27.
Dissenting Opinion of Judge
Tanaka in South West Africa
Case, ICJ Reports, 1966
Atin, Ma. Katrina Pamela H.
Facts:
On 4 November 1960, Ethiopia and Liberia, as former States Members of the League of Nations, instituted separate
proceedings against South Africa in a case concerning the continued existence of the League of Nations Mandate
for South West Africa and the duties and performance of South Africa as mandatory Power. The Court was
requested to make declarations to the effect that South West Africa remained a territory under a Mandate, that
South Africa had been in breach of its obligations under that Mandate, and that the Mandate and hence the
mandatory authority were subject to the supervision of the United Nations. On 20 May 1961, the Court made an
Order finding Ethiopia and Liberia to be in the same interest and joining the proceedings each had instituted. South
Africa filed four preliminary objections to the Court’s jurisdiction. In a Judgment of 21 December 1962, the Court
rejected these and upheld its jurisdiction. After pleadings on the merits had been filed within the time-limits fixed at
the request of the Parties, the Court held public sittings from 15 March to 29 November 1965 in order to hear oral
arguments and testimony, and judgment in the second phase was given on 18 July 1966. By the casting vote of the
President — the votes having been equally divided (7-7) — the Court found that Ethiopia and Liberia could not be
considered to have established any legal right or interest appertaining to them in the subject-matter of their claims,
and accordingly decided to reject those claims.
Issue: WON the Mandate still exists despite the dissolution of the League.
Ruling:
From the point of view of purely juridical formalism, there is the As a theoretical construction, the concept of the "organized international community"
may be referred to in order to explain the legal position of the mandatory. The
conclusion that, so far as the Mandate is conceived as a contract mandatory owes obligations on behalf of the League, but in the formal sense.
between the two parties, namely the League of Nations on the one Substantively, the inandatory is responsible to an international entity which underlies
hand and the Mandatory on the other, the dissolution of the League the League as a sociological reality, namely the organized international community,
would produce, as a necessary consequence, the absolute extinction which was represented by the League, and, after its dissolution, has been represented
of the Mandate with all its legal vincula and that nothing remains by the United Nations. In short, we may conceive that, after the dissolution of the
thereafter. League, the mandatory continues to have obligations in relation to an impersonal entity,
namely the organized international community as before, which is personified as the
However, the vital interests of the inhabitants of the mandated United Nations.
territories, being of primary importance, require that the Mandate The Mandate as a social entity must be maintained and protected. From this viewpoint,
shall not be affected by the vicissitudes of international we consider the Mandate does not lapse; it continues to function. The existence of the
circumstances. In a mandate, the matter of who the mandator is is not League of Nations itself is immaterial to the existence of the Mandate, on behalf of
so important as who is the mandatory. whom the Mandate is carried out, apart from the question of supervision which is dealt
with.
The position of mandatory, different from that of mandator, for the
reasons of special obligations which are incumbent upon him, is highly (1) South West Africa is a territory under the Mandate, and (2) Respondent continues
to have the international obligations stated in Article 22 of the Covenant of the League
personal and unable to be substituted by any other persons. From the of Nations and in the Mandate for South West Africa, the supervisory functions to be
standpoint of the inhabitants, therefore, whether the mandate is exercised by the United Nations, to which the annual reports are to be submitted.
established on behalf of the League or whether it exists on behalf of
the United Nations is quite immaterial.
Doctrine:
MANDATE IN INTERNATIONAL LAW
A mandate is a binding obligation issued from an intergovernmental organization (e.g. the United Nations) to a country which is bound to follow the
instructions of the organization. Before the creation of the United Nations, all mandates were issued from the League of Nations. The Mandate System was
an attempt to stop the cycle of war and fighting over conquered land by appropriating the land of the collapsed Ottoman Empire and the colonies of
Germany.
DOCTRINE OF JURISDICTION
Jurisdiction is concerned with the reach of a State’s law: what link, if any, is required for a State to apply its laws to situations and persons? Jurisdiction is an
aspect of a State’s sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. In the classic Westphalian understanding,
this right has been limited to a State’s territory, a limitation that at the same time ensures that no State intervenes in another State’s affairs (Section 1).
In public international law, the concept of jurisdiction has traditionally had a strong link with the notion of sovereignty. Jurisdiction allows States to give
effect to the sovereign independence which they are endowed with in a global system of formally equal States, through stating what the law is relating to
persons or activities in which they have a legal interest. Sovereignty; however not only serves as an enabling concept with respect to the exercise of
jurisdiction, but also as a restraining device: it informs the adoption of international rules restricting the exercise of State jurisdiction. States may indeed well
adopt laws that govern matters that are not exclusively of domestic concern, and thereby impinge on other States’ sovereignty. In essence, the laws of
jurisdiction delimit the competences between States, and thus serve as the basic traffic rules’ of the international legal order.
DOCTRINE OF JUDICIAL SUPERVISION
Judicial supervision, generally occurring subsequently both to administrative action and to measures of administrative supervision, is designed to correct
errors which have already occurred and to provide compensation for losses resulting from them.
