Legal and Political Strategies of the South West

The longer the South West Africa Case dragged on at the Hague, the more the anticipation was built up that the eventual decision would be of critical importance. Waldemar Nielsen, for example, wrote in 1965, in the fifth year of the litigation: The So uth Wes t Africa Case may be, as so me have sa id, the Achilles' hee l of apartheid. It could also be the Achilles' heel of the International Court, of the United Nations, and of the concepts of the rule of law and of human rights under the United Nations Charter. 1 The Court's decision was handed down on July 18, 1966. Almost as if it were determined to ensure that its decision would not be an Achilles' heel of anything, the Court surprised everyone by ruling that the Applicants, Ethiopia and Liberia, had no standing to bring their suit against the Republic of South Africa (the "Respondent"). More precisely, they had no "legal right or interest" in the "subject matter" of the dispute. The surprise stemmed from the fact that in 1962, in the "jurisdictional" phase of the South West Africa Case, the Court found that it had "jurisdiction to adjudicate upon the merits of the dispute." Between 1962 and 1966 there occurred by far the most voluminous written arguments and most protracted oral hearings on the merits of a dispute in the World Court's history. The arguments touched every phase of South Africa' s responsibilities, under a Mandate of the League of Nations issued in 1920, to the inhabitants of South West Africa. In August 1965, when the most important portion of the oral proceedings at the Hague had been concluded, Judge Badawi of the United Arab Republic died. By November 1965, when the Case finally ended, Judge Bustamante of Peru had not yet recovered from the illness which kept him away from the oral proceedings. Both of these judges had been firmly on the side of the Applicants, but the Court follows a rule that a judge who has not taken part in the proceedings cannot vote in the final judgment. As a result of these two major changes and some less important compositional modifications, the final vote in July 1966 was 7 to 7. Since the President of the Court has, in case of tie, an extra (or "casting") vote, and since President Spender of Australia was firmly on the side …