On 20th September 1972 Dr. Wolfgang G. Friedmann, professor of international law and director of international legal research at Columbia University, was robbed and stabbed to death three blocks from the Columbia campus. This sad news rapidly spread all over the world, and caused a heavy shock to those who had got to know this outstanding lawyer from his publications, and above all to those who, like the present writer, had the privilege to become his friend through personal contacts with his charming and inspiring personality.

The revocation in 1966 of South Africa's Mandate for South West Africa must be seen as the final denunciation by the international community of the trust it had once placed in South Africa. Resolution 2145 (XXI) was the culmination of 20 years of unsuccessful efforts to remind that country of its international obligations, flowing from Article 22 of the Covenant and from the Mandate Agreement, which had as their primary object “the well-being and development” of the indigenous population under the guarantee of international supervision.

The pronouncement of the International Court of Justice on Namibia lends itself to commentaries of many kinds. Far-reaching conclusions, even too far-reaching for many people, can be drawn from it. The accuracy of these conclusions, however, will depend primarily on the definition of the context within which the Court made its pronouncement. It is my firm conviction that this context is determined by the characteristics of the Mandate “Agreement”, characteristics which are absolutely unique and which can, therefore, in my opinion, be used as a basis for an argument per analogiam only with the greatest caution.

Among the many general problems of international law in issue in the Namibia Case, the question of the legal consequences of illegality under public international law is certainly one of the more important ones. Strictly speaking it was the central issue; indeed, the question put to the Court by the Security Council was to determine “the legal consequences for States of the continued presence of South Africa in Namibia”, and it referred to Security Council Resolution 276 (1970), which declared that continued presence to be illegal. Now both in the Advisory Opinion itself and in the separate and dissenting opinions, taken together, rather more attention is paid to other questions of law. in particular the question of the legality or illegality of the continued presence itself, than to the question of the permissible, or even mandatory, reaction to such illegality. Of course there is – as we will see later – a link between the two sets of problems; but. in the first instance, they could be treated separately. There are indeed – again, in the first instance – good reasons for such separate treatment. From any legal point of view it could hardly be irrelevant that a given factual situation is the result of conduct contrary to legal norms, and it would seem a priori reasonable that the law should attach some legal consequence in respect of the person whose conduct is involved. Nevertheless, the law relating to sanctions (in the largest sense of the word) is derivative law and, as such, cannot be unrelated to the peculiarities of the norms, the negation of which is “illegal”. But, on the other hand, the sanction is situated in the present, it reacts to the past, and prepares the future. In view of all this, it is hardly surprising that in this field of law relating to sanctions, there is even more uncertainty than in the field of the more direct (substantive) law relating to the rights and duties of States under a “model” of a peaceful international society!

In classic international law – as was to be expected – there is a close relatioship between substantive law and law relating to sanctions.

1. With the internationalization of the market international transactions also grow in number and importance. Here we should not only think of international sales agreements. Important as those may be there are also licence agreements, know-how agreements, agency-contracts, transport agreements, deliveries of installations and even of complete factories to developing countries, concession-agreements – all these play a role in international transactions. From all these contracts – the list is far from being complete – disputes can arise. How are these disputes to be resolved?

2. Court proceedings

Of course there is the national judge. Bringing the case in court is, however, in international matters even more than in the national field, not always looked upon favourably by business people. The reasons for this are manifold.