SW Africa Case brief

SW Africa Case (ICJ 1966, p. 142)

• Ethiopia and Liberia alleged contraventions of the League of Nations mandate. The mandate gave country pwr to administer certain territory (now this is called the trusteeship system)
• Trust relationship: German west Africa—UK asked S. Africa to administer this area after WWI. They did a good job until Apartheid (post 1948).
• The idea is to advance a country twrd self govt.
• Holding: Liberia and Ethopia cannot be plaintiffs here b/c individ. countries can’t assert violations of the League—must be done collectively.
• Very positivist case—credibility of ICJ greatly diminished.
• First ct held they had standing; then held no legal right to requested outcome.
• Essence of the majority’s argument is that you must bring forth this issue to the League and not as an individual in court.
• Maybe at the back of the ct’s mind that since SA wldn’t abide by a decision, it just wldn’t make that decision!!
• ’s argument had been that notions of morality require that s report and that individual countries have a right under natural law.
• Jessup (dissent): Sees it as a common interest—notion from the Genocide Convention can be transplanted into this situation.
• N. 2, p. 147: Distinction btwn Jus Cogens and erga omnes. (same examples used for both):
  • Jus cogens—a norm that evolves—can’t be modified—no treaty violating this will stand. (There are certain fund. norms which will trump state acceptance)
  • Egra omnes—an obligationa duty (can be modified by treaties).
• Vienna Convention says that norm of a treaty (consensual) that violates jus cogens will be void. How do such jus cogens norms develop? When it is “accepted and recognized”—I can’t define it, but I will know it when I see it.
• Some people treat jus cogens, natural law, and fundamental norms as the same thing. (e.g., Kaufman in Filartiga)