                     70

                                        DECLARATION OF JUDGE BHANDARI

                        1. In the present case, I have voted with the majority in respect of the
                     first, second, third and fourth preliminary objections raised by Colom-
                     bia 1. However, with the greatest of respect to my learned colleagues, I
                     cannot join them in rejecting Colombia’s fifth preliminary objection 2,
                     which contends that the present case brought by Nicaragua is, in effect,
                     an improper attempt by Nicaragua to have this Court enforce one of its
                     prior judgments. Thus, for the reasons that I shall briefly outline here
                     under, I would declare Nicaragua’s present claim inadmissible and
                     thus would not allow this case to proceed to the merits phase of these
                     proceedings.
                        2. As the majority correctly and succinctly observes, “Colombia’s
                     fifth preliminary objection rests on the premise that the Court is being
                     asked to enforce its 2012 Judgment” 3. If true, Nicaragua’s claim would
                     run afoul of Article 94, paragraph 2, of the Charter of the United Nations,
                     which reads as follows :
                                “If any party to a case fails to perform the obligations incumbent
                              upon it under a judgment rendered by the [International] Court [of
                              Justice], 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.” (Emphasis
                              added.)
                       3. Moreover, Article L of the Pact of Bogotá (a treaty which, I will
                     recall, I have joined the majority in concluding grants jurisdiction in the
                     present case 4) provides as follows :
                                “If one of the High Contracting Parties should fail to carry out the
                              obligations imposed upon it by a decision of the International Court
                              of Justice . . . the other party or parties concerned shall, before resort‑
                              ing to the Security Council of the United Nations, propose a Meeting
                              of Consultation of Ministers of Foreign Affairs to agree upon appro-
                              priate measures to ensure the fulfilment of the judicial decision . . .”
                              (emphasis added).

                          1 Judgment, para. 111 (1) (a)–(e).
                          2 Ibid., para. 111 (1) (f).
                          3 Ibid., para. 109.
                          4 See my vote rejecting Colombia’s first preliminary objection at ibid., para. 111 (1) (a).

                     71

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                     71 	 sovereign rights and maritime spaces (decl. bhandari)

                       4. When these two authorities are read in concert it is clear that if
                     Nicaragua, as both a Member of the United Nations and a party to the
                     Pact of Bogotá, seeks to enforce the 2012 Judgment of this Court in the
                     Territorial and Maritime Dispute (Nicaragua v. Colombia) case (“2012
                     Judgment”), its ultimate avenue of recourse is the Security Council. This
                     obligation, posited by the plain wording of these two texts, is further rein-
                     forced by a supplementary a contrario interpretation, in that both the
                     United Nations Charter and the Pact of Bogotá are conspicuously silent
                     on the ability of an aggrieved former litigant to re-approach the ICJ to
                     seek enforcement of one of its prior judgments.

                       5. While the majority does not deny that Nicaragua has framed its case
                     as a request to enforce the 2012 Judgment, it recalls that ultimately “it is
                     for the Court, not Nicaragua, to decide the real character of the dispute
                     before it” 5. While this statement is true as a matter of law, I simply dis-
                     agree with the majority that, based on the facts as averred at this prelimi-
                     nary stage of the proceedings, the Court ought to arrive at the independent
                     conclusion that Nicaragua’s present claim is anything other than a rather
                     obvious attempt to circumvent the Security Council by asking the Court
                     to enforce its prior Judgment.

                       6. While an exhaustive analysis of Nicaragua’s written and oral plead-
                     ings would greatly exceed the scope of the present declaration, I draw
                     upon several points that illustrate why I respectfully cannot accept the
                     majority’s position that Nicaragua is not presently seeking to enforce the
                     2012 Judgment through its present claim.

                       7. First, in its Application, Nicaragua
                              “requests the Court to adjudge and declare that Colombia is in breach
                              of . . . its obligation not to violate Nicaragua’s maritime zones as delim‑
                              ited in paragraph 251 of the ICJ Judgment of 19 November 2012 as
                              well as Nicaragua’s sovereign rights and jurisdiction in these zones” 6.

                        8. Second, this plea is reiterated virtually verbatim in the prayer for
                     relief contained in Nicaragua’s Memorial 7.
                        9. Third, the pleadings reveal many instances of alleged conduct that,
                     if true, strongly suggest that Colombia failed to heed the boundaries
                     delimited by the 2012 Judgment, including but not limited to : the enact-
                     ment on 9 September 2013 of Decree 1946, which purported to create an
                     “Integral Contiguous Zone” asserting sovereign rights over maritime
                     areas the Court had explicitly determined to be Nicaraguan ; the encroach-

                          5 Judgment, para. 109.
                          6 Ibid., para. 11 ; emphasis added.
                          7 Ibid., para. 12.

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                     72 	 sovereign rights and maritime spaces (decl. bhandari)

                     ment of Colombian naval vessels into waters explicitly declared to be
                     under the sovereign jurisdiction of Nicaragua in the 2012 Judgment ; the
                     issuance of fishing licenses by the Colombian authorities for waters
                     adjudged to belong to Nicaragua by the 2012 Judgment ; and Colombia’s
                     contention that it was precluded from executing the 2012 Judgment by
                     virtue of a domestic law impediment necessitating that any changes to its
                     boundaries can only be effected by the conclusion of a treaty 8.

                       10. While not contesting these points, the rationale underpinning the
                     majority’s determination that Nicaragua is not asking the Court to
                     enforce the 2012 Judgment in the face of such a compelling body of evi-
                     dence to the contrary is to be found in the latter portion of paragraph 109,
                     which, for ease of reference, I reproduce hereunder :

                                “[A]s the Court has held (see paragraph 79 above), the dispute
                              before it in the present proceedings concerns the alleged violations by
                              Colombia of Nicaragua’s rights in the maritime zones which, accord-
                              ing to Nicaragua, the Court declared in its 2012 Judgment appertain
                              to Nicaragua. As between Nicaragua and Colombia, those rights are
                              derived from customary international law. The 2012 Judgment of the
                              Court is undoubtedly relevant to that dispute in that it determines the
                              maritime boundary between the Parties and, consequently, which of
                              the Parties possesses sovereign rights under customary international
                              law in the maritime areas with which the present case is concerned.
                              In the present case, however, Nicaragua asks the Court to adjudge
                              and declare that Colombia has breached ‘its obligation not to violate
                              Nicaragua’s maritime zones as delimited in paragraph 251 of the
                              Court[’s] Judgment of 19 November 2012 as well as Nicaragua’s sov-
                              ereign rights and jurisdiction in these zones’. . . Nicaragua [therefore]
                              does not seek to enforce the 2012 Judgment as such.”

                        11. I respectfully take issue with this conclusion and the analysis upon
                     which it rests. First, the cited paragraph 79 is a rather inapposite reference,
                     since that paragraph draws a conclusion on a separate point of law, which
                     is based upon a different set of factual considerations. It is to be recalled
                     that the analysis preceding paragraph 79 dealt with Colombia’s second
                     preliminary objection, i.e., whether there was in fact a “dispute” between
                     the Parties at the time the Application was filed, in accordance with the
                     requirement stipulated under Article 38 of the Statute of the Court.
                        12. As one might expect, the thrust of the analysis preceding para-
                     graph 79 of the Judgment does not focus on the character of Nicaragua’s
                     claim, but rather on the critical issue of whether there existed a bona fide
                          8   Judgment, paras. 54‑57.

                     73

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                     73 	 sovereign rights and maritime spaces (decl. bhandari)

                     dispute between the Parties at the time Nicaragua filed its Application. To
                     this end, the analysis was not focused on the source of Nicaragua’s legal
                     claim but rather the actions of the Parties prior to the filing of Nicaragua’s
                     Application, in order to determine whether such conduct could properly
                     be deemed a “dispute” for the purpose of Article 38 of the Statute of the
                     Court. After conducting such an examination, the majority determined —
                     correctly, in my view, as my vote on this issue evinces 9 — that there was
                     indeed a “dispute” between the Parties as contemplated by Article 38, and
                     thus the second preliminary objection of Colombia ought to be rejected.
                        13. Since the analysis leading up to the conclusion at paragraph 79 of
                     the Judgment on Colombia’s second preliminary objection dealt with a
                     separate and distinct legal issue and focused on the conduct of the Parties
                     in the interval between the issuance of the 2012 Judgment and the filing
                     of Nicaragua’s Memorial, the majority’s reliance on paragraph 79 to but-
                     tress its conclusion on the fifth preliminary objection is, to my mind, ten-
                     uous at best. Indeed, to the extent that portion of the Judgment touches
                     upon the legal source of the dispute — i.e., enforcement of Nicaragua’s
                     maritime rights under customary international law versus enforcement of
                     the 2012 Judgment per se — at all, this was done obliquely and often by
                     way of examples that are either inconsistent with, or at least unhelpful to,
                     the majority’s conclusion as to the true character of Nicaragua’s com-
                     plaint.

                        14. Second, in my respectful view, the majority’s analysis regarding
                     Colombia’s fifth preliminary objection simply ignores the clear, unequiv-
                     ocal, and repetitive assertions by both Parties — explicitly and implic-
                     itly — that the crux of the matter under consideration is, quite plainly,
                     Colombia’s alleged non‑compliance with the 2012 Judgment. Such asser-
                     tions are abundantly supported by the factual record available to this
                     Court at this preliminary stage of proceedings.

                       15. For these reasons, I would uphold Colombia’s fifth preliminary
                     objection and consequently refuse to allow Nicaragua’s claim to advance
                     to the merits phase of this case.

                                                                 (Signed) Dalveer Bhandari.

                          9   Judgment, para. 111 (1) (b).

                     74

6 CIJ1092.indb 144                                                                                15/02/17 08:34


SEPARATE OPINION OF JODGE DILLARD

In this opinion I shall make certain general observations in support
of operative clause 1 of the Opinion based on my reading of the facts
and my understanding of the jurisprudence of the Court. I shall also
make some observations concerning the thrust of operative clause 2 as
will appear near the end of this opinion. At the beginning I shall allude
briefly to a number of preliminary matters and my reason for disagreeing
with the majority of the Court on the issue of the appointment of a judge
ad hoc.

At the outset it may be well to stress that, in my view, the Opinion of
the Court (hereafter referred to as the Opinion) does not purport to do
the following:

(1) By invoking Articles 24 and 25 of the Charter it does not purport
to carry the implication that, in its view, the United Nations is endowed
with broad powers of a legislative or quasi-legislative character. The
Opinion is addressed to a very specific and unique situation concerning a
territory with an international status, the administration of which engaged
the supervisory authority of the United Nations.

(2) It does not purport to validate the “revocation” of the Mandate
on an analysis of the motives inspiring or the purposes and effects at-
tending the application of policies of apartheid in the Territory. Despite
the voluminous record accumulated over a period of 21 years this issue
has never been judicially determined and was not the object of adjudica-
tion in these proceedings as it might have been had the proceedings been
assimilated to a contentious case in accordance with South Africa’s
proposal. It would not have been compatible with its judicial function to
have determined the issue of breach on these grounds in the absence of
a full exposure of all relevant facts. The references in the Opinion
(paras. 129-131) to the “laws and decrees applied by South Africa in
Namibia, which are a matter of public record” was in response to South
Africa’s request to supply further factual evidence. The revocation was
rested on other grounds as the Opinion discloses (para. 104).

(3) By confining its scope to intergovernmental relations, operative
clause 2 does not concern itself with private dealings or the activities
directly performed by specialized agencies.

*
* *

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151 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

Read literally, Security Council resolution 284 does not appear to ask
the Court to call into question the validity of resolution 276 or General
Assembly resolution 2145 but only to indicate the “legal consequences”
flowing from them. The Court has not felt justified in attaching this
limited scope to its enquiry. My own assessment of the reasons follows:

A court can hardly be expected to pronounce upon legal consequences
unless the resolutions from which the legal consequences flow were them-
selves free of legal conclusions affecting the consequences. To say this,
in no sense implies that the Court is questioning the application of the
San Francisco formula with respect to the interpretation of the Charter.
Furthermore, the greatest deference must be given to resolutions adopted
by the organs of the United Nations. There is, of course, nothing in the
Charter which compels these organs to ask for an advisory opinion or
which gives this Court (as in many domestic arenas) a power of review
to be triggered by those who may feel their interests unlawfully invaded.

But when these organs do see fit to ask for an advisory opinion, they
must expect the Court to act in strict accordance with its judicial function.
This function precludes it from accepting, without any enquiry whatever,
a legal conclusion which itself conditions the nature and scope of the
legal consequences flowing from it. It would be otherwise if the resolu-
tions requesting an opinion wer. legally neutral as in the three previous
requests for advisory opinions bearing on the Mandate.

The conclusion reached above can be fortified by a number of other
considerations which, in the interests of brevity, I will merely mention
without discussion. First, it is compatible with the Court’s own juris-
prudence as revealed, especially in the Certain Expenses case (I.C.J.
Reports 1962, pp. 156, 157, 216, 217); second, the debates preceding the
adoption of Security Council resolution 284 disclose that the view that
the Court should not call into question the validity of the relevant
resolutions was held by only five States, while ten either expressed a con-
trary view or voiced constitutional doubts or refrained from expressing
any view on the matter; third, the representative of the Secretary-
General in the course of argument retreated from a dogmatic stance in
the matter (C.R. 71/18, p. 21); fourth, as a sheer practical matter, had
the Court refrained from such an enquiry and had a strongly reasoned
dissent cast grave doubt on the validity of the resolutions, then the
probative value of the Advisory Opinion would have been weakened
and, finally, it may not be presumptuous to suggest that as a political
matter it is not in the long-range interest of the United Nations to appear

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152 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

to be reluctant to have its resolutions stand the test of legal validity when
it calls upon a court to determine issues to which this validity is related +.

*
* *

By its Order of 29 January 1971 the Court denied the application of the
South African Government for the appointment of a judge ad hoc. Since
Judge Onyeama and I disagree with the decision of the Court I feel it is
incumbent upon me to state my reasons for doing so. In our joint dissent
we declared:

“While we do not think that under Article 83 of the Rules of
Court the Republic of South Africa has established the right to
designate a judge ad hoc, we are satisfied that the discretionary
power vested in the Court under Article 68 of its Statute permits it
to approve such designation and that it would have been appropriate
to have exercised this discretionary power in view of the special
interest of the Republic of South Africa in the question before the
Court.”

If the Court decides that there is a “legal question actually pending
between two or more States” within the meaning of Article 83 of its
Rules, read in conjunction with Article 82, then it has no choice but to
apply Article 31 of the Statute of the Court which gives the applicant
State a right to appoint a judge ad hoc. It assimilates the advisory pro-
ceedings into one comparable to a contentious case. The determination
that there is a legal question actually pending between two or more
States has a distinct bearing on whether there is a “dispute” within the
meaning of Article 32 of the Charter of the United Nations. Coming at
the very threshold of our enquiry I was unwilling to prejudge this issue.
At the same time it seemed clear that the interests of South Africa were
vitally affected.

Article 68 of the Statute empowers the Court in the exercise of its
advisory functions to be guided by the provisions of the Statute which
apply in contentious cases “‘to the extent to which it recognizes them to
be applicable”.

The latitude provided by this Article is not circumscribed by the way
questions are put to the Court. On the contrary the Court has itself
declared that it depends on the circumstances of each case and that the
Court possesses a large amount of discretion in the matter U.C.J. Reports
1950, p. 72 and L.C.J. Reports 1951, p. 19).

The Court thus has the power to appoint a judge ad hoc even if Article
83 of its Rules is not invoked. It seemed to me the exercise of the power

1 These reasons are, of course, completely subordinate to the principal one
touching the integrity of the judicial function.

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153 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

while not essential to the legitimacy of the composition of the Court
would have been appropriate {.

Since the interests of South Africa were so critically involved the ap-
pointment of a judge ad hoc would have assured the Court that those
interests would have been viewed through the perspective of one thor-
oughly familiar with them. Furthermore should the Opinion of the Court
have been unfavourable to the interests of South Africa, the presence on
the Court of a judge ad hoc, even in a dissenting capacity, would have
added rather than detracted from the probative value of the Opinion.

Whatever may be thought in general about the institution of a judge
ad hoc, as to which opinions vary, it seemed to me that one of its justifi-
cations, namely that it is important not only that justice be done but that
it appears to have been done, would have justified the use of the Court’s
discretionary power without attracting the theoretical and practical
difficulties invited by assimilating the proceeding to a larger extent into
one comparable to a contentious case.

*
* *

South Africa has challenged the formal validity of Security Council
resolutions on a number of grounds mentioned in the Opinion. It is only
necessary to support the Opinion with a few additional arguments.

At the outset, South Africa contended that the words “including the
concurring votes of the permanent members” in Article 27 (3) preclude
the taking of valid decisions if one or more of the permanent. members
voluntarily abstain from voting. Resolution 276 (1970) was adopted
despite the abstentions of France and the United Kingdom (S/PV. 1529
(1970), para. 184); and resolution 284 (1970) was adopted despite the
abstentions of Poland, the United Kingdom and USSR (S/PV. 1550
(1970), para. 160).

The contention is rested on an analysis of legislative history and on the
theory that the language of Article 27 (3) is so clear and unambiguous
that no interpretative process, whether by subsequent conduct or other-
wise, is permissible.

The contention reveals the weakness of an indiscriminate application
of the textual approach when coupled with the plain and ordinary
meaning canon of interpretation. Had the critical clause read: “‘all five
permanent members, who must be present and voting ...”, the contention
might have been justified. In the absence of such a precise prescription
the subsequent conduct of the parties is clearly a legitimate method of

1 A careful consideration of the Order of 31 October 1935 in the Danzig Legis-
lative Decrees case, P.C.I.J., Series A/B, No. 65, Annex 1, pp. 69-71, has not con-
vinced me that it was controlling in light of the wholly different question at issue in
that case and the different character of the Statute and Rules which were then
operative.

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154 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

giving meaning to the Article in accordance with the expectations of the
parties, including, in particular, the permanent members.

That their interpretation does not coincide with that of South Africa
is abundantly revealed by the undeviating practice of the Security Council.
The records and authorities marshalled by the representatives of the
Secretary-General and the United States in the present proceedings
(C.R. 71/1, pp. 36-41 and C.R. 71/19, pp. 8-11), are conclusive on this
point !.

*
* *

More fundamental and difficult than the previous issue is that con-
cerning the existence vel non of a “dispute” within the meaning of
Article 27 and Article 32. It is contended that under the former the
principle of compulsory abstention should have applied and under the
latter that South Africa should have been invited to participate in the
discussions relating to the alleged dispute. I confine myself to the latter.

No single, absolute meaning can be attached to the word or concept
of a “dispute”. It must be considered in context and with reference to the
purpose intended to be served by Article 32. That purpose, as indicated
by Security Council discussions, was to place the parties on the same
footing or a more nearly equal footing whether they were members of the
Council or even of the United Nations (see Goodrich, Hambro and Simons,
Charter of the United Nations, 3rd ed., at p. 254). If the dispute is con-
sidered to be between South Africa and the 114 member States voting
for General Assembly resolution 2145 (XXT) it is difficult to see how this
particular purpose could be accommodated in a practicably feasible
manner.

The contention of South Africa leans heavily on the 1962 Judgment
which, for purposes of establishing jurisdiction, did hold that there was
a “dispute” between South Africa and the applicant States. It must be
recalled, however, that this holding was in the context of Article 7 of the
Mandate which referred to ‘‘any dispute whatever” and to all the “provi-

1 The brief statement above is not intended to convey the impression that a
finding of ‘‘ambiguity” is a precondition for recourse to subsequent conduct as a
legitimate mode of enquiry into meaning. It has been observed that the word
“ambiguous” is itself not free from ambiguity. Much depends on the nature of the
subject-matter to be interpreted, i.e., constitutional document, multilateral treaty,
bilateral treaty, type of contract, etc. Much depends also on the character of the
applicable norms, i.e., whether a vaguely worded standard or a precise rule and
much depends on the expectations aroused in light of the entire context and the
social interests involved. “‘A word,” Justice Holmes has reminded us, “‘is not a
crystal, transparent and unchanged, it is the skin of a living thought and may vary
greatly in color and content according to the circumstances and the time in which
it is used.” Towne v. Eisner (1918) 245 U.S. at p. 425.

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155 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

sions’ of the Mandate. The language employed was said to be “broad,
clear and precise; it gives rise to no ambiguity and it permits of no excep-
tion” (C.J. Reports 1962, p. 343). Even so, the point was vigorously
opposed in the joint dissenting opinion of Judges Sir Percy Spender and
Sir Gerald Fitzmaurice (ibid., pp. 547-548).

Article 32 does not contemplate a ‘“‘dispute” which is predominantly
between the United Nations as an organized body and one of its com-
ponent Members but rather one in which the Security Council is acting
as a neutral forum for airing a controversy between two or more of its
members. The Article 32 image is rather that of a parent providing the
means for settling a controversy between two or more members of the
family than that of a parent embroiled in a controversy with one of
them. This seems to have been the notion of the dissenters in 1962.
Granted that quotations out of context are dangerous, their description
appears relevant to the present proceedings:

“{t is common knowledge that the present case finds its whole
fons et origo in, and springs directly from, the activities of the United
Nations Assembly relative to the mandated Territory and the Man-
datory. No one who studies the record of the proceedings in the
Assembly, and of the various Assembly Committees and Sub-
Committees which have been concerned with the matter, and especi-
ally the Assembly resolutions on South West Africa which directly
led up to the institution of the present proceedings before the Court,
can doubt for a moment that the real dispute over South West Africa
is between the Respondent State and the United Nations Assembly ...”
(loc. cit.) (Emphasis added.)

Of course it is not doubted that in a sense there is a dispute between
South Africa and the other States. This is revealed in the attitude of
numerous States with respect to South Africa’s accession to the ITU
Convention (C.R. (H.C.) 71/1, pp. 20-28). South Africa’s interests are
definitely affected and it is no doubt possible to so frame a definition of a
dispute as to have the present controversy fall under it. But, as previously
suggested, regard must be had to context and purpose. Thus Judge
Sir Gerald Fitzmaurice’s carefully framed definition in the Northern
Cameroons case in a context of ‘‘mootness” is quite different from that
associated with Article 32. (See Z.C.J. Reports 1963, p. 110.)

It is for the Council to make the preliminary determination that there
is a ‘‘dispute” rather than a “situation”. The argument that the terms of
Article 32 are mandatory seems insufficient to cover the problems in-
volved in this preliminary determination. At no time did the Security
Council or any member State proceed on the assumption that the
Namibian question was anything but a “situation”. Furthermore, South
Africa with full knowledge of the nature of the proposed discussions at

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156 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

no time sought to be included in the discussions. While this fact does not
precisely answer the ‘“‘mandatory” point, it clearly indicates that South
Africa did not deem itself substantially prejudiced by virtue of a failure
to be invited.

Finally, it may be recalled that most requests for an advisory opinion
are stimulated by some kind of controversy in which States are involved.

The conclusion follows that on this ground the Court’s jurisdiction is
not impaired.

*
* *

Article 65 of the Court’s Statute confers on it ample discretion to
refuse to render an advisory opinion. There is no logical inconsistency,
therefore, in holding that while there was no dispute within the intended
meaning and application of Article 32 there may yet be such elements of
controversy and complicated factual issues as to warrant the Court in
refusing on the ground of propriety from responding to the request for
an opinion. The jurisprudence of the Court, especially as revealed in the
Administrative Tribunal case U.C.J. Reports 1956, p. 86) and the Certain
Expenses case (1.C.J. Reports 1962, p. 155) suggests that this discretionary
power will not be exercised unless there are “compelling reasons” for
doing so. The reasons in this instance are not sufficiently compelling.

South Africa leans heavily on the Eastern Carelia case (1923, P.C.L.J.,
Series B, No. 5). It appears unnecessary to burden this statement with
an analysis, so much discussed by commentators, as to whether the
Peace Treaties case has weakened the persuasive authority of the Eastern
Carelia case and the doctrinal relationship of each to the Mosul case '.
It may be suggested that the simplest point of distinction between the
Eastern Carelia case aud the present case lies in the fact that to render the
opinion in the former would have constituted a disguised form. of compul-
sory jurisdiction over a non-member of the League of Nations quite apart
from the practical difficulties to be encountered in attempting to deal with
controverted facts in the absence of one of the parties. In the present case,
while South Africa registered objections, she was yet a vigorous advocate
and offered the Court optimum-co-operation.

1 For an analysis of the Status of Eastern Carelia case reference is directed to the
comprehensive statements of Mr. Cohen (USA) and the then Mr. Fitzmaurice (UK)
in arguments in the Peace Treaties case (I.C.J, Pleadings, pp. 272-276, 303-312),

144
157 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

*
* *

Turning to matters of substance, I shall attempt to put my support of
operative clause 1 into a broad perspective.

It is appreciated that attempts to recapture the legal meaning and
significance of expectations aroused by events and statements made in
the past invite peculiar difficulties of interpretation and construction. The
difficulties are compounded when obligations originally assumed are
disrupted by the happening of unexpected events—in this instance the
Second World War, the dissolution of the League and the birth of the
United Nations.

While sweeping generalizations are no substitute for close analytical
reasoning, I yet venture to say that whenever a long-term engagement, of
whatever nature, is so interrupted, emphasis in attempting a reasonable
interpretation and construction of its meaning and the obligations it
imposes shifts from a textual analysis to one which stresses the object
and purpose of the engagement in light of the total context in which the
engagement was located !. This generalization can be amply supported
by recourse to “the general principles of law recognized by civilized
nations” as revealed in the application of doctrines of impossibility and
frustration to long-term engagements.

The exact legal characterization of the mandate instrument defies easy
analysis as the jurisprudence of this Court abundantly discloses. At the
minimum, it bore a double aspect. On the one hand it “had the character of
a treaty or convention” (.C.J. Reports 1962, p. 330), and, as such, it
could attract the potentiality of termination for material breach as the
Opinion asserts and counsel for various States argued.

On the other hand it also had a status aspect, that is, it was “a special
type of instrument composite in nature and instituting a novel interna-
tional régime” (ibid., p. 331).

Clearly it is not cast in the image of a personal service type of enga-

1 My reading of the record inclines me to agree with the following statement by
Judge Lauterpacht in the Petitioners case, when in dealing with the 1950 Opinion,
he declared:

“On the face of it, the Opinion, inasmuch as it held that the United Nations
must be substituted for the League of Nations as the supervisory organ, signified
a change as compared with the letter of the Covenant. Actually, the Opinion
did no more than give effect to the main purpose of the legal instruments
before it. That is the true function of interpretation.” (1.C.J. Reports 1956, p. 56.)

This is to be read in light of the nature of the instruments involved and the total
context. See ibid., pp. 44, 48.

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158 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

gement in which the continued existence of one of the parties may be
essential to continued performance '.

Even if viewed through the restricted prism of a long-term engagement
in the national arena, such as a lease or trust (to which allusions were
made in the proceedings), the conclusion would not necessarily follow
that the happening of an unexpected event such as a war or a change in
institutional management would entail a collapse of the basic duties
embraced in the engagement. The issue wotild be whether the engage-
ment was terminated or could continue without imposing an undue
burden on the parties in light not merely of the terms of the engagement
but, more importantly, of its object and purpose. Viewed in large per-
spective the 1950 Advisory Opinion decided that no undue burden would
be imposed on South Africa by submitting to the supervisory authority
of the United Nations General Assembly.

This conclusion is reinforced by analogies (always to be indulged with
caution) drawn from generally recognized principles of law in national
domains governing “assignments” as opposed to principles analogous to
a novation which South Africa, in effect, considers to be operative.
Whenever there is a liquidation of an enterprise and an attempted transfer
of its rights and obligations to an assignee the cardinal issue does not
centre on the consent of the obligor (as in a novation) but in a determina-
tion of the impact of the transfer on the obligations of the obligor. The
1950 Advisory Opinion, to repeat, held, in effect, that this transfer would
impose no undue burden on South Africa. Cases are legion which support
the view that this is the proper focus of enquiry 2. At the jurisprudential
level this preserves the social interests in the integrity and durability of
long-term engagements while still protecting the interests of the obligor.

Indeed had the Mandate lapsed, as South Africa contended in 1950 and
continued to maintain, it is difficult to believe that a legal alternative
would have been the power to annex. As the Court stated in a much-
quoted passage in the 1950 Opinion, at page 133 and repeated with ap-
proval in the 1962 Judgment at page 333:

“The authority which the Union Government exercises over the

1 See, in particular, Judge Jessup’s analysis in his dissenting opinion in 1966
(C.J. Reports 1966, p. 353 et seq.). Although it did so only incidentally South
Africa projected the image of a personal service contract and its non-assignability
in its written statement, Vol. II, p. 155.

2 The leading cases in England are: The British Waggon Co., etc. v. Lea and Co.,
5 Q.B.D. 149 (1880) and Tollhurst v  ssociated Portland Cement Co. (1903) A.C.
(H.L.) 414. In each case the obligor claimed that the transfer terminated the contract.
In each case the contention was denied because no undue burden was imposed.
Similar results have been reached in the United States. See Meyer v. Washington
Times Co. 76 F (2d) 988 (1935). The point is that “consent” is not the central issue.

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159 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

Territory is based on the Mandate. If the Mandate lapsed, as the
Union Governinent 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.”

Yet in the present proceedings South Africa contended that: “... it is
the view of the South ‘African Government that no legal provision
prevents its annexing South West Africa” (C.R. 71/21, p. 59).

The Court in 1950 not only said that submitting to the United Nations
General Assembly imposed no greater burden on South Africa, it also
offered South Africa a milder alternative than the one she proposed and
one which was highly qualified in her favour.

I refer to the conclusion (despite six dissents including the logically
persuasive opinion of Judge De Visscher) that “the Charter does not
impose on the Union an obligation to place South-West Africa under the
Trusteeship System”. Furthermore, the Court stated that it could not
deduce from the various general considerations any legal obligation for
mandatory States to negotiate such agreements. U.C.J. Reports 1950,
p. 140.)

It had previously indicated that:

“The degree of supervision to be exercised by the General Assem-
bly should not... exceed that which applied under the Mandates
System, and should conform as far as possible to the procedure
followed in this respect by the Council of the League of Nations.”
(bid., p. 138.)

The dilemma this posed was perhaps insufficiently aired in the present
proceedings.

The dilemma is focussed on the negotiating process consequent upon
the dissolution of the League of Nations. Although South Africa was
under no duty to submit to the trusteeship system or to negotiaté a
specific trusteeship agreement, yet, as a Member of the United Nations,
she was surely under a duty to negotiate in good faith and even, reason-
ably, with the United Nations concerning a viable alternative either
within the trusteeship system or outside it. The source of this duty derived
from her combined obligations under the Covenant, the Mandate and the
United Nations Charter in light of the object and purpose of the Mandate
and the requirements of Article 2 (2) of the Charter !.

! Judge Klaestac in his separate opinion in the Voting Procedure case (I.CJ.
Reports 1955, p. 88) stated that as a Member of the United Nations South Africa
“is in duty bound to consider in good faith’’ a recommendation by the General
Assembly, but concluded that however serious it may be it does not involve a “‘true
legal obligation”. I cannot agree with this conclusion. The use of discretion and free-
dom to bargain which the system may confer does not imply the right to exercise
an attitude of uninhibited freedom of action which would be tantamount to operating

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tis apparent that no negotiating process can be successful if the parties
are at odds as to the fundamental basis on which the process rests. The
records reveal that the basis chosen by the General Assembly and its
various Committees was that it had been sufficiently endowed with
supervisory authority. It was fortified in this conclusion by the broad
doctrinal jurisprudence of this Court not only by virtue of the 1950 Opin-
ion but by the implications flowing from those in 1955 and 1956 and the
Judgment in 1962 '. In short, its negotiating posture was not only based
on a good faith assessment of its supervisory authority but a reasonable
one as well.

While the attitude of South Africa appeared to agree with the legiti-
macy of this assumption in the period 1946-1947, its attitude changed
thereafter.

Basing itself on the premise that advisory opinions of this Court are
not binding (which is true) and that the Judgment of 1962 was only ona
preliminary issue (which is also true), it appeared to take as a beginning
premise for negotiating that the General Assembly had no power of
supervision whatever. Quite obviously negotiations based on those
conflicting premises qualify, at best, as an empty time-consuming pageant
and at worst as a mere dialogue of the deaf.

outside the system. (See J.C.J. Reports 1955, p. 120.) Surely the implication of the
North Sea Continental Shelf cases was that the three Governments were under a
legal duty to negotiate in good faith along the lines indicated in the Judgment.
(.C.J. Reports 1969, p. 47.)

1 It is worth recalling that the 1962 Judgment represents the latest authoritative
doctrinal statement of the dual point that the obligation to submit to international
supervision survived the dissolution of the League and that ‘‘...to exclude the
obligations connected with the Mandate would be to exclude the very essence of
the Mandate”. (U.C.J. Reports 1962, pp. 333, 334.)

I associate myself entirely with the interpretation placed on the 1966 Judgment
by Judge Jessup when he said, in his carefully reasoned dissenting opinion fortified
by a comprehensive analysis of historical data, that:

“In the course of three Advisory Opinions rendered in 1950, 1955 and 1956,
and in its Judgment of 21 December 1962, the Court never deviated from its
conclusion that the Mandate survived the dissolution of the League of Nations
and that South West Africa is still a territory subject to the Mandate.” (I.C.J.
Reports 1966, p. 327.)

And later, in discussing the implication of the Judgment in 1966:

“Further, the Court has not decided ... that the Mandatory’s former obli-
gations to report, to account and to submit to supervision had lapsed upon
the dissolution of the League of Nations.” (Ibid., p. 331.)

Nor-can I see that to identify international supervision with supervision by the
United Nations involves a logical non sequitur in light of the expectations reasonably
aroused upon the dissolution of the League and the available alternatives. Logical
problems, including empiric assumptions latent in the choice of premises are beyond
the reach of this opinion.

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In my submission, South Africa, in light of her obligations under the
Covenant, Mandate and Charter (as analysed in the Opinion) was not
legally entitled to assume that negotiating posture any more than, to
repeat, she was legally entitled to claim that “...it is the view of the
South African Government that no legal provision prevents its annexing
South West Africa’ (C.R. 71/21, p. 59).

To assert that the advisory opinions of this Court are not technically
binding is one thing. To assert that they have no bearing on the legal
status of the Mandate and the General Assembly’s supervisory power is
quite another thing.

An analysis of the many abortive efforts to induce South Africa to
negotiate under the aegis of the United Nations, even including alter-
natives to submitting to the trusteeship system, are indicated briefly in
the Opinion and need no rehearsal in this statement. Suffice it to suggest
that, without impugning the good faith of South Africa, its reiterated
insistence on negotiating from a position that denied the reasonable basis
on which the General Assembly’s negotiating posture rested added weight
to the General Assembly’s determination that South Africa had, in fact,
disavowed the Mandate and especially so since supervision and report-
ing were admittedly essential features of the entire system.

Indeed the insistent and reiterated efforts of the United Nations to
negotiate with South Africa represented something more than the expres-
sion of General Assembly political action. It represented a sense of
continuity in the international community’s concept of South Africa’s
obligations and the responsibilities incumbent on the United Nations.
No doubt considerations of this kind led Lord Caradon (United King-
dom), in an address of special significance and in carefully measured
terms, to declare:

“For over fifteen years we have waited for the South African
Government to comply with its clear obligations. It has failed to do
so. It has denied this obligation as it has denied the existence of ail
other obligations incumbent upon it by virtue of the Mandate. It
has opposed the essential requirement of international responsibility.

What are we to do in the face of this refusal? Repeated attempts
by the General Assembly to persuade South Africa to adopt a policy
of co-operation have been unsuccessful. And not only has the South
African Government refused to submit to United Nations super-
vision but it continues to deny, despite the repeated pronounce-
ments of the International Court, that the Mandate is still in force.

What conclusions should we draw from this history of South
African intransigence? By word and by action the South African
Government has clearly demonstrated its undeviating determination to
deny and repudiate essential obligations, incumbent upon it under the

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Mandate. By repudiating those obligations, so clearly affirmed by the
International Court, it has in effect, forfeited its title to administer the
Mandate 1.”

The fact that this specific negotiating issue was not analysed in depth
is not, however, sufficient in my opinion to weaken the conclusion reached
in operative clause 1 since the facts are not basically controverted ?.

The reasons supporting the conclusion reached in operative clause 1
can, in my opinion, be fortified by data of an historical, legal and logical
character in addition to that supplied in the Opinion. The records tracing
the history of the mandates system are comprehensive and have been the
subject of elaborate analysis in the three previous Advisory Opinions and
the two Judgments rendered throughout the long history of the contro-
versy over South Africa’s administration of the Mandate. Much depends
on the way these records and events are viewed. My own reading leads
me to believe that the legal power to “‘revoke”’ the Mandate for a material
breach was inherent in the system; that the unanimity rule in the League
Council was not absolute; that no significance can be attached to the
rejection of the so-called Chinese proposal and that a restrictive inter-
pretation of Article 80 of the United Nations Charter is not justified.
These matters are covered in the Opinion and it would be tedious to
elaborate upon them 3.

1 United Nations General Assembly, 1448th Plenary Meeting, 19 October 1966,
Agenda Item 65, pp. 4, 5. It should be added that the statements above only support
the notion of breach. Lord Caradon questioned the wisdom and certain legal
aspects of the then proposed termination of the Mandate. It will be recalled that
General Assembly resolution 2145 (XXI) was carried by a vote of 114 to 2 with 3
abstentions. Botswana and Lesotho were absent. Portugal and South Africa dissented
and the United Kingdom, France and Malawi abstained.

2 There is something almost prophetic in the pronouncement made by Judge
Lauterpacht 11 years before General Assembly resolution 2145 (XXI) was adopted.
In a much-quoted passage in his separate opinion in the Voting Procedure case, he
suggested, in dealing with the discretionary power exercised under the trusteeship
system and assimilated territories:

“Thus an Administering State which consistently sets itself above the solemnly
and repeatedly expressed judgment of the Organisation, in particular in propor-
tion as that judgment approximates to unanimity, may find that it has overstepped
the imperceptible line between impropriety and illegality, between discretion
and arbitrariness, between the exercise of the legal right to disregard the
recommendation and the abuse of that right, and that it has exposed itself to
consequences legitimately following as a legal sanction.” (Z.C.J. Reports 1955,
p. 120.) ,

3 Evidence that the supervisory role of the Mandates Commission was intended
to be an “‘effective and genuine, not a purely theoretical or formal, supervision” is

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The conclusion that the General Assembly in resolution 2145 (XXI)
validly terminated the Mandate may be supported by two separate
approaches and since they are grounded on different processes of reason-
ing I shall briefly indicate the scope of each.

The first approach asserts that, conceding that the powers exercised by
the General Assembly are grosso modo of a recommendatory character
only, it is yet clear that in certain /imited areas it has decision-making
power. As stated in the Certain Expenses case:

“Thus while it is the Security Council which, exclusively, may
order coercive action, the functions and powers conferred by the
Charter on the General Assembly are not confined to discussion,
consideration, the initiation of studies, and the making of recommen-
dations; they are not merely hortatory.” U.C.J. Reports 1962, p. 163.)

The termination of the Mandate reposes in one of those limited areas.
It is an area that is sui generis. And the exercise of the power involved no
invasion of national sovereignty since it was focussed on a territory and a
régime with an international status. The power was conferred on the
General Assembly aliunde the Charter through the unique situation posed
by the Mandate coupled with authority granted under Article 80 of the
Charter, which constituted a bridge between the League of Nations and
the United Nations in so far as mandates were concerned.

Precedents exist for the exercise of such power as the decisions taken
under Annex XI of the Peace Treaty with Italy and General Assembly
action with respect to the Palestine Mandate attest, and other examples
could be cited.

revealed in the League of Nations publication, The Mandates System; Origin,
Principles, Application quoted in extenso in I.C.J. Pleadings, Admissibility of Hearings
of Petitioners, pp. 28-35.

Clearly no-one contemplated-in 1920 that a mandatory would commit a material
breach and it would have been unusual to have specifically provided for ‘‘revocation”
in light of that non-contemplated contingency. Indeed, this is true of most long-term
engagements. There is, however, support for the proposition that the right of revo-
cation was considered to be inherent, in the view of the Mandates Commission and
leading jurists U.C.J. Pleadings, International Status of South-West Africa, 1950,
p. 230). To the authorities in support of this proposition, marshalled by the-represen-
tative of the United States, which included the views of the authoritative Institute
of International Law and its rapporteur Professor Rolin (United States written
statement, Part II, Section V), may be added the high authority of Bonfils-Fauchille,
Traité de droit international public, Y (1925), which, after a thorough examination,
states at p. 887: .

‘“... un mandat international est susceptible d’être révoqué lorsque le manda-
taire se rend coupable d’un manquement grave à ses obligations, et c’est le
Conseil qui... prendra à cet égard une décision’’,

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Nor is this conclusion necessarily incompatible with the implications
of the Voting Procedure case (I.C.J. Reports 1955, p. 67). That Opinion
was concerned with voting procedures to be employed in the assumed
normal course of supervision. The Court stated that “the General
Assembly, in adopting a method of reaching decisions in respect of the
annual reports and petitions concerning South-West Africa should base
itself exclusively on the Charter” (ibid., p. 76). The Court was not
concerned in 1955 with the ultimate issue of material breach which lies
outside the normal course of performance and which, by definition, is a
denial of the permitted exercise of discretionary power by the mandatory
State.

In voting that South Africa had in fact disavowed the Mandate the
General Assembly was, to repeat, exercising power inherited from the
Council and it did so strictly within its own Charter-authorized rules of
procedure. And, as indicated above, it was not limited to its recommenda-
tory power under Article 10 since it was concerned with a matter of
material breach lying outside the normal scope of performance.

Under this approach the special powers granted under the Mandate
are stressed rather than the general powers under the Charter, including
especially the powers of the Security Council under Articles 24 and 25.

*
* *

The alternative approach accents the obligations undertaken under the
Charter. While asserting that General Assembly resolution 2145 (XXI)
was “binding” in the sense in which it registered the collective will of all
who voted for the resolution in terminating the Mandate, it yet insists
that the powers of the General Assembly vis-a-vis non-consenting States
fall in the category of recommendations. Acting under its supervisory
authority and in accordance with its voting procedures it could end the
Mandate but it could not generate an obligation on South Africa to
withdraw or engage the responsibility of member States to co-operate in
effecting a withdrawal.

It is for this reason that it called upon the Security Council. While
Security Council resolution 276 (1970), as with its antecedent resolutions
264 (1969) and 269 (1969), endorsed General Assembly resolution 2145
(XXI), it did not “validate” it since it was already valid. It served to
convert a recommendation into a binding decision operative as against
non-consenting States.

The reasoning of the Court is mainly based on the theory sketched
above. I favoured the former approach but under either approach the
Mandate was validly terminated so as to justify the conclusion reached in

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operative clause 1. In light of the object, purpose and history of the
mandates system and the unique problems it posed, the conclusion is,
in my opinion, well founded.

*
* *

Turning to operative clause 2, I shall confine myself to a few comments
mainly of a cautionary nature.

Operative clause 2 of the Opinion is based on the pronouncements of
the General Assembly and the Security Council, reinforced by the pro-
visions of Article 25 of the Charter. In part, it is also a reflection of
general principles of international law arising from the obligations of
States to refuse official recognition to a government illegally in control of
a territory.

General Assembly resolution 2145 (XXI), coupled with subsequent
Security Council resolutions, culminating in Security Council resolution
276 (1970), together with the Opinion of this Court, have settled the
issue of “‘legality’’.

The “legal consequences” flowing from that determination must not be
confused with specific enforcement measures under Article 41 of the
Charter. Not only did the Security Council fail to invoke the provisions
of Chapter VII of the Charter, it studiously avoided doing so.

It is well known that the exact nature and scope of the obligations
incurred by Members of the United Nations under Article 25 of the
Charter have never been determined by the Security Council (Repertory
of United Nations Practice, 1955, pp. 37-51; 1958, pp. 257-265; 1964,
pp. 295-304).

Paragraph 113 of the Opinion announces that, in the view of the Court,
Article 25 is not confined to “decisions in regard to enforcement action”
but applies to ‘“‘the decisions of the Security Council” adopted in accor-
dance with the Charter. Paragraph 114 sounds the cautionary note that
the question of the exercise of power under Article 25 must be determined
in any particular instance by the “terms of the resolution to be interpreted,
the discussions leading to it, the Charter provisions invoked and, in
general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council”.

It is to be observed that Security Council resoiution 276 (1970) is not
action oriented. It speaks principally of a negative duty of restraint, not a
positive duty of action. Thus operative paragraph 5 calls upon all States
“to refrain from any dealings with the Government of South Africa which
are inconsistent with operative paragraph 2” (emphasis added). This

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paragraph declares that “the continued presence of the South African
authorities in Namibia is illegal”.

The Opinion of the Court in operative clause 2, as suggested earlier,
appears to be grounded at least in large part on principles of non-
recognition under international law, and is thus in harmony with Security
Council resolution 276. But a strong caveat is needed to avoid any mis-
understanding.

I refer to the fact that the references in operative clause 2 to ‘‘any acts”
and “‘any dealings” are to be read subject to the critically significant
qualifying phrase “implying recognition of the legality” of South Africa’s
presence in Namibia (emphasis added). This announces, to repeat, the
doctrine of non-recognition.

It is important to understand that this doctrine is not so rigid as to
preclude ail intergovernmental dealings under all circumstances. Even as
applied to non-recognized governments and States, in which the admi-
nistrative control of the government over the territory is conceded, the
doctrine permits of flexibility in application at such governmental levels
as do not imply recognition of legitimacy.

Under particular circumstances a limited measure of intercourse is
essential as customary international law, derived from the practice of
States, abundantly reveals. (Hackworth, Digest of International Law,
Vol. I, pp. 327-364 (1940); Whiteman, Digest of International Law, Vol. 2,
pp. 524-604 (1963); Oppenheim, International Law, pp. 146-148 (8th ed.,
1955).) As Lauterpacht has stated: ;

... in normal circumstances there is nothing in the attitude of non-
recognition which necessarily constitutes an obstacle in the way of a
measure of intercourse so long as the State against which it is directed
does not insist on full and formal recognition of the results of the
illegal act” (Recognition in International Law (1947), p. 432 (emphasis
added)).

If this limitation applies in the context of non-recognized governments
and States, it surely applies even more to a complex situation in which
a government such as South Africa is required to withdraw from a terri-
tory over which it has long exercised administrative control. Considera-
tions of a practical and humanitarian nature are clearly involved in light
of the economic interdependence of the two areas and their interlocking
administrative structures.

Examples can be easily suggested to support this view. Thus if a famine
or a cholera epidemic were to break out in Namibia prior to the effective
exercise of control by the United Nations a measure of intergovernmental
co-operation between South Africa and other States might well be

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required. Likewise if an official plane were grounded (as happened in
Albania when it was not recognized by the United States) direct dealings
would be needed between the government officials of both States. No
implication of recognition flows from such dealing (Whiteman, Digest of
International Law, p. 530 (1963)). It is needless to add examples which
cover a wide spectrum of relations. A similar note of caution needs to be
sounded with respect to tHe first part of operative clause 2.

It will be observed that the statement that States Members of the United
Nations are under obligation to recognize the illegality of South Africa’s
presence in Namibia and ‘the invalidity of its acts on behalf of or
concerning Namibia” is a less comprehensive formulation than the specific
language of Security Council resolution 276 (1970) which speaks of all
acts.

This is consistent with the reasoning of the Court in paragraphs 122 and
125.

But in my opinion the matter does not stop there. The legal conse-
quences flowing from a determination of the illegal occupation of Namibia
do not necessarily entail the automatic application of a doctrine of nullity.

As Lauterpacht has indicated the maxim ex injuria jus non oritur is
not so severe as to deny that any source of right whatever can accrue to
third persons acting in good faith }. Were it otherwise the general interest
in the security of transactions would be too greatly invaded and the cause
of minimizing needless hardship and friction would be hindered rather
than helped.

This was in fact conceded by the representative of the Secretary-General
when, in answer to a question put by a judge, he declared that the
Secretary-General “‘had not considered that he was enunciating a doctrine
of ‘absolute nullity’ *” (C.R. 71/18, p. 20).

A detailed specification of the particular acts which may or may not be
compatible with South Africa’s illegal presence in Namibia cannot be
determined in advance since they depend on numerous factors including
not only the interests of contracting parties who acted in good faith but
the immediate and future welfare of the inhabitants of Namibia.

*
* *

I shall conclude on another note. It is true, of course, that prior to the
termination of the Mandate by the General Assembly there had never
been a judicial determination that this was legally permissible. Further-

! Lauterpacht, Recognition in International Law (1947), p. 420.
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168 NAMIBIA (S.W. AFRICA) (SEP. OP. DILLARD)

more, it is accurate to say the General Assembly in the exercise of its
supervisory powers did not calmly and rationally analyse the extent of
those powers under the grant of authority accorded by the San Francisco
formula (a point made by Professor Katz in his characteristically thought-
ful book on the Relevance of International Adjudication (1968), pp. 69-123).
The point is troublesome but it is not conclusive.

Law and what is legally permitted may be determined by what a court
decides, but they are not only what a court decides. Law “‘goes on” every
day without adjudication of any kind. In answer to a question put by a
judge in the oral proceedings (C.R. 71/19, p. 23), Counsel for the United
States, in a written reply received in the Registry on 18 March 1971,
declared:

“The fact that in the international as opposed to a municipal legal
system the other party cannot be assured of bringing a case involving
material breach before an international tribunal except where both
parties have accepted the compulsory jurisdiction of an international
tribunal is a problem relating to the efficacy of international law and
institutions generally and not especially to the problem of the material
breach doctrine.”

It is part of the weakness of the international legal order that compul-
sory jurisdiction to decide legal issues is not part of the system. To say this
is not to say that decisions taken by States in conformity with their good
faith understanding of what international law either requires or permits
are outside a legal frame of reference even if another State objects and
despite the absence of adjudication.

General Assembly resolution 2145 (XX1) was a political decision with
far reaching practical implications. But it was not an arbitrary exercise of
political power outside a legal frame of reference. Its endowment of
supervisory power over the Mandate had been confirmed by the juris-
prudence of this Court and the scope of that power, as indicated in the
Opinion, included the power ultimately to terminate for material breach.

The legal issues involved in this proceeding were not simple or easily
resolved. Indeed they were resolved only after hearings and deliberations
extending over a period of many months. It should be added that the
great learning and consummate skill brought to bear on the issues by the
representatives of South Africa were in the highest tradition of the legai
profession.

It may be hoped and expected that South Africa, as a great nation, will
respect the judicial pronouncement of this Court and the almost un-
animously held view in the United Nations that its administration of

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Namibia must come to an end. It may be hoped, also, that in the delicate
and difficult era that lies ahead, especially in the period of transition, a
spirit of mutual good will may, in time, displace one based on mutual

misunderstanding.

(Signed) Hardy C. DILLARD.

157