Liber Amicorum 'In Memoriam'

of Judge José María Ruda

Board of Editors

Calixto A. Armas Barea

Julio A. Barberis
Julio Barboza
Rugo Caminos
Enrique Candioti
Ernesto de La Guardia
Hortensia D.T. Gutiérrez Posse
Guillermo Moncayo
Ernesto J. Rey Caro
Raúl E. Vinuesa
Secretary: Frida M. Armas Pfirter

Kluwer Law Intemational

The Hague / London / Boston
Africa and the International Court of Justice

Prince Bola A. Ajibola

l. Introduction

A former presiden! ofthe Court wrote in 1983 thatAfrica has in one aspee! or anoth-
er been before the Court since the days of the League of Nations, 'though unfortu-
nately more often as the object rather than the subject of international law.' 1 Indeed,
the perceived reserved and modest participation of African States to the history ofthe
development of modern judicial settlement of intemational disputes, certainly up to
the time when this view was expressed, has been much noted, albeit with progressive-
ly Iess endorsement by commentators.' It has been observed that African states, like
ali newcomers to the international legal system in its varying stages of development,
have been suspicious of the established mechanisms of judicial settlement, and have
consequently not made as much of a contribution to these mechanisms as they may
have done in sorne areas of substantive international law.3 Their participation was
indeed modest in a number of different aspects. Firstly, it was modest in the sense of
the contribution of these States to the development of the institutional norms of
judicial settlement, both substantive and procedural. Secondly, it was modest in the
sense of their contribution to the development of the rules of intemational law
applied in the resolution of disputes arising before the judges in question. Thirdly, it

1 T.0. Elias, The lnternationa/ Court ofJustice and Sorne Contemporary Problems (1983), p. 299.
2 See, e.g., A. Cassese, International Law in A Divided World (1986), p. 205, § 113, identifies
sorne reasons for this lack ofparticipation, far example that the substance ofthe law being applied
was not one in which they had participated, and the Jack of representation of African States on inter-
national tribunals. While these conditions have changed, he suggests that it will probably be a while
before these states "depart from old habits and views and come to accept a method that is
unquestionably commendable in many respects". He however points out, in a statement which is in
many ways one of the conclusions of this paper, that it must not be forgotten that "Western coun-
tries - whose general legal philosophy should predispose them to submit to adjudication - are very
often no less reluctant than other States to resort to this mode ofpeaceful settlement."
3 Por example, the law ofthe sea and the law ofstate responsibility für expropriation ofaliens'
property.

353
C.A. Armas Barea et al. (ed.) Liber Amicorum 'In Memoriam 'ofJudge José Maria Ruda, 353-366
© 2000 Kluwer Law Internalional. Printed in the Netherlands.
354 Liber Amicorum José María Ruda

was modest in the sense of the participation of these States in proceedings befare
international judicial fora. It is this third issue that will be focused upon in this paper.
It will involve an analysis of the main cases before the Court which have involved
Africa, whether directly or indirectly, with a view to illustrating how much of a
change there has been in recen! years to the opinion quoted at the beginning of this .
paper.

2. The Permanent Court of International Justice

The limited involvement of African States with the work of the Permanent Court is
striking. In the Nationality Decrees in Tunis and Morocco4 case, the dispute regard-
ing the applicability of nationality decrees issued by the French government to
British subjects was a dispute between Great Britain and France. The ruling of the
Court that the dispute was not solely a matter of domestic jurisdiction is oflittle con-
sequence for present purposes; the Court <lid not enter into the merits of the case.5
Likewise, the judgment in the Osear Chinn6 case did not revolve around the fact that
it was concemed with the right to free trade in an African dependen! State. It was
really a case about the legality of the apparently monopolistic practices of the UNA-
TRA Company, which had adverse effects on the rights of Mr Chinn, a British citi-
zen, to carry on his business. And in the Phosphates in Morocco 7 case, the Court
found itselfnot to have jurisdiction to hear the case. The record during the period of
the Permanent Court is thus largely insignificant as far as Africa was concemed. This
is hardly surprising, at that time most of Africa was under colonial or other depen-
den! status, and since States alone could be parties to proceedings before the Court,
African States were hardly involved as such. Far present purposes, the only signifi-
cance ofthe Court's work in this period was the fact that it was so insignificant.

4 PCIJ Reports (1923), Series B, No. 4.

5 Elias wrote that [i]t must be regretted ... that the Court was not called upon to enter into the
merits of the dispute, which raised itnportant questions relating to the issue of division of sover-
eignty between a protecting and a protected state, especially in respect of rnak:ing laws affecting
people resident within the protected territory of different nationalities frorn those ofthe protecting
and protected States" (op. cit. supra n.l, at p. 306)
6 PCIJ Reports (1934), Series C, No. 75.
7 PCIJ Reports (1939), Series A/B, No. 74.
 A/rica and the International Court oj'Justice 355

3. The International Court of Justice

"The cotnplete transformation ofthe,world's political configuration in the UN era, the awak-
ening of the Developing WÓrld, the explosion of mass communications along with the
expansion oftechnology and transnational industries on an unprecedented scale- all with-
in a span of less than fifty ycars - have dramatically changed the map and the power
blocks ofthe earth. This circumstance has given acute urgency to the need for a true inter-
national order. An international order which, if it is to become salutary to mank:ind, must
be based on thc rule of law, provided that this legal code is the true reflection and the com-
mon denominator of all the 'principal legal systems and civilisations of the world', as so
aptly stipulated in the Statute ofthe ICJ. There can be no doubt that this intemational law
of the future, if it is to become a workable instrument in the century ahead, \VÍll be of an
altogether different nature from the law which up to the 1960s was ambitiously, yet erro-
neously, cal!ed the Law ofNations."8

The post-1945 era ushered in a new and infinitely more genuine intemational com-
munity, especially with the significance attached to the concept of self-determination
of colonies in the practice ofthe United Nations under the Charter. Many cases here
involved African States in a much more meaningful way.
The first significan! case far our purposes was the Intemational Court's Advisory
Opinion on the International Status of South-West Africa.9 In that case, the Court
held that certain resolutions adopted in 1923 by the Council ofthe League ofNations
effectively endowed the inhabitants of mandated territories with the international
right of petitíon as a means of ensuring compliance on the part mandatory states with
their obligations under the Mandates System add. This was held to be confirmed by
Article 80(1) ofthe Charter. The Court said ofthatArticle

It purports to safeguard, not only the rights of States, but also the rights of peoples of man-
dated territories until Trusteeship Agreements are concluded. The purpose must have been to
provide a real protection for those rights; but no such rights could be effectively safeguarded
without international supervision and a duty to render reports to a supervisory organ.1 O

This case is significant in international law far two related reasons. Firstly, it
marked a significan! inroad into the erstwhile perception of States as being the only
holders of procedural intemational law rights.11 Secondly, these rights were not

8 A. Eyffinger, The International Court ofJustice 1946-1996, p. 5.

9 ICJ Reports (1950), p. 128.
10 At pp. 136-137.
11 There were sorne precedents for the expression of such views by the PCIJ, notably the
Jurisdiction ofthe Courts ofDanzig case (PCIJ Reports, series B. No. 15). But apart from not invol-
ving African states, did not arise in a context in which there was increased momentum towards
spreading the reach of international law beyond the confines of the European system, and is thus a
momentous step in a consideration ofhuman rights law rather than the role of Africa in relation to
the Court in that particular political context post-1945.
356 Liber Amicorum José María Ruda

rights of international organisations of States, whose personality had been established

a year earlier by the Court in the famous Reparations case, 12 but of individuals. The
Court held here that individuals were protected by treaty against the infringement of
certain fundamental human rights.
The next important group of cases in this "Era ofDecolonization"13 also concern-
ed South-West Africa. In the jurisdictional phase of the South-west Africa cases, the
Court held that it had jurisdiction to deal with the merits of the case brought by
Ethiopia and Liberia against South Africa alleging a breach ofthe latter's obligations
under the Mandate system in the policy of apartheid. But in perhaps its most contro-
versia! decision to date, the Court held in 1966 when the merits of the case carne to
be heard that the Applicants did not have the requisite legal standing to bring the
case, as they could not point to any legal right or interest oftheir own which had been
(allegedly) infringed. The significance of this 1966 decision has been summed up
succinctly by Abi-Saab:

lt thrust the Court in toan acute crisis, having shattered the confidence of large parts of the
world, particularly the Third World, in the Court as it then was. It gave rise to an extended
and very critica! debate on the role of the Court in the general Assembly, leading to a read-
justment in the composition ofthe bench to make it more represcntativc ofthe various com-
ponents ofthe international community. Perhaps the most significant consequence ofthis
crisis was a new self-awareness and changc of attitudc on the part of the Court itself. It was
very distant and rcserved in its relations with the UN, states and public opinion in general.
Indeed, one of the main criticisms addressed to it was that, in exercising its contentious
jurisdiction, it acted as if it were an arbitral tribunal of thc nineteenth century and not as an
integral part ofthe UN, attuned to contemporary international law.14

This situation, the first time African States initiated proceedings befare the Court,
marked a veritable watershed in the role of the Court. The well-known Advisory
Opinion on the Legal Consequences for Sta tes o/ the Continued Presence o/ South
A/rica in Namibia Notwithstanding Resolution 269 (1970)15 clearly marked in-
creased awareness on the part of the Court of the demands made of it by the newly
composed international community. The Court effectively gave the judgment it felt
unable to give in 1966. It rejected ali the technical objections standing in the way of
its competence to pronounce upan the obligations of South Africa with respect to
South-West Africa, objections which the dissenting judges found convincing. The
case basically revealed a new approach in the Court's reasoning.16

12 Reparationsfor Injuries Suffered in the Service ofthe United Nations, ICJ Reports (1949), p.
174.
13 See Elias, op. cit. supra n.1, Chapter 16.
14 G. Abi-Saab, "The Intemational Court as a World Court", in V. Lowe and M. Fitzmaurice
(eds.), Fifty Years ofthe International Court of Justice: Essays in Honour o/Sir Robert Jennings
(1995), p. 3, at pp. 5-6.
15 ICJ Reports (1971), p.1.
16 We shall return to this matter shortly.
 A/rica and the International Court of Justice 357

It also further revealed a matter of procedural significance in, the practice of the
Court, namely, that in effect, the mechanism ofthe advisory opinion allows the Court
to reach results which would be difficult to reach in contentious proceedings. The
freedom to be more sensitive to the context in which legal issues arise at (the expense
of legal-technical considerations) is clearly illustrated by this case as it was in the
1950 lnternational Status of South-West A/rica case, considered above, which was
also an advisory opinion. It matters little that the consequence of Article 59 of the
Statute of the Court is often viewed as depriving advisory opinions of legal effect, a
view maintained by a respectable body of opinion. I 7 The point is that the
International Court of Justice, the principal judicial organ of the United Nations,
whose task, as stated in Article 38 of the same Statute, is to apply international law,
considers a point of international law and gives its opinion thereon. To say that the
opinion has no legal effect or is not "binding", viewed from a certain aspect, verges
on the bizarre. The Court is stating what international law prescribes. In the Namibia
Opinion far instance, the dispositive part of the judgment provides that

¡ (1) ... the continued presence ofSouthAfrica in Namibia being illegal, South Africa is under
an obligation to withdraw its administration from Namibia immediately and thus put an end
to its occupation ofthe Territor.y.
(2) ... States Members ofthe United Nations are under obligation to recognise the illegality
of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concem-
ing Namibia.18

These are statements of the legal obligation. Whatever views one holds on the
bindingness or otherwise of advisory opinions, it cannot be said that such pronounce-
ments are anything but statements of legal demands. It would seem difficult, from
this point of view, to agree with the view that advisory opinions are not binding. To
say otherwise is to say that international law is not binding, because the Court's pro-
nouncements in Advisory proceedings are pronouncements of international law.
Again, in the Western Sahara advisory opinion, the Court made clear its commit-
ment to the principie of self-determination in a colonial context, an issue which, as a
matter of history, has been of especial significance far Africa, most of which had
been colonised since the end of the nineteenth century. Two questions were put to the
Court in that case. The first was whether Western Sahara was, at the time of coloni-
sation by Spain, a territory belonging to no-one (terra nullius), and the second was,
if the answer to the first was in the negative, what the ties were between the territo-
ry of Western Sahara on the one hand and the Kingdom of Morocco and the
Mauritanian entity on the other. The Court answered the first question in the nega-

17 Article 59 reads: "The decision of the Court has no binding force except between the parties
and in respect ofthat particular case'', and is located in Chapter 111 ofthe Statute dealing, we must
remember, with contentious rather than advisory proceedings (which are dealt with in Chapter IV).
The Article 59 argurnent, to the extent that it is used, is nota good one in this context.
18 At p. 58.
358 Líber Amicorum José María Ruda

tive. It held, inter alia, that although the emirates and tribes which existed in the area
at the time of colonisation did not have a single separate corporate existence as one
politi cal unit, the nomadic peoples of the area did possess sorne rights relating to the
lands through which they migrated, constituting legal ties with the territory of
Western Sahara. 19 Regarding the second question, the Court found that there were
ti es between the Sultan of Morocco and sorne of the tribes living in Western Sahara,
and also between Western Sahara and the Mauritanian entity. But none of the,se ties
was found to establish any tie of territorial sovereignty between the territory of
Western Sabara and the Kingdom of Morocco or the Mauritanian entity. There \Vas
thus nothing to impede the decolonisation of the territory of Western Sahara based
on the application of the principie of self-determination 'through the free and genu-
ine expression of the will of the peoples of the territory'.
Going on over a decade later, issues related to decolonization in Africa arase
again before the Court in the Frontier Dispute case between Burkina Faso and
Ma!i.20 The compromis in that case provided that the settlement ofthe boundary dis-
pute should be based upon the originally Latin American idea of uti possidetis, i.e.
respect for the principie of the "intangibility of frontiers inherited from coloniza-
tion". 21 There are different aspects to the real significance ofthis case. Firstly, it was
the first case in which two African States were parties to litigation befare the Court
in relation to matters of particular interest and especial concern to African states,22
i.e. the decolonization issue, an opportunity for which was missed in the South-West
Africa affair. It was thus a par! ofa trend (which gathered momentum in the 1980s)
towards full acceptance of the role of the Court by African States. Secondly, and
more significantly, there is the related poínt that in this case the full participation of
African states not just in appearing before the Court as litigants, but in contríbuting
to the substance of the general law to be applied by the Court was acknowledged. It
is worth quoting a generous part of the Chamber's judgment in full:

... Uti possidetis, as a principie which upgraded former administrative delimitations, esta-
blished during the colonial period, to intemational frontiers, is therefore a principle of a
general kind which is logically connected to this form of decolonization whenever it occurs.
24 ... There is no doubt that the obligation to respect pre-existing intemational frontiers in
the event of State succession derived from a general rule of international Iaw, whether or
not the rule is expressed in the formula uti possidetis. Hence the numerous solemn affir-
mations of the intangibility of frontiers existing at the time of independence of African
States, whether made by senior African statesmen or by organs of the Organization of

19 ICJ Reports (1975), p. 12, pp. 63-65.

20 ICJ Reports (1986), p. 554.
21 At p. 557.
22 The litigation involving Libya and the delimitation of the continental shelf in the
Mediterranean <lid involve traversing completely uncharted territory. But this is not to detract in
any way from the immense significance of those cases, a matter to which we shall turn shortly.
 A/rica and the International Court ofJustice 359

African Unity itself, are evidently declaratory rather than constitutive: they recognise and
confirm an existing principle, and do not seek to consecrate a new princ.iple or the exten-
sion to Africa of a rule previ~usly applied only in another continent.
25 ... However, it may be wondered how the time-hallowed principle has been able to with-
stand the new approaches to international law as expressed in Africa, where the successive
attainment of independence and the emergence of have been accompanied by a certain
questioning of traditional international law. At first sight this principie conflicts outright
with another one, the right of peoples to self-determination. In fact, however, the mainte-
nance of the territorial status qua in Africa is often seen as the wisest course, to preserve
what has been achieved by the people who struggled for their independence, and to avoid
disruption which would deprive the continent of the gains which have been achieved by
much sacrifice. The essential requirement of stability in arder to survive, to develop and
gradually to consolidate their development in ali fields, has induced African States judi-
ciously to consent to the respecting of colonial frontiers, and to take account of it in the
interpretation of the principie of self-determination of peoples.
26 ...Thus the principie of uti possidetis has kept its place among the most important legal
principies, despite the apparent contradiction which explained its coexistence alongside the
new norms. Indeed it was by deliberate choice that the African states selected, among ali
the classic principies, that ofuti possidetis. This rernains an undeniable fact.23

This case thus signifies that the observation regarding the modesty of the contri-
bution of African States identified at the beginning of this paper can no longer be
regarded as accurate, in any of the three senses identified there.
Further confirrnation of this can be seen in the two cases involving the delirnita-
tion of the Libyan continental shelf as against Tunisia (1982)24 and Malta (J 985).25
The significance of those cases as regards issues raised and pronounced upon by the
Court has been analysed extensively in the literature. For present purposes, the
importan! point is the way in which there has been a perceivable change in the tech-
niques employed by the Court. Abi-Saab describes this as "a progressive tendency in
the l 970s and J980s towards transactional justice (particularly in delimitation
cases)". 26 He continues, noting the "distending of the logical chain of reasoning
between the judicial decision stricto sensu (dispositif! and the grounds (motif! lead-
ing to it":

23 At pp. 566-567.
24 ICJ Reports (1982), p. 18.
25 ICJ Reports (1985), p. 13.
26 Op. cit. supra, n. 14, at p. 9.
 --
360 Liber Amicorum José Maria Ruda

The earlier judgments followed a rigorous process of formal logical reasoning: the stated
premises inexorably led to the conclusion. By contrast, the style of sorne of the more recent
judgments or Advisory Opinions (e.g. the Advisory Opinion on the lnterpretation ofthe
Agreement between the WHO and Egypt and the judgment in the Continental shelf
(Tunisia/Libya) case) is quite eclectic: a good part ofthe text blandly restates the canten.
tions of the parties ... or produces alternative lines of reasoning, befare the decision suddenly
appears without sufficiently revealing the malll1er by which it was reached. This obvíously
leaves the Court a greater latitude in choosing among possible solutions. 27

He goes on to identify the resort to equity and equitable principies as another

recent feature ofthe Court's jurisprudence. These observations are brought out fully
in the Tunisia/Libya case. It was the second case, after the North Sea Continental
She/j'- 8 cases, in which there was a ful! scrutiny of the role of equity as a source of
decision, and it develops the role played by the concept in many significan! respects.
The inherent subjectivity in the notion of equity which had been the subject of
academic comment since the North Sea decision was generalised and elaborated in
the Tunisia-Libya case. The Court in the North Sea cases, as affirmed in the Fisheries
Jurisdiction cases, had stated that "it is not a matter of finding simply an equitable
solution, but an equitable solution derived from the applicable law."29 Also insisting
on equity as a part of the law, it had stated that "whatever the legal reasoning of a
court of justice, its decisions must by definition be just and therefore in that sense
equitable."30 But the Court took things much further in the Tunisia-Libya case. It
insisted that it was "virtually impossible to achieve an equitable solution to any deli-
mitation without taking into account the particular relevant circumstances of the
area." Rather than specifying the meaning and operation of the notion of equity, the
Court found that the result was paramount - "it is ... the result which is predominan!;
the principies are subordinate to the goal". It continued:

It is not every such principle which is in itself equitable, it may acquire this quality by refer-
ence to the equitableness ofthe solution ... the term "equitable principies" cannot be inter-
preted in the abstract, it refers back to the principies and rules which may be appropriate in
arder to achieve an equitable result.3 l

While this can hardly be attributable to any distinctly African contribution to the
work ofthe Court, it is noteworthy that, as Abi-Saab notes, it would be extremely dif-
ficult to imagine the Permanent Court of International Justice having rendered a

27 !bid.
28 ICJ Reports (1969), p. 3.
29 ICJ Reports (1974), p. 3, para. 79.
JO ICJ Reports (! 969), p. 48.
JI ICJ Reports (1982), p. 18, at para. 70.
 A/rica and the International Court ofJustice 361

judgment based on this kind ofmethodology. 32 While this case, and subsequent cases
in which equity was in issue, are not in substance of particular sjgnificance for the
relationship betweenAfrica and thé Court, it is noticeable that (as pointed out in sec-
tion 3 below) it illustrates significan! advances in the movement ofthe Court towards
being a World Court in the true sense ofthe tenn. Different ways ofreasoning, an eye
for the result ofthe case beyond merely the strict application ofposited law anda dis-
tinct perception of the judicial function in international relations had now become a
regular feature of the Court's work.
Also, Libya and Chad brought a territorial dispute to the Court concerning, in
particular, the so-called Aouzou strip situated in the Sahara.33 The mediatory role of
the Organisation of African Unity is noteworthy; it brought about the conclusion of
an agreement to negotiate to salve this long-standing dispute, and failing that, refer-
ral of the dispute to the Court. The Court, in a judgment which significantly affirm-
ed, clarified and developed principies of the law of treaties and sovereignty over ter-
ritory, found that the boundary between the two States had been defined in a treaty
of 1955 between France, of which Chad was then a colony, and the Kingdom of
Libya. This in effect mean! that the Aouzou strip belonged to Chad. But perhaps the
most significan! aspee! ofthis case was the follow-up to the Court's judgment. This
judgement was delivered in February 1994, and by the end of May that year, follow-
ing the establishment by the Security Council of the Aonzou Strip Observer Group,
ali Libyan troops which had been occupying the area had been withdrawn. There
have been few cases in which effect had been given to a judgment of the Court so
promptly.
In the Lockerbie cases, the Court was faced with an issue of central importance
to the management of global affairs, narnely the (existence of a hierarchical) rela-
tionship between itself and the Security Council, but it did not have to pronounce
directly on this matter thus far, even at the Preliminary Objections stage.34 The pre-
sent writer's views on the matter have been stated in the ruling on the indication of
provisional measures in 1992, and this is not the place to repeat them.35 At this time,
the importance of the case is that it symbolises again the full participation of an
African State in a matter of fundamental importance. The case raises important
questions regarding the rule of law, clearly of significance both within and without

32 Op. cit. supra n. 27. Far example, we may co1npare the treatment of equity in the Diversion of
water from the River Meuse case. There Judge Hudson's oft-cited dictum illustrated that the equi-
ty in issue thcre was clearly the basic idea of equity infra iegem (PCIJ Reports, Series A/B, No. 70,
pp. 73, 77), and not the kind ofpro-active use being made ofthe concept today. See, for example,
R. Higgins, Problems and Process: International Law and How We Use it (1994), Ch. 13.
33 JCJ Rep. (1994), p. 6; ICJYearbook, 1994-5, p. 218.
34 Questions ofInterpretation andApplication ofthe 1971 Montreal ConventionArisingfrom the

Aerial inciden! at Lockerbie, ICJ Reports (1998).

35 Questions ofInterpretation and Application ofthe 1971 Montreai Convention Arising ji-om the

Aerial Inciden! at Lockerbie, ICJ Reports (1992) pp. 3 and 114 (Libya v the United Kingdom and
the United States of America respectively), at pp. 78 and 183 respectively.
362 Liber Amicorum José María Ruda

the United Nations itself. That the Court has now come to occupy a position in which
the confidence of States from all parts ofthe world is real, as indicated by the initia-
tion of proceedings by an African state, especially a so-called pariah State, 36 shows
how far the rule of law, or more accurately, the view of States as to the role of the
Court in maintaining it, has come. And in the Bakassi Peninsula 37 case, now proceed-
ing to the merits stage, the same trend can be seen. Nigeria and Cameroon are befare
the Court dealing with a boundary dispute. A dispute between Namibia·· and
Botswana is also currently on the Court's docket.38 As far as participation befare the
Court is concerned, the involvement of Africa with the Court is now a norm.

4. The Judges

As was the case with other organs of the United Natíons, the composition of the
Bench of the International Court changed along with that of the international com-
munity. In the 1960s, mainly as a response to the South-West A/rica crisis discussed
earlier, seats became dedicated to African countries, initially two and later three, by
an interna] redistribution rather than an increase in the total number of judges on the
Bench.39 The significance ofthe South-West Africa saga carmot be over-estimated.
It is now proposed to examine briefly sorne contributions of African judges to the
work of the Court.
Judge Badawi of Egypt 40 was an early participan! in the work of the Court. His
contributions as the Egyptian delegate at the Washington Conference where the
Court's Statute was drafted in 1946 are well-known.41 In particular, his propasa! for
the adoption of a system which would allow States to contrae! out of a general sys-
tem of compulsory jurisdiction was quite novel, and indicates the fallacy in the often-
mentioned general perception that African States were traditionally opposed to the
idea ofjudicial settlement of disputes. The rejection of this proposal was nota reflec-
tion of any kind of African influence, as there were very few independent African
States in the world at that time.
In the l 960s, the presence of judges from sub-Saharan Africa became a perma-
nent feature of the Court's composition. It will be convenient for present purposes to
consider the contributions and perceptions of the judicial function of Judges Forster

36 Libya is actually on its own a good indicator of the confidence which African States have in
the Court, as evidenced in its participation in cases before the Court in the last two decades.
37 Case Concerning the Land and Maritime Boundary (Provisional Measures, ICJ Reports 1996,
p. 13; (Preliminary Objections, Judgment of 11 June 1998).
38 Kasikili/Sedudu !sland, still in the earliest stages.
39 Eyffinger, op. cit. supra n. 8, (at p. 252).
40 1946-1965, Vice Presiden! (1955-1958).
4l See S. Rosenne, The Law and Practice ofthe lnternational Court ofJustice (1985), p. 365.
 Africa and the Jnternational Court ofJustice 363

(Senegal),42 Onyeama (Nigeria)43 and Ignacio-Pinto (Dahomey, now Benin),44 who

together formed the core of African representation on the Court in the 1960s and
l 970s. Three cases which carne befare the Court in this period illustrated their com-
mon position on a number of issues. Firstly, in the Nuclear Tests cases, Judge Forster
dissented from the views of the majority of the Court. He strongly defended the
sovereignty of France to conduct the tests, and was not convinced that interim meas-
ures should have been indicated since he did not believe the Court had jurisdiction to
hear the merits of the case, a condition for the indication of such measures. 45
Similarly, Judge Onyeama, in the 1974 judgment in the same Nuclear Tests saga, was
concerned that the Court, in deciding that the requested intervention by Fiji no lon-
ger had any purpose since France had announced its intention to cease the tests in
question, was implying that Fiji may have been allowed to intervene when there was
no reciprocity in the acceptance of the Court's compulsory jurisdiction between Fiji
and France.46 Judge Ignacio-Pinto also carne down in favour of France's sovereign
rights to conduct tests on its own territory, a right ofwhich he felt that France should
not be deprived merely because of the expression of the will of Australia.47 In the
Fisheries Jurisdiction cases, both Judges Onyeama and Ignacio-Pinto did not believe
that the Court had kept within the bounds of what was requested of it by the parties
and that the Court was going beyond the bounds of the judicial function by
applying law which was still in the process of developing.48 In the Namibia advisory
opinion, Judge Onyeama's judicial conservatism was again manifested. He refused to
endorse the Court's categorical pronouncements on the illegality of South Africa's
continued presence in Namibia and opted far a more moderately worded opinion.49
Two comments can be made here. The first is that the views of these judges in this
case, as well as in other cases (notably the Fisheries Jurisdiction cases and the
Namibia Advisory Opinion), which ali indicated the outlook of these judges, show
that African judges were fully attuned to the importance of legal-technical conside-
rations, the kind of which African conceptions of dispute settlement have been
observed to eschew. The work of these judges pul paid to the view that there were
difficulties inherent in the notion of a true World Court. Clarence Wilfred Jenks'
conception of a common Iaw of mankind was vindicated here in this sense. Secondly,
and in a sense diametrically opposed to the latter while at the same time being the
other side of the same coin, the outlook of these judges showed clearly that they
stood up far the integrity of the Court by holding a clear view as to its role in inter-
national relations. The role they perceived of the Court would appear to be a very

42 1964-1982.
43 1967-1976.
44 1970-1979.
45 ICJ Reports (l 973), at pp. ll 1-114.
46 ICJ Reports, (1963), at pp. 536-557.
47 ICJ reports (1973), at p. 13 l.
4 8 ICJ Reports (1974), at pp. 171 (Onyeama) and 305 (Ignacio-Pinto).

49 ICJ Reports (197!), at p. 138.ff.

364 Liber Amicorum José María Ruda

lirnited one, and hence the paradox. But the point was that African judges here were
as rnuch a part of the Bench as judges frorn any other part of the world, and thus this
triurnvirate paved the way for the subsequent developrnent of the African
contribution to the Court.
In 1976 Judge Elias of Nigeria was elected to the Court, and becarne its first
African Presiden! in 1982. His term syrnbolised the corning into its own of the full-
fledged African contribution to the work of the Court. It has been written that his
election to the Presidency ofthe Court in 1982 was a 'truly historie rnoment for the
whole of Africa' .so It is perhaps no coincidence that it was during this period that the
first case between two African countries (Tunisia!Libya) was brought befare the
Court, not on any issue which indicated any peculiarities ofthe historical situation in
which Africa had found itself, but on rnaritirne delirnitation, a rnatter in which the
whole world had an interest. Also, the Nicaragua case was heard during this period
(at leas! all of the jurisdictional phase). On the Nicaragua case, Abi-Saab wrote that:

.. .the Court was fully aware ofthe great political risk it was taking by upholding the basic
principies of contemporary international law and the Charter in the way it did in its judg-
ment, and which it could not help doing as a court of law. It thus administered - at very
high cost - a glaring proof of its objectivity and independence. In consequence, even if the
immediate practica! effect of that judgment were to have been the political weakening of
the Court anda reduction ofits volume ofbusiness in the short run, it could not but increase
its credibility and consolidate its position in the long run.51

After this time, the number of cases initiated or otherwise involving African
States befare the Court rnultiplied dramatically.52
Judge El-Erian ofEgyptjoined the Court in 1979, and in the short period in which
he was a rnember of the Court, he again indicated the great advances rnade by
African judges to the Court. In his Separate Opinion in the Advisory Opinion on the
Interpretation ofthe 1951 Agreement between the WHO and Egypt,53 he criticised
what Lauterpacht had described as "the doctrine ofthe lirnitation ofthe judicial pro-
cess",54 according to which clear dividing Jines should be drawn between legal and
political questions, the latter not being the concem of the judicial process. He stres-
sed the prevalence ofthe rule oflaw in political affairs. Judge Mbaye ofSenegaljoin-
ed the Court in 1982, and Jike Judges Badawi and Elias befare hirn, became its Vice-
President in 1988. Judge Bedjaoui also joined in 1982, and was elected the

50 Eyffinger, op. cit. supra o. 8, (at p. 256).

51 Abi-Saab, op. cit. supra n. 14, at p. 6.
52 Frontier Dispute (supra n. 20), Guinea-Bissau v Senegal (ICJ Reports (1991), p. 54, Lockerbie
(supra n. 34), Libya v Chad (supra n. 32), Cameroon v Nigeria (supra n. 36), Namibia v Botswana
(supra n.37).
53 lCJ Reports (1980), p. 73, at pp. 164-165.
54 H. Lauterpacht, The Function ofLaw in the International Community (1933), Chapter l.
 A/rica and the lnternational Court oj'Justice 365

second African Presiden! in 1994. The foregoing indicates that by this stage, there
was no longer any distinction between African States and States from any other part
of the world in any meaningful sense.
The final stage in the contribution of Africanjudges to the Court is marked by the
contributions of the judges who joined the Court in the 1990s. Judge Ranjeva of
Madagascar joined in 1991, has played a par! in the development of a different con-
ception of the role of the international judge. In the Lockerbie55 case, the East
Timor56 case and the Arbitral Award (Guinea-Bissau v Senega/)57 case, he expressed
the opinion that the role ofthe judge was nota passive one, and that the proper exer-
cise of the judicial function could not ignore the results produced by a decision.
Judge Koroma of Sierra Leone, who joined the Court in 1994, has consistently
expressed bis conception ofthe role ofthe judge in international affairs as being one
where excessive formalism, without an eye for the social consequences of the deci-
sion and the context in which the decision would operate, has no place. He dissented
from the Court's decision that it had no jurisdiction in the Nuclear Tests case (New
Zealand v France 1995),58 and also from the majority opinion in the advisory opin-
ion on the Lega/ity ofthe Threat or Use ofNuclear Weapons.59 In the latter case in
particular, he laid great emphasis on the consequences ofthe use ofnuclear weapons,
and held that considerations of humanity could not allow the use of such weapons.
He was much more categorical than the majority opinion. At the sarne time, it can-
not be said that technical legal considerations are ignored or not given the ful! atten-
tion they require. On the contrary, the rule of law is to prevail always. For example,
he stated that:

The suggestion that it should be left to individual States to determine whether or not it may
be Jawful to have recourse to nuclear weapons is not only an option fraught with danger,
both for the States that may be directly involved in the conflict, and for those nations not
involved, but may also suggest that such an option is not legally reprehensible. (my emph-
asis).

It may legitimately be said that the present writer, who joined the Court in 1991,
can also be placed in this group, even ifthe eventual decisions ofthe other judges are
not always along the same lines. For example, I have stated that:

55 ICJ Reports (1992), e.g. at p. 76.

56 ICJ Reports (1995) e.g. at p. 133.
57 ICJ Reports (1991), e.g. at p. 122.
58 ICJ Reports (1995), pp. 79 jJ.
59 ICJ Reports (1996).
366 Liber Amicorum José María Ruda

Each case must be decided on its own merits. Situations are always changing. The world is
in a state of flux economically and politically. Intemational law has been enriched by its
dynamic development from this Court .. The world is constantly faced with new situations
from day to day, and it is imperative that the Court must always rise to the occasion and
meet the new demands and challenges of our time as they surface. 60

The International Court of Justice has clearly come to live up to its name, and the
history of African involvement in the work of the Court sketched here is proof of that
welcome fact.

60 ICJ Reports (1992), at p. 92.