mandate. In view of the survival of the Mandate, and South Africa's obligations
thereunder, the Court reasoned that international supervision of the Mandate was an
indispensable condition for effective performance of the sacred trust of civilization.
The Court then concluded that the General Assembly of the United Nations is legally
qualified to exercise the supervisory functions.

Nevertheless, South Africa maintained its position, and its non-cooperative stance
was followed by the General Assembly's adoption of Resolution which declared the
South West Africa Mandate exercised by the government of the Union of South
Africa is terminated. When South Africa denied the General Assembly's competence
to revoke its mandate over South West Africa the stage was set for the ICJ disposition
of the Namibia case in 1971.

The U.N. Security Council adopted Resolution which formally recognized the General
Assembly's revocation of the South West Africa Mandate. This resolution was
significant because it reinforced the legality of the General Assembly resolution
which revoked the mandate. When South Africa failed to comply with Resolution and
the subsequent resolution regarding South Africa's illegal presence in Namibia, the
Security Council requested an advisory opinion of the International Court of Justice
on the legal consequences of the continued presence of South Africa in Namibia. In
its advisory opinion, the Court held that South Africa's presence in Namibia was
illegal. South Africa was therefore under an international obligation to withdraw
immediately. The Court also held that all states were under an international
obligation to recognize the illegality of South Africa's presence in Namibia and to act
accordingly.

Accordingly, it rejected the Court's determination. South Africa's persistent refusal to

2
Crocker, The United States and Africa, AFRICA REP., Sept.-Oct. 1981,
resolutions of the Security Council left the United Nations with two alternatives:
Security Council implementation of Chapter VII Article 41 devices, or direct
negotiations with the government of South Africa. 3 The Security Council did not
invoke Chapter VII, Article 41, sanctions against South Africa and thus, the United
Nations began direct negotiations with South Africa.

CONCLUSION
The struggle between the United Nations and South Africa regarding Namibia's self-
determination and independence has continued for more than a quarter of a century.
Namibia is now able to stand by itself, and thus the time has arrive for the sacred
trust of civilization to terminate.

3
South West Africa cases (Ethiopa v. S.A.; Liberia v. S.A.), 1962 I.C.J. 319 (Preliminary Objections of
Dec. 21); Namibia (South West Africa) case, 1971 I.C.J. 16 (Advisory Opinion of June 21).