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Advisory Opinion on Namibia

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    Bloomberg Law

    Citation. I.C.J., Advisory Opinion, 1971, I.C.J. Rep 16.

    Brief Fact Summary. Under a claim of right to annex Namibia, South Africa occupied its territory 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.


    Synopsis of Rule of Law. Member States of the United Nations are bounded by its mandates and violations or breaches results 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.


    Facts. Under a claim of right to annex the Namibian territory and under the claim that Namibia’s nationals desired South Africa’s (D) rule, South Africa (D) began the occupation of Namibia. South Africa was subject to a U.N. Mandate prohibiting Member States from taking physical control of other territories because it was a Member State of the United Nations.
    The Resolution 2145 (XXI) terminating the Mandate of South Africa (D) was adopted by the U.N and the Security Council adopted Resolution 276 (1970) which declared the continuous presence of South Africa (D) in Namibia as illegal and called upon other Member States to act accordingly. An advisory opinion was however demanded from the International Court of Justice.


    Issue. 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 violations?


    Held. Yes. Member States of the United Nations are bounded by its mandates and violations or breaches results 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. As Member States, the obligation to keep intact and preserve the rights of other States and the people in them has been assumed.
    So when a Member State does not toll this line, that State cannot be recognized as retaining the rights that it claims to derive from the relationship. In this particular case, the General Assembly discovered that South Africa (D) contravened the Mandate because of its deliberate actions and persistent violations of occupying Namibia.
    Hence, it is within the power of the Assembly to terminate the Mandate with respect to a violating Member State, which was accomplished by resolution 2145 (XXI) in this case. The resolutions and decisions of the Security Council in enforcing termination of this nature are binding on the Member States, regardless of how they voted on the measure when adopted. South Africa (D) is therefore bound to obey the dictates of the Mandate, the resolution terminating it as to South Africa (D), and the enforcement procedures of the Security Council.
    Once the Mandate has been adopted by the United Nations, it becomes binding upon all Member States and the violations or breaches of this Mandate 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.


    Discussion. Despite agreeing to restore independence to Namibia with the United Nations, South Africa (D) did not. A number of mandatory sanctions for enforcement were now adopted by the General Assembly and the action of South Africa (D) was “strongly condemned”.



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