¹ South West Africa became a German colony in 1883. It was renamed Namibia in April 1968 by United Nations General Assembly Resolution 2372 (XXII).

² The Namibian problem has been debated at every session of the General Assembly since 1946, and over eighty resolutions touching upon it have been adopted by the General Assembly and the Security Council. The most significant are referred to in the course of this article.

³ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16.

⁴ [1950] I.C.J. Rep. 4.

⁵ G.A. Res. 2145(XXI), October 27, 1966.

⁶ G.A. Res. 2248(S-V), May 19, 1967.

⁷ There have been many books and articles written on the Namibia question since 1945, and more since the Advisory Opinion of the Court in 1971. It is not intended to review in depth the history of the case here. For a more detailed history, see: Slonim, Solomon, South West Africa and the United Nations: An International Mandate in Dispute (Johns Hopkins University Press, 1973)Google Scholar; Dugard, John, The South West Africa/Namibia Dispute (University of California Press, 1973).Google Scholar

⁸ Charter of the United Nations, Article 77:

• 1.

  1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:

  • a.

    a. territories now held under mandate;

  • b.

    b. …

• 2.

  2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.

⁹ G.A. Res. 339(IV), December 6, 1949.

¹⁰ Article 22, paragraph 1, of the Covenant provided that the well-being and development of peoples of former colonies formed “a sacred trust of civilization” and that “securities for the performance of this trust” should be embodied in the Covenant. Paragraph 7 of Article 22 provided that, “In every case of mandate, the mandatory shall render to the Council an annual report in reference to the territory committed to its charge.” Paragraph 8 stated, “The degree of authority, control or administration to be exercised by the mandatory shall, if not previously agreed upon by Members of the League, be explicitly defined in each case by the Council.” The South West Africa Mandate, a Class C mandate, was confirmed by the League Council on December 17, 1920. Article 6 required the Mandatory to make to the Council of the League of Nations, “an annual report to the satisfaction of the council, containing full information with regard to the territory” and indicating the measures taken to carry out the obligations under the Mandate.

¹¹ International Status of South West Africa, Advisory Opinion, [1950] I.C.J. Rep. 128.

¹² Article 79 reads:

The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a member of the United Nations.

Article 85 reads:

The functions of the United Nations with regard to trusteeship agreements for all areas not designated strategic, including the approval of the terms of trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

¹³ [1950] I.G.J. Rep. 143.

¹⁴ Ibid., 137.

¹⁵ Ibid., 138.

¹⁶ G.A. Res. 449A(V), December 13, 1950.

¹⁷ G.A. Res. 749A(VIII), November 28, 1953.

¹⁸ [1955] I.C.J. Rep. 78.

¹⁹ [1956] I.C.J. Rep. 32.

²⁰ See the Separate Opinions of Judges Klaestad and Lauterpacht in the 1950 Opinion and of Judges Lauterpacht and Winiarski in the 1956 Opinion. The latter judge stated that the 1950 Opinion did not proceed on the basis that the United Nations was a successor in title to the League; the essential element was the maintenance of the status quo — that is, that the United Nations was only legally qualified to act with respect to the Mandate as had actually been the case with the League.

²¹ [1962] I.C.J. Rep. 318.

²² [1966] I.C.J. Rep. 3.

²³ See Slonim, , South West Africa and the United Nations 313–32 (1973).Google Scholar

²⁴ Both Resolutions referred in their preambular sections to General Assembly Resolution 2145(XXI). Resolution 245 condemned the refusal of South Africa to discontinue the trial of those detained and to repatriate them to Namibia. Resolution 246 censured South Africa for its “flagrant defiance” of Resolution 245.

²⁵ [1971] I.C.J. Rep. 58. This opinion was a majority opinion of 13 to 2, Judges Fitzmaurice of the United Kingdom and Gros of France, dissenting.

²⁶ Ibid. In this opinion of 11 to 4, Judges Petrén of Sweden and Onyeama of Nigeria joined the other two dissenters.

²⁷ See Slonim, op. cit. supra note 23, at 338–46.

²⁸ Ibid., 51.

²⁹ Ibid., 53–54.

³⁰ Ibid., 265.

³¹ Ibid., 46–48.

³² 11 Colum. J. of Transnat’l L. 201 (1972).

³³ Ibid., 207. Rovine continues to suggest that the Court would have been on better ground had it dealt squarely with the question of whether the League Council could have terminated the Mandate for gross violation of obligations thereunder. He considers that the League Council probably would have had the capacity to expel a mandatory that persisted in violating its obligations. However, it was regrettable that the Court chose the material breach theory, as this was an unsatisfactory legal explanation of the revocability power and deprived the Court of an opportunity to clarify in extended analysis the League’s powers over the system.

³⁴ Op. cit. supra note 23, at 339.

³⁵ Ibid., 340. See also Murphy, J. F., “Whither Now Namibia?,” 6 Cornell Int’l L.J. 1, 28–33 (1972)Google Scholar. Questioning the reasoning of the majority in recognizing the right of the General Assembly to revoke unilaterally the Mandate, the writer argues that what was needed was an advisory opinion of the Court on the compatibility of apartheid with South Africa’s obligations under the Mandate and on the authority of the United Nations to revoke unilaterally the Mandate if the Court had found that South Africa had violated its obligations.

³⁶ Security Council Resolutions 264 (1969) and 269 (1969).

³⁷ [1971] I.C.J. Rep. 23.

³⁸ See, for example,J. F. Murphy, “Whither Now Namibia?,” supra note 35; Grosskopf, E. M., “South West Africa and World Order,” 2 South Africa International 73 (October 1971)Google Scholar; Duggard, John, “Public International Law,” Annual Survey of South African Law 35 (1971).Google Scholar

³⁹ [1971] I.C.J. Rep. 283.

⁴⁰ Ibid., 291.

⁴¹ Security Council Resolution 253 (1968), May 29, 1968.

⁴² See, for example, Castaneda, , Legal Effects of United Nations Resolutions 71–72, 75 (Columbia University Press, 1969)Google Scholar. Note also the views of Higgins, Rosalyn, “The Advisory Opinion on Namibia: Which U.N. Resolutions are binding under Article 25 of the Charter?,” (1972) 21 Int’l and Comp. L.Q. 270 CrossRefGoogle Scholar. The author examines the issues whether Article 25 was intended to apply to decisions taken under Chapter VII after a determination had been made that a threat to the peace existed under Article 39. It is concluded that a reading of the Charter, the “travaux préparatoires,” and limited subsequent practice, support the conclusion that the Security Council Resolution 276 is binding under Article 25, having been validly passed under Article 24. Article 24, it is maintained, is not restricted to specific grants of authority contained in Chapters VI, VII, VIII, and XII.

⁴³ [1971] I.C.J. Rep. 53. Arthur J. Rovine, supra note 32, at 229, points out that, even accepting this argument, which is described as not wholly convincing, sufficient evidence existed for the Court to have concluded that the Security Council was acting in accordance with Chapter VII, Art. 41.

⁴⁴ [1971] I-C.J. Rep. 293. See also Slonim, op. cit. supra note 23, at 338–42.

⁴⁵ Dugard, John, “Namibia: The Court’s Opinion, South African Response, and Prospects for the Future,” 11 Col. J. of Transnat’l L. 14 (1972).Google Scholar

⁴⁶ It might indeed be uncertain from the wording of various Security Council resolutions themselves whether they were intended to be binding. Contrast, for example, the language of Resolution 276 (1971) with Resolution 253 (1968) concerning Southern Rhodesia, wherein the Security Council specifically stated that it was acting under Chapter VII of the Charter and thereafter decided upon action required of members in applying sanctions against Rhodesia. Language to this effect is absent from the Security Council resolutions concerning Namibia. But does it necessarily follow that, in the absence of a specific reference to Chapter VII and of the word “decides” in the operative part of its resolutions, the Security Council was not acting pursuant to Chapter VII?

⁴⁷ [1971] I.C.J. Rep. 50.

⁴⁸ Ibid., 51.

⁴⁹ See E. M. Grosskopf, supra note 38, at 80: “As regards the General Assembly, the Court has given no indication of the limits within which it considers ‘resolutions which make determinations or have operative design’ may be taken legitimately. And once the Charter is disregarded in ascertaining the extent of the Assembly’s powers, there do not appear to be any means of determining such limits.”

⁵⁰ United Nations General Assembly Doc. A/C.131/33, October 7, 1974.

⁵¹ Mr. Sean McBride, former Ministry of Foreign Affairs of Ireland, was appointed Commissioner for Namibia in December 1973.

⁵² General Assembly Resolution 3295 (XXIX) of December 13, 1974, adumbrates, perhaps, some of the complexities of this issue. This resolution, approving the report of the Council for Namibia, reiterates that the South West Africa People’s Organization “is the authentic representative of the Namibian people.” It would appear that, on the basis of Resolution 3295, while the Council has broad administrative authority by virtue of Resolution 2248(S-V), it has no representative functions.