Read Palestine

Namibia Advisory Opinion

Properties2
tags
aliasesLegal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)

3 min read

Summary

The International Court of Justice Advisory Opinion of 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), as Judge Owada presents it in his Wall separate opinion: the analogy the Wall Court drew with it is in his view too facile, because any dispute there was precisely between the United Nations and the State concerned, unlike the underlying bilateral dispute in the Wall case (Separate opinion of Judge Owada, Wall Advisory Opinion, PDF p.4-5).

Details

  • The point in issue forming the basis for the request was the legal consequences of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970); the Court was asked to give an opinion on the legal significance of the action taken by the United Nations in terminating the South African Mandate over South West Africa and its legal impact upon the status of South Africa in that territory (PDF p.5).

  • If there was a legal controversy or a dispute in that case, it was precisely the one between the United Nations and the State concerned; by contrast, the Wall situation centres on a situation created by the action of Israel vis-à-vis Palestine, with an underlying dispute between the parties directly involved existing alongside the matter between the United Nations and Israel (PDF p.5).

  • South Africa made an application for the appointment of a judge ad hoc in the proceedings in accordance with Rules Article 102; the Court, in its Order of 29 January 1971, decided to reject this application (I.C.J. Reports 1971, p. 12), a decision met with well-argued dissenting views (ibid., p. 308; p. 324) (PDF p.7).

  • Owada’s use of the case: despite the similarity in language in the formulation of the request, its basis was very different from the Wall request, and applying principles drawn from past precedents, especially this one, automatically to the present situation is not quite warranted (PDF p.4-5).

  • Israel’s written statement of January 2004 distinguishes this case twice over: on the legal-question objection, because Security Council resolution 276 (1970) had already made a binding determination that South Africa’s continued presence was illegal, supplying the starting point the Wall question lacks; and on the consent objection, because the Court there found no legal dispute actually pending between States and South Africa had appeared before the Court on the merits (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.98, p.106).

Separate opinion of Judge Owada, Wall Advisory Opinion, Hisashi Owada, International Court of Justice, Status of Eastern Carelia, Western Sahara Advisory Opinion

Graph View

Backlinks