THE WORLD COURT THE IMPLICATIONS OF THE S.-WEST AFRICA JUDGMENT

Press, Volume CVI, Issue 31124, 29 July 1966, Page 12

THE WORLD COURT THE IMPLICATIONS OF THE S.-WEST AFRICA JUDGMENT

(By

JOB ROGALY

in the "Financial Timet". London!

(Reprinted by arrangement)

Sir Percy Spender’s casting vote in the triumph the World Court has presented Dr. Verwoerd with the international of his career to date. It ends nearly six years of effort Southenemies of apartheid, and establishes South Africa . ... j u more West Africa (previously thought to be the Republic s Achilles neeij n firmly than ever.

It does not, however, end the 20-year old battle between South Africa and the United Nations over the administration of the territory. It is necessary to go into a little history to explain this. South-West Africa, formerly a German colony, was made a South African mandate by the League of Nations in 1920, largely at the instigation of General Smuts. One of the first acts taken by the United Nations, following the Second World War, was to stake its claim to the continuation of the League’s mandate system. On December 11, 1946, the General Assembly of the United Nations recommended that South-West Africa be placed under the United Nations trusteeship council. Advisory Opinion Ever since then the argument has gone on. In 1950 the General Assembly won an advisory opinion from the International Court of Justice, to the effect that South Africa still had international obligations to the United Nations over South-West Africa—and then followed a decade of further similar advisory judgments, United Nations committees, appeals, and warnings. There is no legal reason why this kind of argument should not continue now that the latest World Court judgment has gone against those who oppose South Africa. The pressures at the United Nations will no doubt continue—but what can no longer continue is the attempt to get a mandatory (as opposed to advisory) decision from the World Court. For that is what the appellants (Ethiopia and Liberia, as members of both the League and the United Nations) sought. They wanted a decision, legally binding on South Africa, to the effect that the practice of apartheid in SouthWest Africa is a violation of the original “mandate in trust” granted by the League of Nations—a mandate that stressed the wellbeing and development of the indigenous people. The six-year campaign aimed at obtaining such a judgment has been thought worthwhile by the African states that have helped to finance it because Dr Verwoerd might have been put in a position, by a positive judgment, where he either had to give up the practice of apartheid in South-West Africa—or face Security Council action. This could have taken any form; the one most widely canvassed was the imposition of economic sanctions against the Republic.

This campaign at the Court has been expensive—estimates of the total cost to both sides reach up into the millions, with the heavier figure usually placed on the South African account. Dr. Verwoerd certainly sent a big team of his best lawyers to The Hague, and there is no doubt that the South African Government, which is known to be legalistically-minded, took the case very seriously indeed. For the appellants Mr Ernest A. Gross, a member of the New York Bar, led the attack. The judgment now handed down is based on a legal opinion that, in reverse form, had already been expressed in 1962 by most of the judges now supporting it. For in 1962 the court decided by an 8-7 vote that it had jurisdiction in the case—while the present judgment, on a casting vote by the President, Sir Percy Spender, was that Ethiopia and Liberia had not established any legal right or interest in the subject matter of their complaint. Seven judges supported this point of view (some with reservations) yesterday: Sir Percy Spender in effect, supported it twice, making the vote 8-7—but this time in the reverse direction from the 1962 decision. Of the seven judges who, as- it were, threw the case out, six were the same men who voted, in 1962, for the view that the court had no jurisdiction in the first place. These six were: Sir Percy Spender, Mr J. T. van Wyk (South Africa’s nominee), Mr B. Winiarski (a Pole), Mr J. Spiropoulos (Greece), Sir Gerald Fitzmaurice (Britain), and Mr G. Morelli (Italy). The seventh was Mr A. Gros, the Frenchman who has replaced Judge Basdevant (also French, he voted with the other six in 1962) since the last judgment. Those who voted against the present judgment, and also voted for the case to be heard in 1962, were: Mr Wellington Koo (China): Sir Louis Mbanefo (the Africans' nominee, Nigeria); Mr V. M. Koretsky (Russia); and Mr P. C. Jessup (United States). In between the two judgments four judges who voted against the South African side last time (Panama, Egypt, Argentina, Peru) have left the court and only three (Japan, Mexico, Senegal) have taken their place to vote against Dr. Verwoerd’s side of the argument this time. A Judge Died It might be assumed that if one of the judges ,who voted,

as is were, ’against Verwoerd” in 1962 had not died last August the voting have gone the other way. The judge concerned is Judge Badawi, of Egypt. Because of this,- it is likely that the losers at least will soon be heard to say that the changed composition of the court —which led to Sir Percy having the casting vote—had an adverse effect on their chances. Certainly the international legal world is clearly divided between those who believe that the World Court can have juristiction over South Africa’s handling of South-West Africa—and those who firmly believe that it cannot. . , , Thus Dr. Verwoerd is left in an extremely strong position. South African Governments have brushed aside United Nations complaints and appeals over South-West Africa for two decades already and it must be presumed that they feel able to carry on doing so for another two decades. The importance of this case has not been the situation of South-West Africa’s people so much as the attitude that so many people and countries in the world have towards apartheid. The Africans and many other countries have seen the case as a weapon to use against the Republic—although both the British and the American Governments have long sought to avoid things coming to the point where economic sanctions would be brought into the picture. Nearly All Desert South-West Africa itself is nearly all desert. It is about four times the size of Britain, with a population equal to that of Leeds. In area, indeed it is almost as large as the Republic itself; in population it is hardly significant. About four-fifths of its half-a-million people are black Africans; a seventh are white, and the rest are mixed-bloods (“Coloureds"). The land presently designated “African” comprises about a quarter of the total area of the country; most of this is in the north, up against the Angola border. The largest African tribe—around a quarter of a million people—are Ovambos; their crowded, impoverished reserve is in the extreme north. Of the 75,000 whites, most are Afrikaners although there is also a strong German element, dating from the original German colonisation of the territory. The whites live in the capital, Windhoek, and in Walvis BaySwakopmund (fishing, shipping and tourism), Tsumeb (mining), Keetmanshoop (farming), Luderitz (fishing), Grootfontein (farming) and Oranjemund (diamonds). Others are dotted about in the immense cattle and karakul sheep farms that are spread across the south. Most of the non-whites live in reserves, but around a third of them earn money as (predominently unskilled) labourers in the white part of the country. Wages are 3s a shift on the mines (thrice the 1949 figure) and £3 minimum a month for male servants. But Consolidated Diamond Mines, for example, pays £lO a month minimum, plus food, accommodation, and welfare services. Mineral Riches This De Beer's company has opencast mines that produce a quarter of a ton of gem diamonds a year; the Tsumeb mines, mainly American owned, produce lead, zinc, copper and silver. Mining exports (£47 million in 1964) are the territory’s most important product. Together with the products of farming and fishing the £7O million or so of exports a year account for some 8 per cent of the total trade and gold receipts of the South African customs area. With all this wealth to protect and develop, the South African Government will now presumably go ahead with its political and economic plans for the division of the territory on apartheid lines “White” South-West Africa is already to all intents and purposes integrated in the Republic—what has been held up, pending the World Court’s decision, has been the grand plan to expand the African part of the territory (to 40 per cent of the total) and to administer it through separate tribal “Bantustans.” Some of the spending on infrastructure that is part of the same plan has already taken place but so far the bulk of the benefit has been felt by the white sector. Whoever feels the benefit in the future, South African officials will no longer be looking over their shoulders towards The Hague to wonder at the effect it is having over there.