Southwest africa case.pdf - Summaries of Judgments Advisory...

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SOU'lrH-WEST AFRICA CASES (PRELIMINARY OBJECTIONS) Judgment of 21 December 1962 The South West Africa ciases (Ethiopia v. South Africa; Liberia v. South Africa), which relate to the ,continued exist- ence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory thereunder, were instituted by Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960. The Government of South Africa !raised preliminiuy objections to the jurisdiction of the Court to hear the cases. By eight votes to seven the: Court found thiit it had jurisdic- tion to adjudicate upon the merits of the dispute. Judges Bustamante y River0 and Jessup and Judge ad hoc Sir Louis Mbanefo appended Separate Opinions. President Winiarski and Judge Basdevant appended Dis- senting Opinions; Judges Sir Percy Spender and Sir Gerald Fitzmaurice appended a Joint Dissenting Opinion; Judge Morelli and Judge ad hoc van Wyk appended Dissenting Opinions. Judge Spiropoulos appended a Declaration of his dissent. In its Judgment, the Courl: noted that to found the jurisdic- tion of the Court, the Applicants, having regarti to Article 80, paragraph 1, of the Charter of the United Nations, relied on Article 7 of the Mandate of 17 December 1920 for South West Africa and Article 37 of the Statute of .the Court. Before undertaking an e:xamination of the Preliminary Objections raised by South Africa, the COUI found it neces- sary to decide a preliminary question relating to tire existence of the dispute which is the subject of the Applications. On this point it found that it was not sufficient for one party to a contentious case to assert thrit a dispute existed with the other party. It must be shown that ithe claim of one party was posi- tively opposed by the other. Tested by this criterion, there could be no doubt about thc: existence of a dispute between the parties before the Court, since it was clearly constituted by their opposing attitudes relating to the performance of the obligations of the Mandate by the Respondent as Mandatory. The Court then briefly recalled the origin., nature and char- acteristics of the Mandates System established by the Cove- nant of the League of Nations. The essential principles of this system consisted chiefly in the recognition of certain rights of the peo les of the underdeveloped territories; the establish- P ment o a regime of tutelage for each of such peoples to be exercised by an advanced nation as a "Mandatory" "on behalf of the League of Nal:ionsW and the ~wognitio of "a sacred trust of civilisation" 'laid upon the League as an organ- ized international community and upon its Members. The rights of the Mandatory in relation to the m~andate territory and the inhabitants had their foundation in the ol~ligation of the Mandatory and were, so to speak, mere tools given to enable it to fulfil its obligations.
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