SEPARATE OPINION OF JUDGE PETREN
[Translation ]

I agree with the majority of the Court in considering that the revocation
by the United Nations of the Mandate conferred upon South Africa in
respect of South West Africa, now Namibia, constitutes an established
fact which it is the duty of States, and in the first place of South Africa,
to recognize. However, the grounds upon which I have reached this
conclusion, enabling me to vote in favour of sub-paragraph 1 of the
operative clause of the Opinion, do not wholly coincide with those of the
majority. Furthermore, to my regret, I can only concur in part of what is
contained in sub-paragraphs 2 and 3 of the operative clause; since a
separate vote could not be taken in this respect, I was obliged to vote
against those two sub-paragraphs. For these reasons, I must attach to
the Advisory Opinion a statement of the grounds on which I differ.

a

With regard, in the first place, to the propriety of the Court’s giving the
advisory opinion requested by the Security Council, I believe that there
is one particular aspect of the question with which I should briefly deal.

Whereas resolution 2145 (X XI), whereby tne General Assembly of the
United Nations declared the termination of South Africa’s Mandate for
Namibia, was founded upon reasons of a legal nature and the Security
Council endorsed it in declaring by resolution 276 (1970) that South
Africa’s presence in Namibia was illegal, it clearly emerges from the
context in which the request for advisory opinion was decided that its
purpose was above all to obtain from the Court a reply such that States
would find themselves under obligation to bring to bear on South Africa
pressure of an essentially economic character designed to secure its
withdrawal from Namibia. The natural distribution of roles as between
the principal judicial organ and the political organs of the United Nations
was thereby reversed. Instead of asking the Court its opinion on a legal
question in order to deduce the political consequences flowing from it, the
Security Council did the opposite. Considering as I do that, in accordance
with the Charter of the United Nations, any legal obligation upon
member States to apply coercive pressure on a State at fault can be
created solely by a Security Council resolution to that effect, I fear that
the Court’s task in the present proceedings should be confined to a
renvoi to the decisions taken by the Security Council. In other words, the
request for advisory opinion lies outside the normal framework of the

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Court’s advisory function, which consists in offering directives for action
to the organ requesting an advisory opinion. The Court would therefore
have had a valid reason‘for declining to accede to the request. Never-
theless, in view of the particular circumstances in which the question of
Namibia has evolved and the confused situation which has resulted, I am
of the opinion that the Court ought to respond to this request, however
abnormal it may appear.

There is however reason to consider whether the decisions taken by the
Court with regard to its composition in the present proceedings are not
such as to hamper it in its reply. According to Article 68 of the Statute,
the Court should, in the exercise of its advisory functions, 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 Secretary-
General of the United Nations and other participants in the proceedings
have contended that South: Africa had violated its obligations as the
mandatory Power and that the resolutions of the General Assembly and
of the Security Council concerning the revocation of the Mandate were
valid, whereas South Africa has expounded opposite contentions. lf ever
there was reason for applying to advisory proceedings the provisions
governing contentious proceedings, it seems difficult not to recognize that
such is the case in the present proceedings. However, the majority of the
Court, byan Order of 29 January 1971, rejected South Africa’s request
for the appointment of a judge ad hoc, only five Judges having declared
themselves in favour of granting that request.

In the Advisory Opinion, the Court now states as the grounds for the
Order of 29 January that the Rules of Court would not have permitted it
to exercise any discretionary power with regard to South Africa’s
application. But Article 68 of the Statute, the clear purpose of which is to
protect the interests of States which may be affected by advisory pro-
ceedings, lays a duty upon the Court to consider in each individual case to
what extent the provisions of the Statute concerning contentious proce-
dure should be applied, including those which contemplate judges ad hoc.
Thus when Article 83 of the Rules of Court provides that if an advisory
opinion is requested upon a legal question actually pending between two
or more States, Article 31 of the Statute (which deals with the appointment
of judges ad hoc) shall apply, it is not possible to interpret this provision
of the Rules as forbidding the Court to permit a State to appoint a judge
ad hoc in other cases in which this would be justified by the circumstances.
On the contrary, Article 83 of the Rules must be regarded as a positive
rule for the application of Article 68 of the Statute, to the effect that
Article 31 of the Statute must always be regarded as applicable when an
advisory opinion is requested upon a legal question actually pending
between two or more States. In such a situation, the Rules recognize the
right of a State taking part in advisory proceedings to appoint a judge
ad hoc if the Court does not include upon the Bench a judge of that
State’s nationality. Certainly Article 68 of the Statute was not an absolute

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NAMIBIA (S.W. AFRICA) (SEP. OP. PETREN) 129

bar to the Court’s refusing South Africa the right to choose a judge
ad hoc, but it would, in my view, have been more in harmony with the
spirit of that provision to have admitted South Africa’s application.

Taking account of what has just been said, it remains to be considered
whether South Africa did not have a right, by virtue of Article 83 of the
Rules of Court, to appoint a judge ad hoc, inasmuch as the Advisory
Opinion was requested upon a legal question pending between South
Africa and one or more other States. By rejecting at the outset of the oral
proceedings South Africa’s request for the appointment of a judge ad hoc,
the Court implicitly decided in the negative the issue as to whether the
advisory opinion was requested upon such a question. But on 29 January
1971 the scope of the Advisory Opinion was not yet known. Several
participants in the written proceedings, and in particular the Secretary-
General of the United Nations, had contended that it is not for the Court
to pronounce upon the validity of the General Assembly and Security
Council resolutions concerning the revocation of the Mandate. At the
outset of the oral proceedings, at the time when the Court rejected South
Africa’s request for a judge ad hoc, it was not yet known whether the
Court would or would not be examining the validity of those resolutions.
If the Court had decided not to proceed to such an examination, it could
perhaps have been said that the Court’s opinion related solely to the
effects of the situation created by South Africa’s continued presence in
Namibia and that the illegal nature of that situation could not be ques-
tioned by the Court after the resolutions of the General Assembly and
the Security Council. However, the Court has considered it necessary in
its Opinion to decide the question of the validity of the resolutions and,
in so doing, it has also felt it its duty to pronounce upon the question
whether South Africa had violated its obligations as mandatory Power.

The applicability of Article 83 of the Rules therefore depends on
whether there exist between South Africa and other States pending
questions relating to the legal situation in regard to the matters thus
dealt with in the Opinion. On this point it became clear, not only in the
course of discussions in the United Nations but also in exchanges of notes
ditect between governments, that there do exist between South Africa and
other States pending questions concerning the right of South Africa to
represent Namibia at the international level, for instance in regard to
accession to international instruments. These pending legal questions are
intimately connected with the question of the effect of the resolutions of
the General Assembly and Security Council on the revocation of the
Mandate. Consequently, I find that, in giving the present Advisory
Opinion, the Court has decided questions for the examination of which
South Africa had the right, by virtue of Article 83 of the Rules of Court,
to claim the presence upon the Bench of a judge of its nationality. By
depriving South Africa of this procedural safeguard, the Court in my
view has failed to observe its Rules of Court.

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NAMIBIA (S.W. AFRICA) (SEP. OP. PETREN) 130

There are of course divergent opinions as to the value of the institution
of judges ad hoc, but so long as it remains in the Court’s Statute it will
represent a safeguard of a procedural kind which is offered to a State
which is a party in a contentious case when there is no judge of its
nationality among the regular Members of the Court. Advisory proceed-
ings are also part of the Court’s judicial function, and Article 68 of the
Statute lays down the principle that they should as far as possible be
assimilated to contentious proceedings.

The departure from the principle laid down in Article 68 of the Statute
which the Court evinced in rejecting South Africa’s request for a judge
ad hoc is accentuated by another majority decision of the Court. I refer
to its retention on the Bench of a Member who, as a delegate to the
United Nations, played, according to official records communicated to
the Court, a spectacular role in the preparation of one of the Security
Council resolutions which endorsed and took as their point of departure
General Assembly resolution 2145 (XXT) the validity of which has had to
be assessed by the Court in the present Advisory Opinion. The old saying
that not only must justice be done but that it must be seen to be done
would to my mind have required a stricter application of Article 17,
paragraph 2, of the Statute, prohibiting Members of the Court from
participating in the decision of any case in which they have previously
taken part in any capacity whatsoever. I do not think that it is the case
that the previous activities of a judge as representative of his country at
the United Nations cannot in any circumstances attract Article 17,
paragraph 2, of the Statute. Thus I consider that if a person has formulated
or defended the text of resolutions upon the validity of which the Court
has to decide, he may not take part in the case as a judge, whether the
matter be contentious or advisory.

The two decisions concerning the composition of the Court to which
I have just referred deserve attention because of their importance in the
safeguarding of the judicial character of advisory proceedings. The fact
remains that the majority considered that the Court ought to give its
Advisory Opinion in its present composition, so that the situation is
analogous to that in a contentious case in which a preliminary objection
has been dismissed and the judges who declared themselves in favour of
upholding that objection must take part in the proceedings on the merits.

I shall now turn therefore to the central parts of the Advisory Opinion
and will first discuss the scope of the opinion requested of the Court.

In this connection, it should be observed that Security Council reso-
lution 276 (1970) took as point of departure resolution 2145 (XXT), by
which the General Assembly decided, inter alia, that the Mandate
entrusted to South Africa was terminated. Since Security Council

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resolution 276 (1970) is based upon General Assembly resolution 2145
{XXI}, and upon a series of subsequent resolutions of the General
Assembly and Security Council, there can be no question of the Court
being able to pronounce on the legal consequences of Security Council
resolution 276 (1970) without first examining the validity of the reso-
lutions upon which that resolution is itself based, the more so in that the
validity of those resolutions has been challenged by South Africa and
called in question by other States. So long as the validity of the resolutions
upon which resolution 276 (1970) is based has not been established, it is
clearly impossible for the Court to pronounce on the legal consequences
of resolution 276 (1970), for there can be no such legal consequences if the
basic resolutions are illegal, and to give a finding as though there were
such would be incompatible with the role of a court. It seems to me that
the majority should have expressed itself on this point more precisely and
firmly, but I note that it likewise considered that the opinion must include
an examination of the validity of the resolutions in question.

I am in agreement with the majority in considering that the mandate
institution included the power of the League of Nations to revoke a
mandate in case of a serious breach of the mandatory Power’s obligations,
although that possibility is not mentioned in the texts which set up the
mandates system. The same is true of many everyday private law contracts
which make no reference to the right of one party to repudiate the
contract if the other party has committed a serious breach of his obli-
gations. Since the procedure by which the power of revocation could be
exercised had not beer specified, it had to be determined, should the
matter arise, by the organ of the League of Nations which was to be
regarded as competent in this respect.

Again in agreement with the majority, I find also that the Mandate for
South West Africa survived the dissolution of the League of Nations, and
that the role of the latter organization with regard to the safeguarding
of the interests of the population of the mandated territory and the
supervision of the mandatory Power’s administration was transferred to
the United Nations. This is also the case in respect of the power to
revoke the Mandate on account of a material breach of its obligations by
the mandatory Power, although no provision was ever adopted regulating
the modalities of the exercise of this power inherent in the mandate
institution. It follows therefore that it has always been left to the organ
or organs of the world organization which, should the case arise, were to
be regarded as competent in the matter, to determine the procedure for
this purpose.

While, in the time of the League of Nations, the conduct of the man-
datory Power did not lead the world organization to contemplate
revocation of the Mandate, the United Nations was gradually brought
into sucn a position, as South Africa came to base its administration of
Namibia on a concept of race relations which is not that of the present

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day. The course which led to resolution 2145 (XXI), by which in 1966
the General Assembly declared the Mandate to be terminated, was
marked out by judicial decisions taken by the Court, in the form of
Advisory Opinions in 1950, 1955 and 1956, and in the form of Judgments
in 1962 and 1966. These successive decisions cast an occasionally flickering
light not only on the facts justifying the conclusion that there existed a
power of revocation of the Mandate vested in the United Nations, but
also upon the forms in which that power should or should not be exer-
cised.

¥t is in the nature of things that the revocation of the Mandate on
account of material breach by the mandatory Power of the obligations
incumbent upon it requires that the existence of such breach be found in
a decision having binding force. As I have just observed, the texts
underlying the mandates system do not clearly indicate what organ has
the duty to take such a decision. Those texts must therefore be supple-
mented by way of interpretation. The question was first raised whether
it was not for the Court to take the decision. However the 1966 Judgment
decided that the Court could not determine, by means of a judgment
having force of res judicata, the question whether the mandatory Power
had or had not violated the obligations of a general nature laid upon it by
the Mandate. In these circumstances, the organ of the United Nations
which must be regarded as competent to take a decision in the matter
cannot be any other than the General Assembly, to which the functions
of supervision of the administration of the Mandate formerly vested in
the Council of the League of Nations were transferred. This is why I
consider that it must be held that the General Assembly had the power to
revoke the Mandate on account of material breach of its obligations by
the mandatory Power. Although it may have appeared preferable that,
before taking its decision, the General Assembly should ask the Court for
an advisory opinion on the question whether South Africa had violated
its obligations, no provision in the applicable texts obliged it to do so.

This situation recalls that which would exist in the event of the appli-
cation of the provisions of Article 6 of the United Nations Charter,
concerning the expulsion of a member State which has persistently
violated the principles contained in the Charter. A decision in this respect
is to be taken by the General Assembly upon the recommendation of the
Security Council. There is nothing to compel either the Security Council
or the General Assembly to ask for an opinion of the Court before taking
a decision on the question whether the member State concerned has
violated the principles of the Charter. In other words, a political organ is
entitled to take a decision upon grounds which are admittedly of a legal
nature, but the validity of which cannot be examined by the Court once
the political organ has taken its decision within its proper sphere of
competence.

I therefore consider that in the present case the Court should have
confined itself to the finding that resolution 2145 (XXI) is valid without

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examining the correctness of the assessment of the facts upon which that
resolution is based. To embark upon such an enquiry, as the Court has
done in the present Opinion, amounts to implying that the Court could
possibly have reached conclusions different from those of the General
Assembly and could therefore have declared the resolution invalid. But,
in the light of the foregoing, I consider that to be out of the question.

The effect of resolution 2145 (XXI) was thus to withdraw from South
Africa the right to administer Namibia as mandatory Power. The inter-
national status of that Territory however remained intact, and the resolu-
tion according to which the Mandate was declared terminated cannot be
interpreted in any other sense. It follows that that resolution has created
for South Africa the obligation to make way for such new administration
as the United Nations might organize with a view to achieving the ultimate
objective of the Mandate, namely self-determination for the population
of the Territory. In view of the complexity of this exercise, it would be
eminently desirable that the South African authorities and the United
Nations organs should co-operate in carrying it out, but it is not for the
Court to prescribe the modalities of such co-operation. It goes without
saying that, so long as South Africa remains in Namibia, it will be bound
to continue to fulfil the obligations which the Mandate has laid upon it.
The specification of what those obligations are is not the object of the
request for an opinion which has been addressed to the Court.

Since South Africa has refused to comply with resolution 2145 (XXT),
and since the General Assembly has no means of execution to ensure
observance of its resolution, the Assembly had to have recourse to the
Security Council, just as the Council may be seised, according to Article
94, paragraph 2, of the United Nations Charter, of a situation in which
any party to a case which has been decided by a judgment of the Court
fails to perform the obligation incumbent upon it under the judgment.
It was by a whole series of resolutions, which are listed in the present
Advisory Opinion, that the Security Council espoused resolution 2145
(XXI) and called upon South Africa to withdraw from Namibia. The
resolution to which the present request for advisory opinion refers is
resolution 276 (1970), by which the Security Council declared, inter alia,
that the continued presence of the South African authorities in Namibia
was illegal. It is ‘on the legal consequences for States of the continued
presence of South Africa in Namibia notwithstanding that resolution
that the Court has been requested to give its opinion.

As a first consequence, sub-paragraph 1 of the operative clause of the
Advisory Opinion mentions the obligation of South Africa to withdraw
its administration from Namibia immediately. However, it is clear from
what has been said above that it is resolution 2145 (X XI) which created
the obligation for South Africa to withdraw from Namibia. That obligation
therefore cannot be described as a consequence of the continued presence
of South Africa in Namibia notwithstanding resolution 276 (1970). At
the stage corresponding to resolution 276 (1970), the relevant legal con-

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sequences for South Africa are solely those to which it is exposed because
of its refusal to comply with resolution 2145 (XXT). Although I can
support what is said in sub-paragraph 1 of the operative clause of the
Opinion, I consider that as a matter of logic it should not be there at all.

*

On the other hand, the operative clause of the Advisory Opinion should
deal with the legal effects which the continued presence of South Africa
in Namibia has upon its relations with other States and, in particular,
with the other Members of the United Nations. Having regard to what
has been said above, these States must consider the termination of the
Mandate as an established fact and they are under an obligation not to
recognize any right of South Africa to continue to administer the Mandate.
The question is therefore what conduct this obligation of non-recognition
imposes as such on States. The reply must be sought in customary law as
reflected in the settled practice of States, but that is easier in respect of the
non-recognition of a State or of the government of a State than it is in
respect of the non-recognition of the administration of a territory by the
recognized government of a recognized State, especially if the economy
of the said territory is more or less integrated in that of the said State. The
very term non-recognition implies not positive action but abstention from
acts signifying recognition. Non-recognition therefore excludes, above
all else, diplomatic relations and those formal declarations and acts of
courtesy through which recognition is normally expressed. Nevertheless,
although the notion of non-recognition excludes official and ostentatious
top-level contacts, customary usage does not seem to be the same at the
administrative level, since necessities of a practical or humanitarian nature
may justify certain contacts or certain forms of co-operation.

A similar approach seems to prevail in regard to international agree-
ments. While non-recognition seems not to permit the formal conclusion
of treaties between governments, agreements between administrations, for
instance on postal or railway matters, are considered to be possible. In
the same way, the legal effect to be attributed to the decisions of the judicial
and administrative authorities of a non-recognized State or government
depends on human considerations and practical needs. It would not be
difficult to cite at least one current example showing the diversity and lack
of rigidity with which the notion of non-recognition is applied by States
which do not recognize some other State. The reasons may, of course,
differ from those for which the administration of Namibia by South
Africa must not be recognized, but what is important for the present
Advisory Opinion is the fact that, in the international law of today, non-
recognition has obligatory negative effects in only a very limited sector
of governmental acts of a somewhat symbolic nature.

Outside this limited sphere, there cannot exist any obligations incumbent
on States to react against the continued presence of South Africa in Namibia

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unless such obligations rest on some legal basis other than the simple duty
not to recognize South Africa’s right to continue to administer the Terri-
tory. Such a basis can be sought only in those resolutions of the Security
Council which were referred to in the course of the proceedings. Personally,
I approve the reasons for which the majority of the Court rejected the
objections advanced by South Africa against the formal validity of some
of those resolutions. As for their coritent, resolution 276 (1970) which is
explicitly referred to in the request for an opinion addressed to the Court,
declares in the first place, in paragraph 2, that the continued presence of
the South African authorities in Namibia is illegal and that consequently
all acts taken by the Government of South Africa on behalf of or concern-
ing Namibia after the termination of the Mandate are illegal and invalid.
Then, in paragraph 5, the Security Council calls upon all States, particu-
larly those which have economic and other interests in Namibia, to refrain
from any dealings with the Government of South Africa which are incon-
sistent with paragraph 2. The wording of paragraph 2 gives the impression
that the non-validity of all acts taken by South Africa concerning Namibia
is considered to be an automatic effect of the illegality of its continued
presence in that Territory. The sense of paragraph 5 therefore seems to be
that States must not recognize such acts as valid. However, having regard
to the foregoing, the duty incumbent on States not to recognize South
Africa’s right to continue to administer Namibia does not entail the
obligation to deny all legal character to the acts or decisions taken by the
South African authorities concerning Namibia or its inhabitants. In this
regard, the notion of non-recognition leaves to States, as I have said, a
wide measure of discretion.

Thus resolution 276 (1970) seems to go beyond the area of the obligatory
effects of mere non-recognition. This is even more evident in the case of
resolution 283 (1970), which was adopted by the Security Council at the
same time as the request for an opinion addressed to the Court. Since
non-recognition does not involve as a necessary effect anything more than
the abstention from governmental acts of a certain type, it is obvious that
a request to States to limit or stop the commercial or industrial relations
of their nationals with a certain country or territory belongs to a different
sphere and that the measures in question are active measures of pressure
against a State or a government. Now, in paragraph 7 of the operative part
of resolution 283 (1970), the Security Council cails upon all States to
discourage their nationals from investing or obtaining concessions in
Namibia. And still further from the area of the netion of non-recognition
is paragraph 11 in which the Security Council launches an appeal to all
States to dissuade them from encouraging tourism in Namibia. On this
latter point the wording of the resolution gives the impression that what
is involved here is rather a mere recommendation but, for a whole series
of other measures mentioned in the same operative section and going

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beyond the obligatory effects of non-recognition, the question arises
whether the resolution merely pronounces recommendations or is binding
on States. The same question arises obviously as has already been stated
in respect of resolution 276 (1970) so far as concerns the non-recognition
of the validity of acts and decisions taken by the South African authorities
in Namibia.

The question is now therefore no longer one of the obligations inherent
in the duty of States not to recognize South Africa’s right to continue
to administer Namibia but one of the creation of obligations for States
requiring them to apply other measures of pressure against South Africa
because of its refusal to withdraw from Namibia. In this connection, the
Court is found to be divided on the meaning to be attributed to Arti-
cles 24 and 25 of the Charter of the United Nations in relation to
the provisions of Chapter VIT. Personally, I share the opinion of those
who think that Articles 24 and 25 cannot have the effect of evading the
conditions which Chapter VII lays down for the Security Council to
be able to order, with binding effect for States, the kind of measures
involved here, more particularly the partial interruption of economic
relations. According to Article 41 in Chapter VIT the Security Council
may impose upon States the obligation to apply such measures only
within the framework of action in the event of threats to the peace, breaches
of the peace and acts of aggression. There can be no doubt that, in this
particular case, the Security Council did not adopt the resolutions in
question in the context of any such action, clearly defined as it must be
because of its nature. If only for this reason, I consider that it is quite out
of the question that in this case the Court is confronted with Security
Council decisions invested with binding force for States. They cannot be
anything other than recommendations which, as such, obviously have
great moral force but which cannot be regarded as embodying legal
obligations.

The foregoing observations make clear the reasons why I am not able
to concur in the whole of sub-paragraphs 2 and 3 of the operative part of
the Advisory Opinion.

In sub-paragraph 2, emphasis is placed on the obligation incumbent
upon States Members of the United Nations to recognize the illegality
of South Africa’s presence in Namibia, but there is the additional statement
that member States are under obligation to recognize the invalidity of
acts taken by South Africa on behalf of or concerning Namibia and to
refrain from any acts and in particular any dealings with the Government of
South Africa lending support or assistance in regard to the presence and
administration of South Africa in Namibia. This goes beyond the obli-
gations which flow from the duty not to recognize South Africa’s right
to continue to administer Namibia. Even if it is not possible to indicate
precisely the acts from which the concept of non-recognition requires
States to refrain, it cannot be denied that, since the South African adminis-
tration of Namibia is a de facto administration, many acts taken by it

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can be recognized as valid by the authorities of other States even beyond
what is admitted in paragraph 125 of the Opinion. As for the prohibi-
tion of acts which would constitute lending support or assistance to the
presence and administration of South Africa in Namibia, this vague and
general formula gives no very clear idea of the specific acts it is intended
to cover. It is capable of being construed as imposing obligations that
are more extensive than those which flow from the non-recognition of
South Africa’s right to continue to administer Namibia. This is an
additional reason why I could not vote in favour of this sub-paragraph
of the operative clause.

As for sub-paragraph 3 of the operative clause, | cannot subscribe to it
except in so far as it signifies that States which are not Members of the
United Nations are also duty bound not to recognize the administration
of Namibia by South Africa. But, when this paragraph proclaims that
those States are under an obligation to give assistance in the action which
has been taken by the United Nations with regard to Namibia, the im-
pression is created that what is intended is an active contribution to mea-
sures of pressure and I do not think those States are under any obliga-
tion in that respect.

I consider therefore that, in so far as they relate to measures of pressure
against South Africa going beyond what is required by the non-recognition
of its right to continue to administer Namibia, the resolutions of the
Security Council constitute only recommendations which do not create
any obligations for States. Nevertheless I consider that these resolutions
may afford States, whether Members of the United Nations or not,
legitimate grounds for taking up a position in their legal relationships
with South Africa which otherwise would have been in conflict with rights
possessed by that country. At the legal level, the resolutions in question
have created, not obligations, but rights to take action against South
Africa because of its continued presence in Namibia. In this respect, the
recommendations of the Security Council might guide the action of
States, subject to the restriction that it would be wrong to run counter
to the moral or material well-being of the population of Namibia, which
is still a valid objective of the Mandate. This consideration would neces-
sitate the making of a choice amongst the acts of administration taken by
South Africa with regard to Namibia, and that choice cannot be under-
taken by the Court for lack of sufficient information on such a complex
matter.

(Signed) S. PETREN.

125


DISSENTING OPINION OF JUDGE PETREN
[Translation]

Having voted against the Order, I append thereto this dissenting
opinion.

There is an evident possibility that the circumstances in which the
Court, on 17 August 1972, indicated interim measures of protection might
have undergone such changes as could justify some modification of those
measures. One of the factors which ought to be taken into account in that
respect is the evolution of fish-stocks. In its telegram protesting against
the continuation of interim measures, the Government of Iceland main-
tained that British and Icelandic catches continue to decrease per unit
effort and that small immature fish of the 1970 year-class, which is the
only known sizeable year-class and should constitute the main source of
supply in 1976-1978 and the necessary ‘‘recruitment”, are now increas-
ingly being landed in United Kingdom ports. To my mind, these indica-
tions gave rise to questions which were serious enough to warrant inviting
the Parties, before the Court took up any position on the continuance
of interim measures, to furnish it with the relevant information, available
from specialized organizations and institutions, as to the evolution and
exploitation of fish-stocks in the fishing-waters concerned.

The many incidents that have occurred at the fishing-grounds have
shown that the interim measures of protection indicated on 17 August
1972 have not been fulfilling their purpose, and there I see another reason
for re-appraisal of those measures.

Another element which, as I see it, would have merited being taken into
consideration is the way the Court recently founded the indication of
interim measures on the possible existence of a new rule of international
law. By the Orders made on 22 June 1973 in the cases concerning Nuclear
Tests (Australia v. France; New Zealand v. France) the Court indicated
in particular that the French Government should avoid nuclear tests
causing the deposit of radio-active fall-out on Australian and New Zea-
land territory. This indication of interim measures was apparently
founded on the possible existence of a new general rule of international
law prohibiting States from carrying out atmospheric nuclear tests
causing the deposit of radio-active fall-out, however slight, on the terri-
tory of other States. Nevertheless this general rule of international law,
if it exists, has not yet been given codified expression. Its existence, there-
fore, could only be proved with the aid of other sources of law represen-
ting an evolution which is still in progress.

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FISHERIES JURISDICTION (DISS. OP. PETREN) 311

Now, in claiming the fishing-rights contested by the British Govern-
ment in the present case, the Government of Iceland has sought to draw
authority from an evolution of international law which is upheld by an
ever-increasing number of declared attitudes and is less hypothetical in
character than the putative right on the basis of which the Court indicated
interim measures in favour of Australia and New Zealand.

I therefore feel that the question of interim measures of protection in
the present case ought also to be re-examined in the light of this recent
precedent.

In view of the foregoing, and as the Court, in accordance with Article
53 of its Statute, is under a duty also to take into consideration such
indications as it may have which militate in favour of a party that fails
to appear, I am of the opinion that the interim measures should have been
subjected to re-appraisal. That, in accordance with Article 61, paragraph
8, of the 1946 Rules, would have required the Court to invite the Parties
to present their observations on the subject. The majority having opposed
this course, I was obliged to vote against the Order.

(Signed) Sture PETREN.

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