‘Could Not Exceed Function’

Press, Volume CVI, Issue 31116, 20 July 1966, Page 13

‘Could Not Exceed Function’

(N Z.P.A. Reuter—Copyright) THE HAGUE, July 19. The International Court of Justice rejected the complaint brought by Liberia and Ethiopia aaginst South African administration of its mandate over South-West Africa on the President’s casting vote.

Sir Percy Spender, the Australian President of the Court, announced after reading a two-hour judgment that the complaints were rejected because Ethiopia and Liberia had not established any legal right or interest in the subject matter of their complaint. Sir Percy Spender said: “For these reasons, by the President’s casting vote, the votes being equal, the Court decides to reject the claims of Ethiopia and Liberia." Not On Apartheid The Court’s judgment did not deal with the merits of South Africa’s administration of the territory and the application there of the policy of apartheid. It discussed the legal question of Ethiopia’s and Liberia’s legal rights or interests in questioning South Africa’s administration. Near the end of his reading of the judgment, the Court President said the Court could not exceed its function. He said it was not a legislative body. “Its duty is to apply the law as it finds it, not to make it,” he said. Sir Percy Spender said rights could not be presumed to exist merely because they might be considered desirable to exist. Humanitarian Problems The Court’s ruling rejected the suggestion made through--out the case that humanitarian considerations were sufficient in themselves to gener-,

ate legal rights and obligations and that the Court could and should proceed accordingly. “This is a court of law and can take account of moral principles only insofar as they are given sufficient expression in legal form,” Sir Percy Spender said. “The Court can do so only within the limits of its own disciplines.” The judges who dissented from the judgment were Mr Wellington Koo of Formosa; Mr Koretsky of the Soviet Union: Mr Tanaka of Japan: Mr Jessup of the United States: Mr Padilla Nervo of Mexico; Mr Forester of Senegal; and Sir Louis Mbanefo of Nigera, who was ad hoc judge for Ethiopia and Liberia. Judge Jessup declared: “In my opinion, the Court is not legally justified in stopping at the threshold of the case, avoiding a decision on the fundamental question whether the policy and practice of apartheid tn the mandated territory of South-West Africa is compatible with the discharge of the *sacred trust' confided to the Republic of South Africa as mandatory." Mr Koretsky, in his dissenting opinion, said the applicants’ “legal right or interest” as a ground for instituting proceedings had already been decided in the Court’s 1962 finding on its jurisdiction in the case. In its findings today the Court had revised i its U 962 judgment, he said.