226
i n t e r nat i o na l l aw
In 1962 the ICJ heard the case brought by Ethiopia and Liberia, the
two African members of the League, that South Africa was in breach
of the terms of the mandate and had thus violated international law.
The Court initially affirmed that it had jurisdiction to hear the merits
of the dispute.
144
However, by the Second Phase of the case, the Court
(its composition having slightly altered in the meanwhile) decided that
Ethiopia and Liberia did not have any legal interest in the subject-matter
of the claim (the existence and supervision of the mandate over South
West Africa) and accordingly their contentions were rejected.
145
Having
thus declared on the lack of standing of the two African appellants, the
Court did not discuss any of the substantive questions which stood before
it.
This judgment aroused a great deal of feeling, particularly in the Third
World, and occasioned a shift in emphasis in dealing with the problem of
the territory in question.
146
The General Assembly resolved in October 1966 that since South Africa
had failed to fulfil its obligations, the mandate was therefore terminated.
South West Africa (or Namibia as it was to be called) was to come under
the direct responsibility of the United Nations.
147
Accordingly, a Council
was established to oversee the territory and a High Commissioner ap-
pointed.
148
The Security Council in a number of resolutions upheld the
action of the Assembly and called upon South Africa to withdraw its ad-
ministration from the territory. It also requested other states to refrain
from dealing with the South African government in so far as Namibia was
concerned.
149
The Security Council ultimately turned to the International Court and
requested an Advisory Opinion as to the
Legal Consequences for States of the
Continued Presence of South Africa in Namibia
.
150
The Court concluded
that South Africa’s presence in Namibia was indeed illegal in view of
the series of events culminating in the United Nations resolutions on the
grounds of a material breach of a treaty (the mandate agreement) by South
Africa, and further that ‘a binding determination made by a competent
organ of the United Nations to the effect that a situation is illegal cannot
remain without consequence’. South Africa was obligated to withdraw its
144
ICJ Reports, 1962, pp. 141 and 143.
145
ICJ Reports, 1966, p. 6; 37 ILR, p. 243.
146
See e.g. Dugard,
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