^{page 336 note 1} In this connection it is submitted, with respect, that the Court correctly decided in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950. p. 71. that “the Court's reply is only of an advisory nature; as such it has no binding force”. Vide also Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 84 and Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 168.

^{page 336 note 2} Vide Yearbook of the International Lav; Commission .1964, Vol. II, para. 25, p. 60 of Yearbook of the International Law Commission 1966, Vol. II, p. 236 (commentary on ..draft Article 38, paragraph 1); Gross, L. “Voting in the Security Council: Abstention in the Post 1965 Amendment Phase and its Impact on Article 25 of the Charter”, A.J.I.L., Vol. 62 (1968), p. 329; Bernhardt, R., Die Auslegung Volkerrechtlicher Vert rage (1963), p. 174.

^{page 337 note 1} Vide Article 65, paragraph 1, of the Statute of the Court read with Article $)6, paragraph 1, of the Charter.

^{page 337 note 3} For recognition of the dangers inherent in permitting such informal modifications or revisions, vide the debates in the United Nations Special Committee on Peacekeeping Operations.

^{page 339 note 1} Vide S.C., O.R., Fifth Year, No. 3, 461st Meeting. (lj January 1950)., p. 10 where the following was said: “... the USSR delegation wishes to announce that the Union of Soviet Socialist Republics will not recognize as legal any decision of the Security Council adopted with the participation of the representative of the Kuomintang group, and will not be guided by any such decisions”.

^{page 339 note 2} This proposition appears to have been accepted in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First and Second Phases, Advisory opinions, I.C.J. Reports 1950,p.65 and p. 221 respectively.

^{page 340 note 1} The expression “voluntary abstention” will be used in this sense throughout the present section.

^{page 341 note 1} Vide UN Doc. s/PV. 1550 (29 July 1970), p. 8l.

^{page 341 note 2} Ibid., pp. 76 and 77-80.

^{page 341 note 3} Vide UN Doc. s/PV. 1529 (30 January 1970), pp.83-85.

^{page 341 note 1} Compare in this regard, Article 18, paragraphs 2 and 3, which refer to the votes of members “present and voting”.

^{page 341 note 2} [Omitted.]

^{page 342 note 1} Stavropoulos, C.A., “The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, paragraph 3, of the Charter of the United Nations”. A.J.I.L., Vol. 6l (1967), p. 742 et scq.

^{page 342 note 2} Which Stavropoulos puts at the end of 1949 - ibid., p. 746.

^{page 343 note 1} “Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and its Impact on Article 25 of the Charter”, A.J.I.L., Vol. 62 (1968),p. 315.

^{page 344 note 1} Vide Letter dated 27 April 1966 from the Minister for Foreign Affairs of Portugal addressed to the Secretary-General, UN Doc. S/J2J1 (28 April 1966) in S.C., O.R., Twenty-first Year, Sup. for April, May and June 1966, pp. 59-62; Note Verbale dated 22 June 1966 from the Representative of South Africa to the Secretary-General, UN Doc. S/7392 (1 July 1966) in S.C., O.R., Twenty-first Year, Sup. for July, August and September 1966, pp. 16-17; Letter dated 26 September 1969 from the Minister for Foreign Affairs of South Africa addressed to the Secretary- General, UN Doc. S/9463, Annex 1 (3 October 1969) pp. 21-22.

^{page 345 note 1} Vide Lauterpacht, E “The Legal Effect of Illegal Acts of International Organisations”., Cambridge Essays in International Law; (1965), p. 88 Google Scholar.

^{page 345 note 2} Vide footnote 1 to para. 35, supra. [i.L.M. page 344.]

^{page 346 note 1} South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, P. 345.

^{page 346 note 2} Finland and the United States vide UN Doc. S/PV. 1497 (12 August 1969), pp. 12-15. Prance and the United Kingdom which also abstained did not vote in favour of G.A. resolution 2145 (XXI).

^{page 346 note 3} Vide UN Docs. S/PV. 1465 (20 March 1969),p. 71 (resolution 264 (1969)); S/FV. 1529 (30 January 1970),pp. 83-85 (resolution 276 (1970)); and S/PV. 1550 (29 July 1970),p. 76. France and the United Kingdom, which abstained on these three resolutions also abstained on G.A. resolution 2145 (XXI).

^{page 346 note 1} It is also to be observed that at least five of the States which voted affirmatively for resolutions 264 (I969), 269 (1969) and 276 (1970) were among those States which requested the convening of the Council in order to consider the question of “Namibia” (vide UN Docs. S/9090 (14 March 1969) and Add. 1-3; S/9359 (24 July 1969); S/9372 (1 August 1969); and S/9616 (26 January 1970) and Add. 1-5 (dated 27, 28 and 29 January 1970 respectively). As regards resolution 264 (1969)* the States concerned were Algeria, Nepal, Pakistan, Senegal and Zambia; as regards resolution 269 (1969), they were the same five States with the addition of Colombia; and as regards resolution 276 (1970), they were Burundi, Nepal, Sierra Leone, Syria and Zambia. As will appear from Chap. V, infra, if the 1962 Judgment were to be followed in the relevant respect, these States must be regarded as parties to a dispute with South Africa over South West Africa and, it is submitted, should therefore have abstained in the voting on the relevant resolutions. Had they done so, then together with the other States which abstained on these resolutions, there could at no time have been more than eight votes' cast in favour of the resolutions (vide note 1, supra) and, consequently, the resolutions could not have been validly adopted.

^{page 347 note 1} Rosenne, S The Law and Practice of the International Court (1965), Vol. II, pp. 698-699 Google Scholar.

^{page 348 note 1} South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 345. This question is dealt with further in Chapter IV, infra, q.v.

^{page 349 note 2} It is to be observed that in Chapter VI, Section D, paragraph 5, of the Dumbarton Oaks Proposals, the corresponding phrase was “should be invited”. (U.N.C.I.O. Doc. Vol. Ill, p. 11.) ‘This phrase, which at the San Francisco Conference was retained by Commission III, was changed to its present form in the Tentative Draft of the Coordination Committee and the Advisory Committee of Jurists (ibid., Vol. XV, p. 73), and is in line with amendments proposed by Canada and Venezuela in Committee IIl/l (ibid., Vol. XI, p. 781). The change indicates that the framers of the Charter intended that the issuing of an invitation by the Council was to be obligatory in case of Article 32.

^{page 349 note 1} Repertory of United Nations Practice (1955), Vol. II, p. 183.

^{page 349 note 2} Vide S.C., O.R., First Year, First Series, Sup. No. 2, p. 22.

^{page 349 note 3} S.C., O.R., Second Year, No. 6, 95th Meeting, 20 January 1947, p. 123.

^{page 350 note 1} Rosenne, S The Law and Practice of the International Court (1965), Vol. II, (1965), P. 708 Google Scholar.

^{page 350 note 2} Vide e.g. the Advisory Opinions referred to below.

^{page 350 note 3} Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion., I.C.J. Reports 1950, p. 72.

^{page 351 note 4} Ibid., p. 71.

^{page 351 note 5} Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 86.

^{page 351 note 6} Certain Expenses of the United Nations, Advisory Opinion, I.C.J. Reports 1962, p. 151.

^{page 351 note 1} South West Africa, Preliminary Objections, Judgment, f.C.J. Reports 1962, p. 519.

^{page 351 note 2} Vide paras. 37-38 infra. [I.L.M. page 356.]

^{page 352 note 1} Certain Expenses of the United Nations, Advisory Opinion, I.C.J. Reports I962T P. 155-

^{page 352 note 2} Vide, e.g., statement made by Kiss Smellie (Jamaica), G.A.O.R., Twentieth Session, Fourth Comm.,1570th Meeting, 26 November 1965, p. 328.

^{page 352 note 3} and there is no reason to assume that this policy was not pursued during the 1969 election of judges.

^{page 353 note 1} Morley, J.D., The International and Comparative Law Quarterly, Vol. 19, Part 2, p. 316.

^{page 353 note 2} Lauterpacht, H The Development of international Law by the International Court, revised edition (1958), p. 39 Google Scholar. Reference may also be made to the following quotation from the Lehigh Valley Railroad Company case, to be found in Simpson, J.L., and Pox, H. International Arbitration, Law and Practice (1959)* P” 90′ “In international arbitration i t is of equal importance that justice be done and that appearances show clearly to everybody’ s conviction that justice Was done.”

^{page 353 note *} [By Orders No. 1 and No. 2 of January 26, 1971, the Court unanimously decided not to accede to the objections raised with regard t o Judges Zafrulla Khan and Padill a Nervo. By Order No. 3 of January 26, 1971, the Court in a 10 t o 4 vote decided not to accede to the objection raised with regard t o Judge Morozov. In the Court's Order of January 29, 1971, South Africa ‘ s application to choose a judge ad. hoc was rejected (10 to 5).]

^{page 354 note 5} Status of Eastern Carelia, Advisory Opinion, 192?, P.C.I.J.,Series B, No. 5.

^{page 354 note 1} Ibid., p. 27.

^{page 354 note 2} Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950j P. 71.

^{page 354 note 3} Ibid., p. 72.

^{page 355 note 1} And a fortiori not, it is submitted, if the dispute is politically motivated. As C.F. Murphy (Jr.) has said: “When an international dispute grows out of deep political tensions, the controversy is in fact nonjusticiable, even where it is superficially resolvable in terms of legal rights and obligations”. Vide “The South-West Africa Judgment: A Study in Justiciability”, Duquesne University Law Review, Vol. 5 (1966-1967), p. 479.

^{page 355 note 3} Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J-., Series A, No. 2, p. 11.

^{page 355 note 4} Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925. P.C.I.J”., Series A, Ho.6, p. 14.

^{page 355 note 5} Ibid., p. 22.

^{page 356 note 1} Vide I.C.J. Pleadings, South West Africa, Vol. II, p. 175 et seq.

^{page 356 note 2} Vide para. 43 infra.

^{page 356 note 1} Vide para. 31 supra. [I.L.M. page 354.]

^{page 357 note 2} Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J. Series B, No. 5, P. 28

^{page 357 note 3} Rosenne, op. cit., pp. 700-701

^{page 357 note 4} The problem often arises when provision is made for an appeal to a higher tribunal on a question of law only.

^{page 357 note 5} These are also referred to as “basic facts”, vide Plunkett E.A. (Jr.) “UN Fact-Finding as a Means of Settling Disputes”, Virginia Journal of International Law, Vol. 9, No. 1 (1969), p. 156.

^{page 358 note 1} Article 54 of the Rules of Court and Article 49 of the Statute.

^{page 358 note 2} Vide Article 50 of the Statute of the Court.

^{page 358 note 1} The above mentioned provisions could possibly be invoked in terms of Article 68 of the Court's Statute and Article 82- of the Rules.

^{page 359 note 2} Vide para. 43 supra. [I.L.M. page 356.]

^{page 359 note 3} [Omitted.]

^{page 359 note 4} [Omitted.]

^{page 359 note 5} Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J., Series B, No. 5, p. 28.

^{page 361 note 1} Repertory of United Nations Practice, Vol.. II, p. 19.

^{page 361 note 2} [Omitted.]

^{page 362 note 3} Kelsen, The Law of the United Nations (1951), p. 283 Google Scholar.

^{page 363 note 1} [Omitted.]

^{page 363 note 2} Excluding non-members who participated in 'tne debace at their own request.

^{page 363 note 3} Though possibly six if Colombia be Included … .

^{page 363 note 4} A statement by the representative of Svria may possibly bo. so construed however, Doc, S/FV”, 1528 (29 January 1970).- PV21. There is also an opaque reference to the question by the representative of Sierra Leone,, ibid., p. J2.

^{page 364 note 5} Article 1, para. 1, of.the Charter read with Article 24; para: 2.

^{page 365 note 1} [Omitted.]

^{page 365 note 2} Vide S/PV. 1465 (20 March 1969), PP. 41-46; S/PV. 1492 (30 July 1969), PP. 6-13; and S/PV. 1528 (29 January 1970), pp. 8/1O-16.

^{page 365 note 1} It is to be observed that in Security Council resolution 264 (1969) operative paragraph 2, the Council “... Considers that the continued presence of South Africa in Namibia is illegal ...” This appears to be an expression of opinion as opposed to the definitive finding, introduced by the word declares, in operative- paragraph 2 of resolution 276 (1970).

^{page 366 note 1} Vide, e.g., General Assembly resolutions 2145 (XXI) operative paragraph 4; 2372 (XXII), operative paragraphs 7 and 9; and 2403 (XXIII), operative paragraph 3. In these paragraphs the Assembly purports to declare South Africa's presence in South West Africa illegal.

^{page 367 note 1} Unless perhaps States can be said to be bound to contribute to the expenses of the sub-committee. In this case, however, the ‘legal consequences for States” arise otherwise than from “the continued presence of South Africa in Namibia” (vide Council resolution 284 (1970)) and therefore do not appear to be immediately germane to the present question.

^{page 367 note 2} Vide Article 97 of the Charter.

^{page 367 note 1} Vide particularly the wording of Articles 36 and yj.

^{page 367 note 2} The question is further considered in paras. 54-58, infra. [I.L.M. pages 368-71.]

^{page 368 note 3} According to Judge Bustamante in his dissenting opinion in Certain Expenses of the United.Nations, Advisory Opinion, I.C.J. Reports 19&2, p.: 306: “The word recommendation implies suggestion, advice, advisability, usefulness, but.,not an order or an imperative mandate. Logically, suggestion or advice cannot normally be transformed into an obligation.”

^{page 368 note 4} Ibid., P. 250 (dissenting opinion of Judge Moreno Quintana); Kelsen, op. cit,, pp. I95-I96; Dahm, G., VBlkerrecht (1958), Vol. I, p. 26; Pushmin, E.A., “On the Powers Mediation Activities of the United Nations Security Council in Peaceful Settlement of International Disputes” (in Russian with English Summary), Sovetskii Ezhegodnik Mazhdunarodnogo Prava (Soviet Year-Book of International Law) (USSR). (1966-1967), p. 251; Corfu Channel, Preliminary Objection,Judgment,1948, I.C.J. Reports 1947-1948, pp. 31-32. (joint separate opinion :of Judges Basdevant, Alvarez, Winiarski, Zoricié, de Visscher, Badawi and Krylov) and pp. 33-34 (dissenting opinion of Judge Daxner).

^{page 368 note 2} Vide Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, P.C.I.J., Series B, No. 12, p. 27.

^{page 368 note 3} Unless paragraphs 2, 3 and 4 of the resolution, or some of them, are to be regarded as recommendations addressed to South Africa, which seems improbable when regard is had to the essential characteristics of a recommendation (vide para. 49, supra). [l.L.M. page 365.

^{page 369 note 1} vide para. 33, supra. [I.L.M. page 362.]

^{page 369 note 2} Kelsen, op. cit., p. 97.

^{page 369 note 3} Ibid., p. 95; Goodrich and Hambro, op. cit., p.’ 208; Certain Expenses of the United Nations, -Advisory Opinion, I.C.J. Reports 1962, p. 304 (dissenting opinion of Judge Bustamante); Shapira, A., “The Security Council Resolution of Noveaber 22, 1967 Its Legal Nature and Implications”, Israel- Law Review, Vol. 4, No. 2 (April 1969), PP. 229-241 at pp. 232-233.

^{page 369 note 4} Kelsen, for example, states that the word “decisions” in Article 25 is ambiguous and considers either interpretation possible (op. cit., pp. 293 and’ 444 et seq.).

^{page 369 note 1} Vide para. 5′2, supra. [i.L.M. page 367.]

^{page 370 note 2} U.N.C.I.O. Docs., Vol. XII, p. 66. Vide also ibid., pp. 48, l62, 380 and 507; ibid., Vol. XI, p. 84; Goodrich and Hambro, op. cit., pp. 208-209; Kelsen, op. cit., p. 444, footnote 3.

^{page 370 note 2} Vide Jiménez de Aréchaga, Voting and the Handling of Dispuxes in the Security Council, p. 111.

^{page 371 note 1} Repertory, of United Nations Practice, Vol. II (1955), pp. 237-239, paras. 46-47.

^{page 371 note 2} Vide para. 49, supra. [i.L.M. page 365.]

^{page 371 note 3} In Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion, I.C.J. Reports 1955 P. 88, Judge Klaestad in his separate opinion stated that “a duty of such a nature, however real and serious it may be, can hardly be considered as involving a true legal obligation”. Vide, however, the separate dpinion of Judge Lauterpacht (ibid., pp. 118-119).

^{page 373 note 1} These resolutions are considered in Chapter v, supra. [I.L.M. page 360.]

^{page 374 note 1} Judge Tanaka's teleological approach in 1966 may be said to achieve much the same result as an objective principle of international law. Vide the discussion thereof, Chap. IX, para. 63, infra. However, Judge Tanaka expressly stated that “we cannot recognize universal succession in the juridical sense in these cases” (p. 274) and based his conclusion that a succession of supervisory powers had taken place on an interpretation of the Mandate, albeit by a process of interpretation which was not concerned with ascertaining the intentions of the parties (pp. 276-278). For the reasons stated in Chap. II, supra, it is submitted that Judge Tanaka's approach should not be followed. Reference may also be made to judge Alvarez’ dissenting opinion in 1950 in which he concluded that the United Nations had succeeded “ipso facto” to the League of Nations (p. 182). Judge Alvarez failed, however, to formulate any legal principle or rule on which his conclusion could be based, nor did he cite any authority in support thereof.

^{page 374 note 2} South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 603-604.

^{page 374 note 3} Ambatielos, Preliminary Objection, I.C.J. Reports 1952, p. 54.

^{page 374 note 4} South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p 364,

^{page 374 note 5} I.C.J. Pleadings, South West Africa, Vol. I, p. 429.

^{page 375 note 1} Ibid., Vol. VIII, p. 1J2.

^{page 375 note 2} It was, however, mentioned in a footnote to Judge van Wyk's separate opinion, at p. 84, with reference to the ultimate attitude of the Applicants as quoted above.

^{page 375 note 2} Vide North Sea Continental Shelf, Judgment, I.C.J. Reports 19o9; p. 42: “Without attempting to enter into, still less pronounce upon any question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties ...”

^{page 376 note 1} Dugard, J “The Revocation of the Mandate for South West Africa”, A.J.I.L., Vol. 62 (1968), pp. 84-88 Google Scholar.

^{page 376 note 2} Ibid., p. 87.

^{page 376 note 3} [Omitted.]

^{page 376 note 4} [Omitted.].

^{page 376 note 5} Vide e.g., Rolin, Revue de Droit International et de Legislation Compareé, Vol. XLVII, p. 436 Google Scholar.

^{page 377 note 1} International Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 152.

^{page 378 note 1} Similarly, .it is submitted, these discussions clearly refute any suggestion that such an obligation arose out of a term to be implied in the Mandate Declaration … . In this regard it must be noted that 18 of the 24 States which expressed the view during 19^7 to 1949 that the United Nations did not succeed to the supervisory functions of the League in respect of mandates, had been founder Members of the League of Nations, and 17 had been Members at the time of its dissolution.

^{page 378 note 2} [Omitted.]

^{page 378 note 3} Vide North Sea Continental Shelf, Judgment, I.C.J. Reports 1969 at pp. 25-26…

^{page 379 note 2} Chap. III , para. 2, supra. [i.L.M. page 337.]

^{page 379 note 3} Vide Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J Reports 1962, p. 184. (Separate opinion of Judge Spender.)

^{page 380 note 2} Vide in this connection Ross, A., Constitution of the United Nations, (1950), pp. 59-60; Goodrich, L.M., and Hambro, E., Charter of the United Nations (2nd ed.), p. 25; Verdross, A., Vttlkerrecht (5th ed.), p. 520.

^{page 380 note 1} Vide Chap. VI, supra. [i.L.M. page 372.]

^{page 380 note 2} International Status of South VJest Africa, Advisory. Opinion, I.C.J, Reports 1950, p. 137.

^{page 380 note 3} The conclusions m regard to the powers conferred in Article 10 will apply equally to those conferred in Article 11, paragraph 2, and in Article 14.

^{page 381 note 4} Ross, op. cit., p. ol.

^{page 381 note 5} Vide Chap. V, para. 52, supra. [I.L.M. page 367.]

^{page 381 note 1} Vide U.N.C.I.O. Docs., Vols. Ill, VIII (pp.195 et seq.) and IX.

^{page 381 note 2} U.N.C.I.O. Docs. Vol. VIII, p. 208. (Statement of the Australian representative at the fourth meeting of Commission II.)

^{page 382 note 2} Vide Chap. V, para. 52, supra. [I.L.M. page 367.]

^{page 382 note 1} Unless the “decision” may be regarded as .in the nature of a recommendation to States, including South Africa, which seems, however, to be impossible since it is addressed to nobody and by its nature postulates no choice of action.

^{page 388 note 1} I.C.J. Pleadings, South West Africa, Vol. II (Counter-Memorial) pp. 289-310.

^{page 388 note 2} [Omitted.]

^{page 388 note 3} I.C.J. Pleadings, South West Africa, Vol. II (Counter-Memorial), para. 1, p. 289, and para. 50, pp. 364-365. There are also a number of islands off the coast of South West Africa which are part of the Republic of South Africa.

^{page 388 note 4} I.C.J. Pleadings, South West Africa, Vol. II (Counter-Memorial), P. 293.

^{page 389 note 2} Republic of South Africa, Department of Statistics.

^{page 390 note 1} United Nations Statistical Yearbook 1969 PP. 557-558. Every year covers the period of twelve months commencing 1 July.

^{page 390 note 2} Data not strictly comparable with those for subsequent years.

^{page 391 note 1} Republic of South Africa, Department of Statistics.

^{page 393 note 43} Voting Procedure on Questions relating to the Reports and petitions concerning the Territory of South West Africa Advisory Opinion, I . C . J . Reports 1955, P. 67, at p. 75.

^{page 394 note 44} International Status of South West Africa, Advisory Opinion, I.C.J. Reports~7 1950/ p. 12b, at p. 128; and Voting Procedure on Questions relating to the Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion, I.C.J. Reports 1955, P. 67, at p. 77.

^{page 395 note 52} Articles 55 and 73 of the United Nations Charter; Article 22 of the Covenant of the League of Nations (“well-being and development”), Article 2 of the Mandate contained in the Declaration of the Council of the League of Nations of 17 December 1920 (“material and moral wellbeing“). For the purposes of Article 55 of the United Nations Charter, the term “well-being” embraces not merely physical well-being, but includes economic, social, cultural, civil and political conditions of well-being or advancement; see inter alia, General Assembly resolution 2200A (XXI).

^{page 395 note 53} Article 2 of the Mandate, 17 December 1920.

^{page 395 note 54} Articles 1 (2), 55 and 73 of the United Nations Charter.

^{page 395 note 55} Article 73 of the United Nations Charter.

^{page 395 note 56} Ibid.

^{page 395 note 57} Ibid.

^{page 396 note 58} As, for example, the South African policy of “apartheid” applied in defiance of the determination by the Security Council and the General Assembly that this policy violates the United Nations Charter (and is abhorrent to the conscience of mankind); see,inter alia, Security Council resolutions 181 (1963), 182 (1963), 190(1964) 191 (1964), and 282 (1970), and General Assembly resolutions 1761 (XVII), 2054 (XX), 2144 (XXI), 2202 (XXI), 2307 (XXII), 2396 (XXIII) and 2506 (XXIV).

^{page 396 note 59} Vienna Convention on the Law of Treaties, Article 53 and 64; Document A/CONF.39/27, 23 May I969, and corrigendum 1.

^{page 396 note 60} South Africa's former authority to act on behalf of the international community as Mandatory Power at no time conferred sovereignty or permanent rights over the territory (see paragraph 18 above), which legally, therefore, remains entirely outside, and independent of South African jurisdiction and sovereignty.

^{page 397 note 61} General Assembly resolutions 1899 (XVIII), paragraph 3, 2074 (XX), paragraph 4, 2145 (XXI), 6th preambular paragraph, 2324 (XXII), paragraph 1, 2325 (XXIII), paragraph 3, 2372 (XXII), paragraphs 6 and 7, 2498 (XXIV), paragraph 2, 2517 (XXIV), paragraph 3 and 2547 (XXIV), Part A, paragraph 4; see also Security Council resolutions 245 (1968), paragraph 1, 246 (1968), paragraph 1, 264 (1969), paragraph 6, 269 (1969), paragraph 2, and 276 (1970), paragraph 1.

^{page 397 note 62} Articles 1 (2), 1 (3), 55 and 73 of the United Nations Charter.

^{page 397 note 63} Articles 1 (2), and 55 of the United Nations Charter.

^{page 397 note 64} Security Council resolutions 246 (1968), 3rd preambular paragraph, 264 (1969) 4 th preambular paragraph, 276 (1970), 1st preambular paragraph, 283 ( 1970), 1st preambular paragraph; and General Assembly resolutions 1899 (XVIII), paragraph 2, 2074 (XX), paragraph 3, 2145 (XXI), 1st preambular paragraph, and paragraph 1, 2248 (S-V), I, 1st preambular paragraph, 2325 (XXII), 2nd preambular paragraph, 2372 (XXII), paragraph 5, 2403 (XXIII), paragraph 1, 2498 (XXIV), paragraph 1, and 2517 (XXIV), paragraph 1.

^{page 397 note 65} General Assembly resolutions 1514 (XV), paragraph 1, and 2625 (XXV), Annex, 5th Principle, 2nd paragraph.

^{page 398 note 66} General Assembly resolution 2625 (XXV), Annex,5th Principle, 6th paragraph; ”... such separate and distinct status under the Charter shall exist until the people of the colony or non-self-governing territory have exercised their right of self-determination in accordance with the Charter ... “, ibid.

^{page 398 note 67} General Assembly resolution 1514 (XV),

^{page 398 note 68} E.g.,General Assembly resolutions 1654 (XVI), 1810 (XVII), 1956 (XVIII), 2105 (xx), 2131 (xx), 2189 (xxi), 2326 (XXII), 2465 (XXIII), 2548 (XXIV) and 2625 (XXV).

^{page 398 note 69} General Assembly resolution 2625 (XXV). In formulating the international covenants on human rights pursuant to Articles 1, 13 (1(b)), 55 and 56 of 'the United Nations Charter, the General Assembly also recognized -the right of peoples and nations to self-determination as a human right, possessed, inter alia, by the peoples of non-selfgoverning territories; see General Assembly resolutions 421.D.(V), 545 (VI) and 2200A (XXI) and Annex.

^{page 398 note 70} See resolutions cited in footnote 64, supra. [i.L.M. page 3 97.]

^{page 399 note 71} General Assembly resolution 2625 (XXV), Annex, pth Principle, 1st paragraph, re-affirming and elaborating operative paragraph 2 of the Declaration incorporated in General Assembly resolution 1514 (XV); see also, inter alia, General Assembly resolutions cited in footnote 68 above. [I.L.M. page 3 98.]

^{page 399 note 72} [Omitted.]

^{page 399 note 73} “ The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people ... ” General Assembly resolution 2625 (XXV), Annex, 5th Principle, 4th paragraph; these modes of implementing self-determination correspond closely with the modes by which a non-self-governing territory may reach a “full measure of self-government” for the purposes of Chapter XI of the United Ijauions Charter: viz., General Assembly resolution 154l (XV), Annex, Principle VI, which reads as follows? “A non-self-governing Territory can be said to have reached a full measure of self-government by: (a) Emergence as a sovereign independent State; (b) Pree association with an independent State; or (c) Integration with an independent State.”

^{page 399 note 74} See, by analogy, “Factors indicative of the attainment of independence”, approved by General Assembly resolution 7^2 (VIII), and General Assembly resolution 15^1 (XV), Annex, Principle VII and Principle IX.

^{page 400 note 75} South West Africa Affairs Amendment Act, Mo. 23 of 1949, sees. 26-53; South West Africa Constitution Act, No. 59 of 1946, sec. 12; Electoral Consolidation Act, No. 46 of 1946, sec. 3, and South African Citizenship Act, No. 44 of 1949, sees. 2-7.

^{page 400 note 76} E.g.,laws or institutions which impose or sanction racial discrimination; including laws which are directed at “non-Whites” only, e.g., influx control laws, native administration laws, laws relating to the area north of the “Police Zone”, native location regulations, and legislation relating exclusively to “Coloureds“; also discriminatory provisions contained in legislation relating to identity documents, labour, social welfare, education, land and mining,etc.; see also, inter alia, documents E/CN.4/949/Add.1, November 1967; A/6700/Rev.1, 1967; A/7088, 1967; A/7200/Rev. 1, 1968; A/7338 and Corr. 1, 1968; A/7623/Add.2, 1969; A/7624/Rev.1, I969; and A/8024, 1970.

^{page 400 note 77} E.g., Territorial Legislative Assembly, (see South VJest Africa Constitution Act, No. 39 of I968, as amended, sees. 11, 21-29, 31A); Legislative Councils and Executive Councils for separate “native nations” (see Development of Self-Government for Native Nations of South West Africa Act, No. 54 of 1968, sees. 3-6, 9-12); tribal, community and regional “authorities” for “less advanced native nations” (see id., sees. 7, 8, 12); “Elected Coloured Council” (see “Establishment of an Elected Coloured Council for South West Africa” Ordinance, No. 29 of 1966,’ and South VJest Africa Constitution Act, No. 39 of 1968, sec. 22 (1) (v), supplemented by South West Africa Affairs Act. No. 25 of 1969, sec. 14(d); Kaptein, Kapteinsraad, and Volksraad of the Rehoboth Gebiet (“Rehoboth Gcbict Affairs” Ordinance, No. 20 of 1961, and South West Africa Constitution Act, No. 39 of I968, sec. 22 (1) (v), supplemented by South VJest Africa Affairs Act, No. 25 of 1969, sec. 14(d); and see also S.V. Bock, I968 (2) S.A. 658 (A.D.)). and UN Docs. A/7200/Rev.l; A/7358 and Corr. 1; A/7623/Add. 2; A/7624/Rev. 1; and A/8024.

^{page 400 note 78} Self-determination” pursuant to Articles 1 (2) and 55 of the United Nations Charter; “Full measure of self-government” pursuant to Article 73 of the United Nations Charter.

^{page 400 note 79} General Assembly resolution 1541 (XV), Annex, Principle IX.

^{page 401 note 80} South West. Africa Constitution Act, No. 39 of 1968, sec. 11; Union Proclamation No. 103 of 1939; Electoral Consolidation Act, No. 46 of 1946, sec. 3; South West Africa Affairs Amendment Act, No. 23 of 1949, sec.34; South West Africa Constitution Act, No. 39, sec. 12 (l).

^{page 401 note 81} E.g., General Assembly resolutions 570.A. (VI), paragraph 3; 1899 (XVIII), 11th preambular paragraph and paragraph 4; 2074 (XX), paragraphs 5 and 6; and 2145 (XXI), paragraph 7. ft?

^{page 401 note 82} General Assembly resolution 65 (l), of 14 December 1946.

^{page 401 note 83} Memorandum submitted on 17 October 1946 by the South African Legation in Washington to the Secretary-General of the United Nations, and statement by the Prime Minister of the Union of South Africa made to the Fourth Committee of the General Assembly on 4 November 1946; cited in International Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 128, at p. 135.

^{page 401 note 84} Development of Self-Government for Native Nations in South West Africa Act, No. 54 of 1968.

^{page 401 note 85} See, inter alia, “Report of the Commission of Enquiry into South West Africa Affairs I962-I963”, published by the Government of the Republic of South Africa (R.P. No. 12/1964).

^{page 401 note 86} General Assembly resolution 2625 (XXV), Annex, 5th. Principle, 8th paragraph.

^{page 402 note 87} General Assembly resolution 2625 (XXV), Annex, 15th preambular paragraph.

^{page 402 note 88} Security Council resolution 264 (1969), paragraph 4.

^{page 402 note 89} see … . Study of “Apartheid” and racial discrimination in Southern Africa, United Nations Commission on Human Rights, Doc. L/CN.4/949/Add.1, November I967.

^{page 402 note 90} Articles 1 (3) and 55 (c) of the United Nations Charter; see also, inter alia, General Assembly resolutions 217.A (III), 1904 (XVIII), 2106.A.(XX), and resolutions of the Security Council .and the General Assembly cited in footnote 58 above. [I.L.M. page 396.]

^{page 402 note 91} General Assembly resolutions 1314 (XIII), 1515 (XV), 1803 (XVII), 2158 (XXI), 2200.A. (XXI) and 2386 (XXIII).

^{page 403 note 150} Document s/8355 of 24 January 1968: Request by 53 member States for an urgent meeting of the Security Council following the decision of the South African Government to resume the illegal trial of 35 Namibians under arbitrary laws illegally extended to Namibia in defiance of General Assembly resolutions; see also Security Council resolution 245 (I968).

^{page 403 note 151} Security Council resolutions 245(1968), 246 (1968), 264 (I969), 269 (1969), 276 (1970), 283 (1970) and 284 (1970).

^{page 403 note 152} The detailed provisions of the Security Council resolutions concerning Namibia are examined elsewhere in this statement, see’ paragraphs 86-89, 107, 117-119, 127 and 128-133.

^{page 403 note 153} security Council resolutions 246 (1968), 269 (1969), 276 (1970) and 283 (1970).

^{page 404 note 154} Security Council resolutions 264 (1969), paragraph 2; 276 (1970), paragraph 2; and 283 (1970), second preambular paragraph.

^{page 404 note 155} Security Council resolutions246 (1968), paragraph 3; 269 (1969), pa; graphs 7 and 8; 276 (1970), paragraph 5; and,283 (1970), paragraphs 1-8, 11 and 13.

^{page 404 note 156} ibid.

^{page 404 note 157} Security Council resolutions 246 (I968), seventh preambular paragraph: 264 (I969), paragraph 2; 269 (1969)* paragraph 3; and 276 (1970), fourth preambular paragraph.

^{page 404 note 158} General Assembly resolutions 1899 (XVIII), paragraph 6; 2372 (XXII), paragraph 11; and 2517 (XXIV), third preambular paragraph.

^{page 404 note 159} Security Council resolution 276 (1970), paragraph 3.

^{page 405 note 160} The records of the San Francisco Conference show that Article 25 of the Charter of the United Nations applies to all decisions of the Security Council. “The obligation of the Members to carry out the decisions of the Security Council applies equally to decisions made under Article 24 and to decisions made under the grant of specific powers“; see statement by the Secretary-General, Security Council, Second Year, No. 3, 91st meeting, pp. 44-45 (with reference to the obligations resulting from the acceptance by the Security Council of the responsibility for ensuring the integrity and independence of the Free Territory of Trieste, see Security Council, Second Year, 91st meeting, p. 60).

^{page 405 note 161} The Security Council declared that “the defiant attitude of the Government of South Africa towards the Council's decisions undermines the authority of the United Nations”, see Security Council resolution 276 (1970), paragraph 3, and also noted “with great concern the continued flagrant refusal of the Government of South Africa to comply with the decisions of the Security Council demanding the immediate withdrawal of South Africa from the territory”, see Security Council resolution 283 (1970), fourth preambular paragraph; see also letter to the President of the Security Council from the representatives of 49 States (s/9372 and Adds. 1 and 2), referring, inter alia, to the failure of South Africa to comply with Security Council resolutions 245 (1968), 246 (1968) and 264 (I969) in violation of its obligations under Article 25 of the United Nations Charter; see also references made by members of the Security Council to the violation by South Africa of its obligations under Article 25 of the Charter (s/PV.1497, p. 7; 2 IT. 1528, p. 46; o/pV.1528, pp. 63-65; S/PV.1528, pp. 8-10, 12; S/PV.1529, PP. 11, 38).

^{page 405 note 162} See footnote 155 above. [i.L.M. page 404.]

^{page 405 note 163} security Council resolution 269 (1969), third preambular paragraph.

^{page 406 note 165} [omitted.]

^{page 406 note 173} Security Council resolutions 264 (1969), paragraph 3, and 269 (1969), paragraph 5, and 276. (1970), third preambular paragraph. ‘ General Assembly resolutions 2J25 (XXIl), paragraph 5 and 2372 (XXII), ‘paragraph 12.

^{page 407 note 174} Security Council resolution 276 (1970), para. 2.

^{page 407 note 175} Security Council resolution 245 (1968), 1st preambular paragraph.

^{page 407 note 176} Security Council resolution 264 (1969), para. 1.

^{page 407 note 177} Security Council resolutions246 (1968), 2nd preambular paragraph, 264 (19S9), 2nd preambular paragraph, 276 (1970), 2nd preambular paragraph, and 285 (1970), 2nd preambular paragraph.

^{page 408 note 178} General Assembly resolution 2248 (S-V); the Council was renamed by General Assembly resolution 2372 (XXIl), para. 3”

^{page 408 note 179} General Assembly resolution 2248 (S-V), Part II, para. 2.

^{page 408 note 180} Ibid., Part IV, para. J>.

^{page 408 note 181} In expressing its concern regarding the continued refusal of the Government of South Africa to comply with its obligations to the United Nations, the General Assembly observed, inter alia, that this was “making it impossible for the United Nations Council for South West Africa to perform effectively the functions that were entrusted to it by the General Assembly”, and constituted a “flagrant defiance of the authority of the United Nations”, see General Assembly resolution 2372 (XXIl), 5th preambular paragraph.

^{page 408 note 182} General Assembly resolutions 2325 (XXIl), para. 2, 2403 (XXIIl), para. 6, and 2517 (XXIV), para. 6.

^{page 409 note 183} Security Council resolution 283 (1970), para. 1.

^{page 409 note 184} Ibid., para. 2.

^{page 409 note 185} Ibid., para. 3.

^{page 410 note 186} Cf. Vienna Convention on the Law of Treaties, Doc. A/G0NF.39/27, 23 May 1969, and’ Corrigendum 1, Article 62.

^{page 410 note 187} Ibid., Articles 53 and 64.

^{page 410 note 188} Security Council resolution 269 (1969), para. 8.

^{page 410 note 189} Infra, see paras. 145-147. [i.L.M. pages 414-415.]

^{page 410 note 190} E.g., tax payments made to the illegal régime would not constitute a legal basis for relief under double taxation agreements.

^{page 411 note 191} Security Council resolution 283 (1970), para. 8.

^{page 411 note 192} Ibid., para. 9.

^{page 411 note 193} Security Council resolution 269 (1969), Para. 7.

^{page 411 note 194} Security Council resolution 276 (1970), para. 5.

^{page 411 note 195} Security Council resolution 283 (1970), para. 1.

^{page 411 note 196} See footnotes 193 and 194 above.

^{page 411 note 197} Security Council resolution 283 (1970), para. 4.

^{page 412 note 198} Ibid., para. 6

^{page 412 note 199} Security Council resolution 283 (1970), para. 5.

^{page 412 note 200} Ibid., para. 7.

^{page 412 note 201} Ibid., para. 11.

^{page 413 note 202} Security Council resolutions 245 (1968), 246 (1968), 264 (1969), 269 (1969), 276 (1970) and 283 (1970); General Assembly resolutions 2145 (XXI), 2248 (S-V), et seq.

^{page 413 note 203} See also para. 97 above. [i.L.M. page 405.]

^{page 413 note 204} See para. 132 above. [I. L. M. page 412 .]

^{page 414 note 205} In this context, legislative acts are defined to include Acts of the South African Parliament purporting to apply to Namibia exclusively, or to South Africa and Namibia (in the latter case only the purported extension to Namibia is included), sub-legislation, Proclamations, Ordinances of the Territorial Legislative Assembly, local sub-legislation and proclamations, and amendments to such enactments. A list giving examples of Acts of the South African Parliament purporting to apply to Namibia, and enacted, or purportedly extended to Namibia after October 1966, is attached to this statement as Annex B.

^{page 415 note 206} General Assembly resolution 2248 (S-V), Part II, para. 1 (b).

^{page 415 note 207} Cf. Report of the United Nations, Council for Namibia, General Assembly Official Reoords, 25th Session, Supplement No. 24, A/8024, para. 97, pp. 26-27.

^{page 415 note 208} General Assembly resolution 2248 (S-V), Part II, paragraph 1 ‘(b).

^{page 415 note 209} Security Council resolution 276 (1970), operative para. 2.