BERMUN 2016
Memorial to the International Court of Justice
Republic of South Africa
in the case of
Ethiopia
​
​v. South Africa
South West Africa Cases
Contents
Chronology of Events
Legal Concepts
Definitions of Legal Principles
Prayer to the Court
Bibliography
I. Chronology of Events
In 1883 Franz Adolf Lüderitz a German merchant established a trading post in Southwest Africa
at Angra Pequena and later on acquired the adjacent coastal area. These areas were taken under
German protection on April 24 1884 and were established as part of the first German colony in
Africa, which became known as one of the first incidents in the European scramble for Africa.
The German occupation extended inland and this colony became known as Caprivi Zipfel
(henceforth to be referred to as as Southwest Africa)
Nevertheless on June 28, 1914 Gavrilo Princip assassinated Franz Ferdinand consequently
starting World War I (1914​1918). Germany declared war on Russia on August 1, 1914 [2]
effectively bringing the country into the war fighting on the side of the Axis powers.
Before this between on May 31st 1910 the British colony of South Africa (henceforth referred to
as the respondents) became a Union (the Union of South Africa) uniting four colonies and an
independent dominion within the British Empire [4] . Therefore when World War I began the
respondents rallied to the British and Allied cause. In February 1915 [5] they launched an attack
on South West Africa, this was the only campaign planned and successfully completed by a
dominion [6] . By July the German forces in the country surrendered. Nevertheless the war
continued on for three more years until Germany signed an Armistice on November the 11th
1918 [2] .
Subsequently Germany signed the Treaty of Versailles on June 28 1919 [8] . Article 119 of the
aforementioned treaty stated that Germany would relinquish all of its overseas colonies the allies
[7] (henceforth known as Mandates). Furthermore the treaty detailed the Covenant of the League
of Nations, an international organisation with the aim of preserving international cooperation
aiming to avoid another destructive world conflict. One of the roles the League of Nations was to
assign mandates to certain countries. South Africa became known as a Class C Mandate, which
consists of former German occupied territories which were administered by the mandatories as
integral parts of their territory [3] and this administration was supervised by the League of
Nations.
The respondents were given South West Africa as a Class C mandate in 1920. It then replaced
the former German law with the Roman​Dutch Law and for five years the parliament of the
respondents legislated directly for the territory. In 1925 the Constitutional Act was passed which
provided for an election of a South West African assembly of limited legislative powers. During
this administration the courts of South Africa also handed down two decisions which reflected
the respondent's view of the status of the territory. In 1923 the courts decided that the
respondents possessed sufficient elements of both internal and external sovereignty that the
inhabitants of the mandate have an obligation of allegiance to the respondents. And in 1925 the
courts decided that any criminal judgement rendered by the respondents’ courts would not be
treated by the mandate as a foreign tribunal.
Nevertheless after World War II (1939​1945) in 1946, because of previous problems with the
League of Nations, the League was dissolved, and shortly thereafter, a new international body
was formed named the United Nations (henceforth referred to as the UN). The charter of the UN
did not explicitly provide for the continuation of the mandates, it did however establish an
international trusteeship system which would administer and supervise non self​governing,
underdeveloped territories including those under the current mandate system[9] . The assembly
also expressed the opinion that the member states administering territories who were under a
mandate should continue to do so [9] . Eventually all mandates were either granted independence
or given to the trusteeship system, with the exception of South West Africa [9] .
In 1946 the question of South West Africa was brought before the UN Assembly, the General
assembly rejected South West Africa’s proposal for the respondents to formally change the legal
status of the territory, and it proposed that the mandated territory to be placed under the
trusteeship system[9] . However the respondents refused and stated it will continue administering
the territory as a mandate [9] .
In 1949 the respondents expanded its Parliament to include South African Representatives and
due to the dissolution of the League of Nations the Union curtailed the submission of the annual
report as the Union could no longer send reports to a non​existent League or Council. This was
seen as South West Africa ceasing to be a mandate [9] . As a result of this the United Nations
invoked the jurisdiction of the International Court of Justice to determine the legal status of
South West Africa, which confirmed in 1950 that South West Africa was a mandate under the
respondent's rule [9] . However the court did not impose any legal obligation onto the
respondents to bring the territory into the trusteeship system and stated that the UN Charter on
the trusteeship system was only applicable if it became a trustee [9] . The respondents viewed
this as merely advisory and not binding, however later on they did express an interest in talks and
the UN created a committee which was authorised to negotiate with the respondents as far as
possible [9] . These talks were then ceased later on as an agreement could not be reached [9] .
In 1960 the Federal Democratic Republic of Ethiopia (henceforth known as the applicants) filed
an application with the International Court of Justice asking the court to reaffirm its previous
ruling in 1950 on the status of the mandate [9] . The applicants also alleged that the respondents
had not fulfilled their obligations of promoting the utmost well being of the population due to the
introduction of apartheid laws to the territory [9] .
On December 1962 the Court handed down a judgement on the preliminary objections of the
respondents. All the preliminary objections were rejected, therefore the Court has jurisdiction
over the case, the applicants were deemed to have a right to bring the case to the Court and the
mandate was determined to be an international Treaty in force [9] .
The respondents believe that administration of South West Africa has not broken the terms of the
Mandate and that Ethiopia does not have any legal basis for their claim on merits.
Legal Concepts
1. The Covenant of the League of Nations created the foundation for the mandate system,
including: the purpose of the mandate system, the creation of the overseeing council, the
obligations of mandatories and the legal framework for such administration
2. The South West Africa Mandate Act 1920 granted South Africa control over the Mandate
of South West Africa.
3. The United Nations, while taking on many of the same roles, cannot be legally
recognized as a descendant of the League of Nations, nor can it be considered to have
thus inherited any duties stated outside of the “Resolution for the Dissolution of the
League of Nations” which was adopted by the Assembly on April 18th, 1946. [12]
4. In 1950 the ICJ issued an advisory opinion on the status of the mandate stating that:
a. The mandate is a legal treaty in force
b. The function of the supervision of the application of the mandate was given to the
United Nations,
c. South Africa was not obligated to turn the mandate into a UN trusteeship territory
d. South Africa was to send reports on the administration of the Mandate to the
United Nations, [13]
Nevertheless it is recognised by the ICJ that the advisory opinions of the court are not
legally binding. [14]
5. The respondents acknowledge the ICJ ruling on the preliminary objections in 1962 which
stated that:
a. Mandate continues to be a legal treaty in force
b. The objection upon Article 7 of the mandate stating a dispute and negotiations
must have occurred to bring the case to the ICJ were rejected and therefore the
ICJ has jurisdiction over the case.
c. The applicants have a right to bring this case to the court. However, there is no
contradiction between a decision of the court to reject the preliminary objections,
thus allowing the invocation of a jurisdictional clause and the continuing
requirement of the Applicants to establish the legal basis on their claim of merits
within the second phase of the case.
Definitions of Legal Principles
Actio Popularis:
A legal principle derived from Roman Law which is defined as an action taken by a third
party in the interest of the public as a whole [10] . Article 38 of the statute of the International
Court of Justice refers to international law being “International Conventions”, “International
Customs” and “General Principles of Law recognised by civilized nations”. Actio popularis is
not currently accepted as a legal principle in all nations therefore the respondents do not view
this as a principle of international law and thus refute the insubstantial claim that the applicants
may derive legal interest in South West Africa through the stated principle of Actio Popularis.
Sacred Trust:
Article 22 of the League of Nations refers to the application of a “Sacred Trust of
Civilisation” between fledgling nations who had recently ceased to be under the Sovereignty of
the States which formerly governed them, yet are not ready for independence, and advanced
nations who by reason of their resources, their experience or their geographical position can best
undertake this responsibility. [11] This is one of the guiding moral principles for all nations
which undertake a mandate on behalf of the League of Nations, yet for it to be properly
integrated into legal proceedings there must be a more substantive legal principle derived from
the moral principle. Currently, the moral principle of “Sacred Trust” has no residual
jurisdictional content which could be applied to give rights or obligations in the legal world,
especially with regards to the mandates. Thus, “Sacred Trust” can only be viewed as a guiding
principle of a nation's intentions and morality with regards to a mandate and not as a legal
principle which mandatory nations are legally obliged to uphold.
Prayer to the Court
In conclusion, the Union of South Africa recognises the mandate for the territory of South West
Africa as a continuing contractual and legal agreement despite the dissolution of the League of
Nations and the Permanent Mandate Commission, and requests that the court allow the
continuation of the administration of South West Africa by the Union of South Africa under:
a. Its current legal status as the holder of the mandate and through the agreements laid out
by the original mandate for South West Africa and any following amendments to the
aforementioned mandate.
b. The current legal agreements laid out by the original mandate for South West Africa and
any following amendments.
Bibliography
1. N.p., n.d. Web. <https://www.britannica.com/place/German​South​West​Africa>.
2. "How and Why Did the First World War Start?" ​The Week UK. N.p., 31 May 2016. Web.
2016.
<http://www.theweek.co.uk/world-news/first-world-war/59782/how-did-the-first-world-war-start
>.
3. N.p., n.d. Web. <http://www.britannica.com/topic/mandate​League​of​Nations>.
4."HISTORY OF SOUTH AFRICA." ​HISTORY OF SOUTH AFRICA. N.p., n.d. Web. 2016.
<http://www.historyworld.net/wrldhis/PlainTextHistories.asp?ParagraphID=otw>.
5. "HISTORY OF NAMIBIA." ​HISTORY OF NAMIBIA. N.p., n.d. Web. 2016.
<http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid=ad32#ixzz4J
DvTp7oG>.
6. Hanlon, Michael. "German Defeat in Southwest Africa." ​The Great War Society: 90th
Anniversary - German Defeat in Southwest Africa. N.p., n.d. Web. 01 Nov. 2016.
<http://www.worldwar1.com/tgws/swafrica.htm>.
7. "Peace Treaty of Versailles, Articles 118-158, German Rights and Interests Outside
Germany." N.p., n.d. Web. 2016. <http://net.lib.byu.edu/~rdh7/wwi/versa/versa3.html>.
8. N.p., n.d. Web.
<http://www.historylearningsite.co.uk/modern​world​history​1918​to​1980/the​treat+y​of​versailles/+>
.
9.N.p., n.d. Web.
<http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=3059&context=law_l awreview>.
10.N.p., n.d. Web. <http://www.yourdictionary.com/actio​popularis>.
11. "Avalon Project - The Covenant of the League of Nations." ​Avalon Project - The Covenant of
the League of Nations. N.p., n.d. Web. 2016.
<http://avalon.law.yale.edu/20th_century/leagcov.asp>. 12.N.p., n.d. Web.
<https://www.jstor.org/stable/2703564?seq=1#page_scan_tab_contents>. 13.(n.d.): n. pag. Web.
<http://www.icj​cij.org/docket/files/10/1893.pdf>. 14.N.p., n.d. Web.
<http://www.icj​cij.org/jurisdiction/index.php?p1=5&p2=2>.