Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice Not an official document LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESO1,UTION 276 (1970) Atlvisory Opinion of 21 June 1971 In its advisory opinion on the question put by the Security Council of the United Nations, "What are the legal consequences for States of the continued presence!of South Africa in Namibia notwithstanding Security Council resolution 276 (1970)?", the Court was of opinion, by 13 votes to 2, (1) that, the continued presence of South Africa in Namibia being illegal, South Africa is uncler obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Temtory; by 11 votes to 4, (2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain fPom any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration; (3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regarti to Namibia. Course of the Proceedings (paras. 1-18 of the Advisory Opinion) The Court first recalls that the request for the advisory opinion emanated from the United Nations Security Council, which decided to submit it by resolution 284 (1970) adopted on 29 July 1970. The Court goes on to recapitulate the different steps in the subsequent proceedings. It refers in particular to the three M e r s of 26 January 1971 whereby the Court decided not to accede to the objections raised by the Government of South Africa against the participation in the proceedings of three Members of the Court. These objectiions were based on statements which the Judges in question trad made in a former capacity as representatives of their (3ovemments in United Nations organs dealing with matters concerning Namibia, or on their participation in the same capacity in the work of those organs. The Court came to the conclusion that none of the three cases called for the application of Article 17, paragraph 2, of its Statute. Objectionsagainst the Court's Dealing with the Question (paras. 19-41 of the Advisory Opinion) The Government of South Africa contended that the Court was not com tent to deliver the opinion, because Security Council reso ution 284 (1970) was invalid for the following reasons: (a) two :permanent members of the Council abstained during the voting (Charter of the United Nations, Art. 27, para. 3); (b) as the question related to a dispute between South Africa and other Members of the United Nations, South Africa should have been invited to participate in the discussion (Ch~arter,Art. 32) and the proviso requiring members of the Security Council which are parties to a dispute to abstain from voting should have been observed (Charter, Art. 27, para. 3). The Court points out that (a) for a long period the voluntary abstention of a permanent member has consistently been interpreted as not constituting a bar to the adoption of resolutions by the Security Council; (b) the question of Namibia was placed on the agenda of the Council as a situation and the South African Government failed to draw P For these proceedings the Court was composed as follows: President Sir Muhammad Zafrulla Khan; Vice-President Ammoun; Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petdn, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro. Morozov and Jim6nez de Arkhaga. The President of the Court, Sir Muhammad Zafrulla Khan, has appended a declaration to the Advisory Opinion. Vice-President Ammoun and Judges Padilla Nervo, Petdn, Onyeama, Dillard and de Castro have appended sepamte opinions. Judge Sir Gerald Fitzmaurice and Judge Gros have appended dissenting opinions. Continued on next page