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Published online by Cambridge University Press: 09 March 2016
A first reading of the majority opinion in the South West Africa Cases, Second Phase, may leave the Common Law reader with the feeling of having waded through the marshes of a pre-Judicature Act search for a form of action in which to frame this case; the plaintiff having failed to find the proper writ, the defendant's demurrer is thereby upheld. The extremely technical, indeed artificial, nature of the International Court of Justice's judgment of 1966 has already stirred controversy, but one suspects that the heat of debate will cool rapidly out of sheer frustration with this judgment. Many writers will assume the attitude of Judge Wellington Koo who said in his dissenting opinion that “There is a Chinese proverb put in the form of a question: Why write a long and big essay on such a small subject?” In labouring to bring forth its largest judgment yet (500 pages), the International Court of Justice has engaged in what Judge Jessup, in his excellent dissenting opinion, called a “procedure of utter futility.”
1 [1966] I.C.J. Rep. 6 (Judgment of July 18, 1966).
2 See, for example, Green, L.C., “South West Africa and the World Court,” (1966–7) 22 Int’l. J. 39 Google Scholar; Gross, E.A., “The South West Africa Cases: What Happened?,” (1966) 45 For. Aff. 36 Google Scholar; Verjijl, J.H.W., “The South West Africa Cases (Second Phase),” (1966), 3 Int’l. Relns 87 Google Scholar; Dugard, C.J.R., “The South West Africa Gases, Second Phase, 1966,” (1966) 83 S. Af. L. Jo. 429 Google Scholar; Manning, C.A.W., “The South West Africa Cases, A Personal Analysis,” (1966) 3 Int’l. Reins 98 Google Scholar. The latter article approves the Court’s decision while the former three oppose it; the remaining article is neutral and merely explanatory.
3 Supra note 1, at 220.
4 Ibid., 382.
5 Rosenne, S., “The Court and the Judicial Process,” (1965) 19 Int’l Organ. 5l8, 530.Google Scholar
6 Supra note 1, at 443 (Dissenting Opinion of Judge Padilla Nervo). The text of Article 55 (2) is as follows: “In the event of an equality of votes, the President or the Judge who acts in his place shall have a casting vote.”
7 Ibid., 51.
8 Covenant of the League of Nations, Article 22.
9 See supra note 1, at 356 et seq. where Judge Jessup gives an exhaustive analysis of this aspect of the matter.
10 The text of Article 7 (2) is as follows: “The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of The League of Nations.”
11 I.C.J. Pleadings, South West Africa Cases, Preliminary Objections, Vol. I, 37.
12 On March 23, 1967, South Africa presented its first report on South West Africa to The United Nations. See The Globe and Mail, March 25, 1967.
13 International Status of South-West Africa Case, [1950] I.C.J. Rep. 128.
14 South-West Africa—Voting Procedure, [1955] I.C.J. Rep. 67.
15 Admissibility of Hearings of Petitioners by the Committee for South West Africa, [1956] I.C.J. Rep. 23.
16 Resolution G/A 449 A (V).
17 See supra note 2, Gross, at 39.
l8 South West Africa Cases, Preliminary Objections, [1962] I.C.J. Rep. 319.
19 Supra note 1, at 325.
20 See supra note 2, Green, at 59, on this point.
21 Supra note 1, at 18. Italics added.
22 [1963] I.C.J. Rep. 15. For an analysis of Judge Fitzmaurice’s Separate Opinion, see Flemming, B., “Case concerning the Northern Cameroons,” (1964) 2 Canadian Yearbook of International Law 214, 328.Google Scholar
23 Supra note 1, at 19.
24 Ibid., 21.
25 Ibid., 28–29.
26 [1949] I.C J. Rep. 174.
27 Supra note 1, at 30.
28 Ibid., 32.
29 Ibid., 33.
30 Ibid., 34.
31 Ibid., 36.
32 Ibid., 47.
33 Ibid.
34 Ibid., 51
35 Space does not allow a complete analysis of the separate opinions, particularly that of Judge Van Wyk’s which runs to 153 pages. However, it should be noted that Van Wyk admits a conflict in reasoning between the 1963 and 1966 Judgments and says that the latter case in effect reverses the former on some points: “The Court is not bound to perpetuate faulty reasoning…” (P.65).
36 Charles Evan Hughes, quoted by Judge Jessup: supra note 1, at 325–26.
37 Ibid., 325.
38 Ibid.
39 Ibid., 328.
40 Ibid., 330.
41 Ibid., 336.
42 Ibid.
43 Ibid.
44 Ibid., 339 et seq.
45 Ibid., 386–87.
46 Ibid., 387.
47 Ibid., 442.
48 Ibid.
49 Ibid., 452.
50 Ibid., 240.
51 Supra note 5, at 526.
53 Ibid.
53 Ibid., 529.
54 Supra note 2, Green, at 66.
55 See supra note 12.
56 See The Globe and Mail, May 20, 1967, at 1.
