Advisory Opinion on Namibia (1972)
Procedural History:
NATURE OF CASE: Advisory opinion as to legality of occupation.
FACT SUMMARY: south Africa (D) occupied Namibia under a claim of right to annex that territory, but in violation of a United Nations (U.N.) Security Council Mandate which, though later terminated due to South Africa’s breach, empowered the Security Council to enforce its terms.
Overview:
FACTS: South Africa (D) began occupation of Namibia under a claim of right to annex that territory and under a claim that the people of Namibia desired South African (D) rule. South Africa (D) was a Member State of the United Nations and was subject to a U.N. Mandate prohibiting Member States from taking physical control of other territories. The U.N. General Assembly adopted Resolution 2145 (XXI) terminating the Mandate for South Africa (D), and the Security Council adopted Resolution 276 (1970) declaring South Africa’s (D) continued presence in Namibia to be illegal and calling upon the other Member States to act accordingly. The International Court of justice was called upon to render an advisory opinion.
Rule:
mandates adopted by the UN are binding upon all member states, and violations or breaches result in a legal obligation on the part of the violater to rectify the violation and upon the other member states to recognize the conduct as a violation and refuse to aid in such violation.
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 violation?
Outcome:
HOLDING AND DECISION: Yes. Mandates adopted by the United Nations are binding upon all Member States, and violations or breaches result in a legal obligation on the part ,of the violator to rectify the violation and upon the other Member States to recognize the conduct as a violation and to refuse to aid in such violation. The Member States have assumed an obligation to keep intact and preserve the rights of other States and the people in them. When a party to the Mandate giving rise to this obligation fails to fulfill its own obligations under it, that party cannot be recognized as retaining the rights that it claims to derive from the relationship. The General Assembly found that South Africa (D) was in material breach of the Mandate because of deliberate and persistent violations of it by occupying Namibia. The Assembly has the right to terminate the Mandate with respect to a violating Member State, which was accomplished by resolution 2145 (XXI) in this case. The decisions and resolutions of the Security Council in enforcing such termination are binding upon all Member States, regardless of how they voted on the measure when adopted. South Africa (D) is thus subject to the Mandate, the resolution terminating it as to South Africa (D), and the enforcement procedures of the Security Council. South Africa’s (D) illegal action gives rise to an obligation to put the violative conduct to an end. Mandates adopted by the United Nations are binding upon all Member States and violations or breaches result in legal obligations on the part of the violator to rectify the violation, and upon the other Member States to recognize the conduct as a violation and to refuse to aid in such violation.
Analysis:
South Africa (D) did not restore independence to Namibia despite agreeing to do so with the United Nations The General Assembly adopted a number of resolutions imposing mandatory sanctions for enforcement South Africa [D) was "strongly condemned" for its actions.
Procedural History:
NATURE OF CASE: Advisory opinion as to legality of occupation.
FACT SUMMARY: south Africa (D) occupied Namibia under a claim of right to annex that territory, but in violation of a United Nations (U.N.) Security Council Mandate which, though later terminated due to South Africa’s breach, empowered the Security Council to enforce its terms.
Overview:
FACTS: South Africa (D) began occupation of Namibia under a claim of right to annex that territory and under a claim that the people of Namibia desired South African (D) rule. South Africa (D) was a Member State of the United Nations and was subject to a U.N. Mandate prohibiting Member States from taking physical control of other territories. The U.N. General Assembly adopted Resolution 2145 (XXI) terminating the Mandate for South Africa (D), and the Security Council adopted Resolution 276 (1970) declaring South Africa’s (D) continued presence in Namibia to be illegal and calling upon the other Member States to act accordingly. The International Court of justice was called upon to render an advisory opinion.
Rule:
mandates adopted by the UN are binding upon all member states, and violations or breaches result in a legal obligation on the part of the violater to rectify the violation and upon the other member states to recognize the conduct as a violation and refuse to aid in such violation.
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 violation?
Outcome:
HOLDING AND DECISION: Yes. Mandates adopted by the United Nations are binding upon all Member States, and violations or breaches result in a legal obligation on the part ,of the violator to rectify the violation and upon the other Member States to recognize the conduct as a violation and to refuse to aid in such violation. The Member States have assumed an obligation to keep intact and preserve the rights of other States and the people in them. When a party to the Mandate giving rise to this obligation fails to fulfill its own obligations under it, that party cannot be recognized as retaining the rights that it claims to derive from the relationship. The General Assembly found that South Africa (D) was in material breach of the Mandate because of deliberate and persistent violations of it by occupying Namibia. The Assembly has the right to terminate the Mandate with respect to a violating Member State, which was accomplished by resolution 2145 (XXI) in this case. The decisions and resolutions of the Security Council in enforcing such termination are binding upon all Member States, regardless of how they voted on the measure when adopted. South Africa (D) is thus subject to the Mandate, the resolution terminating it as to South Africa (D), and the enforcement procedures of the Security Council. South Africa’s (D) illegal action gives rise to an obligation to put the violative conduct to an end. Mandates adopted by the United Nations are binding upon all Member States and violations or breaches result in legal obligations on the part of the violator to rectify the violation, and upon the other Member States to recognize the conduct as a violation and to refuse to aid in such violation.
Analysis:
South Africa (D) did not restore independence to Namibia despite agreeing to do so with the United Nations The General Assembly adopted a number of resolutions imposing mandatory sanctions for enforcement South Africa [D) was "strongly condemned" for its actions.
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