LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA)

NOTWITHSTANDING SE- CURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971
Facts:
 Namibia is under the illegal occupation of South Africa, the latter claiming that Namibia it has a claim of right to
annex the Namibian Territory and that Namibia nationals desired South Africa’s rule.
 Under the United Nations Security Council Mandate, Member states of the United Nations are prohibited from
taking physical control of other territories of which South Africa was subjected to. This was ignored by South
Africa.
 The Resolution 2145 terminating the Mandate of South Africa was adopted by the U.N and the Security Council
adopted Resolution 276 (1970) which declared the continuous presence of South Africa in Namibia as illegal and
called upon other Member States to act accordingly.
 The Security council sought an advisory opinion from the ICJ, asking what were the legal consequences for States
of the continued presence of South Africa in Namibia notwithstanding Resolution 276.
Issue: Are mandates adopted by the United Nations binding upon all Member States so as to make breaches or violations
thereof result in a legal obligation on the part of the violator to rectify the violation and upon other Member States to
recognize the conduct as a violation and to refuse to aid in such violations? Yes.
Ruling: The court held that SA was under an obligation to withdraw its administration in Namibia. It also held that
other States were under an obligation not to recognize any acts by SA’s administration in Namibia.
As Member States, the obligation to keep intact and preserve the rights of other States and the people in them has been
assumed. So when a Member State does not toll this line, that State cannot be recognized as retaining the rights that it
claims to derive from the relationship. In this particular case, the General Assembly discovered that South Africa
contravened the Mandate because of its deliberate actions and persistent violations of occupying Namibia.
In examining this action of the General Assembly it is appropriate to have regard to the general principles of international
law regulating termination of a treaty relationship on account of breach. For even if the mandate is viewed as having the
character of an institution, as is maintained, it depends on those international agreements which created the system and
regulated its application. As the Court indicated in 1962 "this Mandate, like practically all other similar Mandates" was a
special type of instrument composite in nature and instituting a novel international régime. It incorporates a definite
agreement. The Court stated conclusively in that Judgment that the Mandate ". . in fact, and in law, is an international
agreement having the character of a treaty or convention" The rules laid down by the Vienna Convention on the Law of
Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may
in many respects be considered as a codification of existing customary law on the subject. In the light of these rules,
only a material breach of a treaty justifies termination, such breach being defined as:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty" (Art. 60,
para. 3)
General Assembly resolution 2145 (XXI) determines that both forms of material breach had occurred in this case. By
stressing that South Africa "has, in fact, disavowed the Mandate", the General Assembly declared in fact that it had
repudiated it. The resolution in question is therefore to be viewed as the exercise of the right to terminate a
relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose
of that relationship.
It has been contended that the Covenant of the League of Nations did not confer on the Council of the League power to
terminate a mandate for misconduct of the mandatory and that no such power could therefore be exercised by the
United Nations, since it could not derive from the League greater powers than the latter itself had. For this objection to
prevail it would be necessary to show that the mandates system as established under the League, excluded the
application of the general principle of law that a right of termination on account of breach must be presumed to exist
in respect of all treaties, except as regards provisions relating to the protection of the human person contained in
treaties of a humanitarian character (as indicated in Art. 60, para. 5, of the Vienna Convention). The silence of a treaty as
to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside
of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not
normally envisaged when a treaty is concluded.