1. New light on the South West Africa Cases
The fiftieth anniversary of the South West Africa Cases provides a prescient moment to revisit a lingering controversy that has haunted the International Court of Justice (ICJ) since 1966. Why did the ICJ refuse to address the merits of the dispute on the ground that Ethiopia and Liberia ‘cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims’,Footnote 1 when the same Court had already ruled in 1962 that: ‘the Members of the League [of Nations] were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members’?Footnote 2
The argument here is that Judge Sir Percy Spender, the President of the Court, whose casting vote decided the cases in favour of South Africa, did not want to address the merits of the dispute in the South West Africa Cases, because the cases were about self-determination, as much as they were about apartheid. It is argued that in Sir Percy's view, self-determination had been hijacked by the Soviet Union and the Afro-Asian bloc at the United Nations (UN), which he had been observing with concern as Australia's chief diplomat to the UN from 1950–1957. It could be said that the link in Sir Percy's mind between self-determination, the Soviet Union, and the anticolonialism of the Afro-Asian bloc at the UN also provides another perspective to the ‘recusal’ controversy of Judge Sir Mohammad Zafrulla Khan. As I have written elsewhere:
Sir Percy's period as Australia's ambassador to the US coincided with the hysteria of the “McCarthy era”, when Communism affected not only domestic US politics but also the foreign policy establishment. Although Sir Percy and Zafrulla had both forged close relationships with the US government, a relationship that in Zafrulla's case helped secure his election to the Presidency of the UN General Assembly, as well as to the ICJ, they were divided on the question of decolonization. Despite a shift in US policy favouring decolonization in the early 1960s, Sir Percy nonetheless maintained his “reputation for trying to slow down the process of decolonization”.Footnote 3
The only reason the ICJ was able to reverse the 1962 decision was because three of the judges who had taken part in that decision were absent during the subsequent phase through death, illness, and the ‘recusal’ of Zafrulla Khan. In the early 1960s, self-determination was a controversial doctrine because it had become associated with international Communism and with those states that had joined the alliance with the socialist bloc at the UN in supporting resolutions aimed at undermining Western imperialism. One such example was Resolution 1514 containing ‘The Declaration on the Granting of Independence to Colonial Countries and Peoples’ (Decolonization Declaration).Footnote 4
Self-determination was at the heart of the South West Africa Cases because Ethiopia and Liberia, in addition to claiming that apartheid was contrary to international law, were also claiming that South Africa was violating the right of the population of South West Africa to self-determination; which they understood to apply to the population as a whole.Footnote 5 The Applicants’ argument was not only directed at South Africa's retention of the Mandate of South West Africa and its refusal to subject that Mandate to the scrutiny of the UN, but was also directed at the nature of the regime administering South West Africa.
This article builds upon earlier research on the influence of decolonization on international law,Footnote 6 by shedding light on Sir Percy's role in the second phase of the South West Africa Cases with reference to correspondence he retained in his personal papers, which were donated to the National Library of Australia and made available to the public, as well as his speeches and writings from his time as Australia's Minister of External Affairs (1949–1951), Ambassador to Washington (1951–1957), and Chairman of Australia's Delegation to the UN General Assembly (1950–1957).Footnote 7 These speeches were delivered before Sir Percy was appointed to the ICJ, where he was a judge from 1957–1967, serving as President from 1964–1967, when the second phase of the South West Africa Cases were heard. Sir Percy believed that self-determination, far from being a human right, was a political doctrine aimed at introducing a totalitarian government in South West Africa.
To understand the extent to which self-determination was the proverbial ‘elephant in the court room’ we need to consider the bigger picture before taking a closer look at Judge Sir Percy Spender's views before he moved to the ICJ. For what transpired in the second phase of the South West Africa Cases cannot be explained by the 1966 judgment alone, since it barely addressed the merits. Rather, what the Court did not say in 1966 was as important as what it said. In other words, we need to appreciate the judgment's subtext and not just the text.
2. Self-determination before the South West Africa Cases
Although there was no general right of self-determination in international law in the era of the League of Nations, a right of self-government did apply by way of exception to those territories and peoples provisionally recognized as independent nations by the mandatory system as provided for in Article 22 of the Covenant of the League of Nations.Footnote 8 This is important to highlight because the principles expressed in Article 22 would find expression in Chapters XI, XII, and XIII of the UN Charter.Footnote 9 These provisions would form the basis of the complaint in the South West Africa Cases against South Africa for its apartheid policy and its refusal to confer self-government upon the population of South West Africa as a whole.
In the inter-war years, self-government was expressed in the form of the League of Nations Mandates system that categorized the territories entitled to self-government in the form of A-, B-, and C-class Mandates. According to the text of Article 22 of the Covenant, independence was only a goal in the case of the A- and B-class Mandates, although at a later and indeterminate point in time, but self-government was not foreseen for the C-class Mandates. Article 22 was explicit with regard to the latter:
There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory subject to the safeguards above mentioned in the interests of the indigenous population.
Inequality was a hallmark of international relations in this period: all peoples were manifestly not entitled to self-government; some peoples were more equal than others; and any doctrine that suggested anything else was to be kept away.Footnote 10 Thus, the Soviet Union was only invited to join the League in 1934 after Germany and Japan had left, and it would be expelled after it invaded Finland in 1939.Footnote 11 The Soviet Union was never an original member of the League of Nations nor was Moscow consulted or involved in the drafting of the Covenant.
The Soviet Union was only able to influence the new world order after the Second World War, when it was invited to participate in the drafting of the UN Charter. This explains why self-determination is referenced twice in the Charter in Articles 1(2) and 55 in contrast to the Covenant of the League of Nations where self-determination was conspicuously absent.Footnote 12
Before the First World War, Russian revolutionary V.I. Lenin had expressed his vision of self-determination which was at opposites to the vision of self-determination later articulated by President Wilson and only half-heartedly accepted by the allies in the form of self-government that applied to the Mandates.Footnote 13 In contrast to Wilson, Lenin's form of self-determination demanded a complete and immediate end to European colonialism and made no distinction between different classes of Mandates or colonies. Given these differences, it is not surprising that self-determination is not defined in the Charter. By not defining self-determination, the West could claim that self-determination only applied to trust territories as provided for in Article 76 of the Charter (which mentions independence as a possibility along with self-government), namely to the former Mandates. But it also meant that the Soviet Union could claim that self-determination meant something else. Given Lenin's and other Communists’ copious writings on self-determination,Footnote 14 many of the judges participating in the South West Africa Cases would have understood the difference between the League of Nation's approach to self-government and the Soviet Union's doctrine of self-determination.Footnote 15 This was especially so since some of them had been involved in the drafting of the UN Charter or were present in early debates on self-determination at the UN.Footnote 16
When relations between the Soviet Union, the United States, and the United Kingdom deteriorated following Winston Churchill's ‘Iron Curtain’ speech in Fulton, Missouri in 1946, excoriating Communist ‘fifth columns’ and calling for a union of ‘English-speaking peoples’,Footnote 17 an alliance between the Soviet Union and the newly-independent states in Africa and Asia re-emerged.Footnote 18 Significantly, in his speech Churchill warned that ‘in a great number of countries, far from the Russian frontiers and throughout the world, Communist fifth columns are established and work in complete unity and absolute obedience to the directions they receive from the Communist centre’.Footnote 19 Churchill's reference to the ‘Communist centre’ was a reference to the Comintern or the Communist International – a worldwide organization headquartered in Moscow – to which all workers’ parties were invited as members.Footnote 20
The alliance between the Soviet Union and the Afro-Asian bloc can be traced back to the inter-war years and the conferences clandestinely organized through the Comintern by the League against Imperialism in the 1920s.Footnote 21 This alliance gathered momentum following the independence of India, Pakistan, Burma, and Indonesia. Following Stalin's death in 1953, Soviet premier Nikita Khrushchev embarked on a strategy to ‘capture’ the Third World.Footnote 22
In November 1960, when Ethiopia and Liberia instituted proceedings against South Africa, 16 African states had joined the UN, fundamentally altering the balance of power in the General Assembly.Footnote 23 This was when the General Assembly adopted the Decolonization Declaration. This declaration was closer to the Soviet Union's vision of self-determination and differed in important respects from the model of self-government that had been applied by the League of Nations in respect of the Mandates and that also found expression in the UN's Trusteeship system.Footnote 24 In the interwar years, the conferral of self-government on the people of a Mandate was at the discretion of the Mandatory. In contrast, self-determination as promoted by the Soviet Union took away that discretion and sought an immediate end to European colonialism in Africa and Asia. While the United States also aspired to end European colonialism in Africa and Asia, its motivations and methods differed from those of the Soviet Union.Footnote 25 Under the Soviet vision of self-determination that found support in the Third World, it was for the ‘people’ alone, not the administering power, to determine when colonialism should come to a ‘speedy end’ – by armed struggle, if necessary.Footnote 26 It was the Soviet model that found expression in the Decolonization Declaration through its alliance with the Afro-Asian bloc whose draft declaration was adopted by the General Assembly after the topic of colonialism had been placed on the agenda of the assembly by the Soviet Union.Footnote 27
3. Cold War self-determination: The views of Sir Percy Spender
The Decolonization Declaration describes Western colonialism as being associated with ‘alien subjugation, domination and exploitation’.Footnote 28 It also states that colonialism ‘constitutes a denial of fundamental human rights’.Footnote 29 Significantly, the Decolonization Declaration declares categorically that colonialism is ‘contrary to the Charter of the United Nations’.Footnote 30 Sir Percy likely would have disagreed with this description of colonialism, having told the General Assembly in 1952, when he was arguing against the adoption of the first draft resolution on self-determination, that:
It is not so long ago when Australians were ‘colonials’ in the same sense as those who support this resolution speak of. Within the living memory of many in my country we were conscious not only of the protection given to us against external aggression by our Mother Country, but of the general assistance given us in achieving our own complete self-government. I do hope it will not be misunderstood if I say that it could well be that those under such constant attack may be forced to engage in the distasteful task of pointing to the existence of oppressed people in countries now juridically independent.Footnote 31
Sir Percy had long been concerned about Soviet designs in South East Asia and was a leading figure in the Liberal Party's plan to outlaw the Communist Party of Australia.Footnote 32 In the same year that Sir Percy sought to outlaw the Communist Party of Australia, the South African Parliament passed an Act outlawing the Communist Party of South Africa.Footnote 33 In his landmark speech on Australia's foreign policy that Sir Percy delivered to the House of Representatives in March 1950, he echoed Churchill when he warned that Soviet policy was global in character, controlled from the centre, and sought the universalization of Communism.Footnote 34
3.1. Sir Percy's article in Foreign Affairs
Given the Soviet Union's role in promoting self-determination in the Western colonies but not in its own sphere of influence, Sir Percy had reason to believe that self-determination was a Communist doctrine being advanced at the UN with a view to ending European colonialism and advancing ‘Soviet imperialism’. What else could explain the forthright anti-Communism that Sir Percy expressed in the pages of Foreign Affairs in 1951?
Written at the height of the Korean War (1950–1953), just before Sir Percy was appointed Australia's Ambassador to the United States, he warned Americans that:
International Communism is not passive. Its agents move among the Asian people preaching doctrines of national independence, of reform, of social equality, of economic development, and the elimination of the evils of landlord-tenant relations and other material burdens that weigh upon the people.Footnote 35
In his view, Communism was an instrument of internal intervention.
It works with and among the people. It exerts its influence on the minds and political life of the community by methods which the non-Communist world must avoid at peril of arousing the resistance of government and people determined to reject all forms of ‘Western imperialism’.Footnote 36
He thought that Asian nationalism was particularly susceptible to Communism:
Some examination of the main ingredients in Asian nationalism will suggest how readily a Communist minority can win support and eventual power when it is organised internally and is prepared to use force in pursuit of its aims, and is also subtle in its appeal to the desires and fears of the masses.Footnote 37
Communism was attractive to Asians, Spender reasoned, because liberalism was difficult to reconcile with a social system centring in most cases upon the family unit within the larger organism of paternalistic government.Footnote 38
Sir Percy was concerned with Asian nationalism in the 1950s given the conflicts in Korea, Indonesia, and Indochina, and Australia's quest for an arc of security from Malaya to the Pacific, but his concerns were valid elsewhere.Footnote 39 It does not appear to have occurred to Sir Percy that Communists like Ho Chi Minh and Mao Tse-tung only turned towards Communism after the West had rejected their appeals for self-determination.Footnote 40 In the black-and-white world that Sir Percy inhabited in 1950s America, liberalism and Communism were irreconcilable.Footnote 41 There could be no middle path. Political neutrality in the Cold War was therefore a dangerous deception, as Sir Percy observed:
[T]here is a belief that the new nations of Asia stand exposed to the continuous pressure of Soviet Communist intervention, and that their prospects of withstanding it are not encouraging so long as they resist cooperation with the non-Communist world, particularly since an agency of Communist penetration lies ready at hand in the Chinese minorities throughout Southeast Asia. According to this view, political neutrality in the global conflict, which many Asians see as the only condition under which they can apply themselves to the immense task of improving economic welfare, is a dangerous deception. Communist imperialism will not accept a power vacuum in Asia.Footnote 42
Although Sir Percy was principally concerned with Asian Communism when he wrote this article, the Cold War would move from Asia to Africa in the 1960s during the South West Africa Cases.Footnote 43 Notably, after the Sharpeville Massacre (21 March 1960) the South African Government declared that the Pan-Africanist Congress of Azania (PAC) and the African National Congress (ANC) were illegal organizations under the Suppression of Communism Act.Footnote 44
3.2. Sir Percy addresses the American Society of International Law
In 1952, Sir Percy gave a lecture on ‘Law, Morality, and the Communist Challenge’ to the annual meeting of the American Society of International Law.Footnote 45 Sir Percy explained that he did not speak of Communism as a political philosophy but of the practice of ‘imperialistic Communism’ that was ‘challenging the free world’.Footnote 46 In Sir Percy's view, Moscow had been challenging the basic ‘substratum of the Charter’ since 1946.Footnote 47 This was the year when Churchill gave his ‘Iron Curtain’ speech. Even more disturbing, in Sir Percy's view, was the influence that Communist Russia was having on the new nations of the UN:
[W]ithin the United Nations today there are some nations which – perhaps unconsciously taking a leaf from Russia's book – are less concerned about the principles of the United Nations than they are with getting something for themselves out of the United Nations. There are some nations which are less concerned with obligations under the Charter than they are with rights under the Charter. And there are a few nations, I regret exceedingly to say, which are prepared to use the United Nations, exercising pressure, exercising duress, exercising means which are commonly used by Russia, for the purpose of advancing their own ends.Footnote 48
Sir Percy was not alone in seeing self-determination as a Communist doctrine that was being used to advance Soviet imperialism. As W.J. Hudson explained: ‘Anti-colonialism, necessarily anti-Western in part, was made almost entirely anti-Western by the Cold War and Australia saw herself very much as a Western power sharing the fate of the West.’Footnote 49
The view that the Soviet Union had hijacked the cause of anticolonialism through its vision of self-determination continued to be advanced in Australia long after Sir Percy had left the Foreign Service. Following the adoption of the Decolonization Declaration, four years after Sir Percy had been elected to the ICJ, Australia's Department for External Affairs requested a Departmental study paper on Communist attitudes to self-determination.Footnote 50 The author of the study paper concluded that the Soviet Union's support for self-determination in Africa and Asia was inconsistent and tactical; its aim was to inspire ‘world socialist revolution’ and amounted to ‘naked opportunism’.Footnote 51 As the author of the study paper observed, the Soviet Union was very flexible when it came to defining ‘the people’ entitled to self-determination.Footnote 52
What Australia's Department for External Affairs and other foreign ministries did not appear to appreciate was that many of the leaders in Africa and Asia found Communism attractive, not because they wanted to emulate the politics of the Soviet Union, China, and Cuba, but because Communism was an ideology that appeared to support their claims to independence and included Africans and Asians as peoples entitled to self-determination.Footnote 53
3.3. Australia defends South Africa at the UN
Throughout the 1950s, Australia opposed African self-determination and stood by South Africa despite increasing international criticism of apartheid. Tucked away with Sir Percy's papers at the National Library of Australia is a copy of a speech delivered on 14 November 1952 by Patrick Shaw, Australia's delegate to the UN Political Committee defending South Africa's right to pass racially discriminatory legislation within its domestic jurisdiction:
With reference to the South African legislation, I would remark merely that each country has its own political and moral philosophy, its own economic and social history and consequently its own laws and customs. It would be remarkable if we here were collectively or individually to approve fully all the laws and customs of other countries. In fact, there may be cases where a number of us disapprove quite strongly, but the merit or demerit of domestic laws is not the point at issue. The point is whether they come within the competence of the United Nations Charter.Footnote 54
When the speech was delivered, Sir Percy was Australia's Ambassador to the United States, but he was also chairman of Australia's delegation to the UN where he exerted great influence. According to David Lowe, Sir Percy had requested the post of Ambassador when he realized there was no immediate prospect of Robert Menzies stepping aside as Prime Minister to make way for him.Footnote 55 Although the speech was delivered by Shaw, who was then permanent delegate to the European headquarters of the UN, it is likely that Spender would have reviewed it, given that he was chairman of Australia's delegation to the UN. Sir Percy was known to ‘keep a close eye on all of the most significant matters’Footnote 56 in the cables between Canberra and Washington, and ‘regarded himself less an ambassador than a second Minister of External Affairs’.Footnote 57 This was much to the chagrin of Richard Casey, Sir Percy's successor, whose cables to Spender ‘soon bore Menzie's signature’ in addition to his own.Footnote 58
Australia did not think that the UN had the competence to pass judgment on South Africa's legislation on the basis of the provision enshrined in Article 2(7) of the Charter, which provides:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter[.]Footnote 59
As Annemarie Devereux explains, Sir Percy was the ‘driving force’ behind Australia's statements opposing self-determination and defending South Africa on the basis of the domestic jurisdiction provision in Article 2(7) of the UN Charter throughout the 1950s.Footnote 60
Sir Percy and other Australian officials probably also had Australia's restrictive immigration policy in mind in formulating Australia's position towards South Africa's right to adopt its own legislation. In 1950, Sir Percy told the House of Representatives in Canberra that ‘the White Australia Policy was based on the homogeneity of our people and that policy would be continued, whatever government was in power in Australia’.Footnote 61 When Sir Percy delivered this speech, he had just returned from a goodwill trip to Asia where he had attempted to convince Australia's sceptical neighbours that the White Australia Policy was not targeted at them. Judging by the press reactions in these countries he was not successful. The Singapore Morning Post, for example, warned Australians: ‘Asia's anger is growing faster than Australia's population. One day the people of Asia will be compelled to rise and crush this insulting ideology.’Footnote 62 As Sean Brawley explains, the Liberal Party did not repeal the most egregious elements of Australia's restrictive immigration legislation after they won the 1949 election which ‘continued to be as discriminatory as their Labor predecessors had been’.Footnote 63
The White Australia Policy was a contentious issue between Australia and India with New Delhi comparing Australia's policy to those of South Africa. In 1946, India even ‘threatened a trade embargo and promised to turn up the heat on the White Australia Policy in the General Assembly’.Footnote 64 Australia subsequently abstained from a resolution criticizing South Africa – shocking South Africa and the old dominions. Australia would only resume its policy of voting against resolutions critical of South Africa when the Liberal government came to power following the 1949 general election. Australian votes at the UN would remain pro-South African until Australia found itself isolated in the General Assembly in 1961.Footnote 65 This was the year South Africa left the Commonwealth. Tellingly, South Africa's lawyers referred favourably to the White Australia Policy in their Rejoinder to the Applicants’ arguments in the South West Africa Cases as a necessary measure of ‘devising immigration policies in such a way as to preserve Australia's national homogeneity and to prevent the immigration of inassimilable elements’.Footnote 66 It was not until 1967 that the Holt Government saw Australians vote by a 90 per cent majority to change the Australian constitution to include all Aborigines in the national census and allow the Federal Parliament to legislate on their behalf.Footnote 67
Sir Percy even received support from South Africa's Prime Minister J.G. Strydom – known for his uncompromising Afrikaner nationalist views – during his election to the ICJ in 1957, even though South Africa was boycotting the UN at the time.Footnote 68 Eric Louw, South Africa's Foreign Minister had to make a special exception to lobby for Sir Percy.Footnote 69 The exception was worth making because South Africa realized that it ‘would be unlikely to get a more favourable judge than Sir Percy on legal issues affecting Article 2(7) and South Africa’.Footnote 70
Invoking Article 2(7) was also useful to Australia in contesting Indonesia's claims to Dutch New Guinea/Irian Jaya. During the Cold War, control of the whole of the island was considered essential to Australia's security.Footnote 71 In his landmark speech to the House of Representatives in 1950, Sir Percy explained that Australia would do whatever was necessary to defend New Guinea and the rest of Melanesia from attack to avoid a repeat of the Second World War:
These islands are, as experience has shown, our last ring of defence against aggression, and Australia must be vitally concerned with whatever changes take place in them. It is not to be assumed by any one that should fundamental changes takes place in any of these areas, Australia would adopt a purely passive role. I have in mind particularly, but not exclusively, New Guinea, which is an absolutely essential link in the chain of Australian defence. The Australian people are deeply interested in what happens anywhere in New Guinea. As regards Australian New Guinea it is our duty to ensure that it is administered and developed in a way best calculated to protect the welfare of the native inhabitants and at the same time to serve Australia's security interests.Footnote 72
Note that Sir Percy was not just speaking about Australian New Guinea but New Guinea as a whole. In 1950, this would have included Dutch New Guinea. For Sir Percy, New Guinea was as important to Australia as South West Africa was to South Africa. Moreover, Australian rule in Australian New Guinea was not so different from South Africa's rule in South West Africa.Footnote 73
3.4. Self-determination in the service of world Communism
On the day Patrick Shaw delivered his statement on South Africa to the Political Committee, Sir Percy was giving a statement to the Third Committee on a draft resolution that sought to apply self-determination to non-self-governing territories and not just to trust territories, which he saw as a dangerous departure from the Charter. In this speech, Sir Percy admitted that:
The question of minority groups in a country is a difficult one, and is one to which the United Nations has given and is still giving much consideration, and it cannot be solved by a facile reference to the principle of self-determination. In other words, in the modern world in which we dwell, a country must be of such a size, in area and population, and in natural and potential economic resources, as to permit it to survive. I know the leaders of one great country, the Soviet Union, would welcome the fragmentation of existing nations, since it would facilitate their aggressive designs, but we should not allow the benign principle of self-determination, to be used in the interests of world communism.
An attempt is being made in the resolution before us to distort the principle of self-determination further, by confusing it with the relationship between territories, whether Trust Territories or non-self-governing territories, and the Powers administering them. This relationship is a distinct one, and indeed, the Charter has devoted three Chapters [Chapters XI, XII and XIII] to principles and procedures applicable in such cases. These chapters are carefully drafted, and represent a workable code for ensuring that territories develop and advanced towards such a state when they can govern themselves. To extend or alter this code is both dangerous and unwise. This is particularly so when it is done in disregard of the Charter. To endeavour to apply the principle of self-determination, which has nothing to do with the attainment of self-government by territories, or to extend or alter these provisions, will not serve the best interests of the territories, nor the United Nations.Footnote 74
Sir Percy was insisting on maintaining the distinction between self-government that had found expression in the League of Nations Mandates system and in Chapters XI, XII and XIII of the UN Charter as opposed to the Soviet Union's doctrine of self-determination that sought immediate independence for all territories regardless of whether they were categorized as trust or non-self-governing territories. But he did not get his way. Instead, the General Assembly adopted Resolution 637 (VII) A, which recommended that the states responsible for the administration of non-self-governing and trust territories ‘take practical steps, pending the realization of the right of self-determination . . . to ensure the direct participation of the indigenous populations in the legislative and executive organs of government . . . [and] to prepare them for complete self-government or independence’.Footnote 75 This is quite different from what the UN Charter says about non-self-governing territories in Article 73, which uses the word self-government, not self-determination. The association of self-determination with the necessity of taking practical steps to ensure the direct participation of the indigenous populations in the legislative and executive organs of government with a view to preparing them for complete self-government or independence posed a conundrum for those states like Australia, Canada, South Africa, and the United States, which did not allow their indigenous populations to participate in the legislative and executive organs of government in the 1950s.
Part C of the same resolution called on the Economic and Social Council to ask the Commission on Human Rights to continue preparing recommendations concerning international respect for right of peoples to self-determination.Footnote 76 This took the form of a draft convention on human rights to which it was proposed that self-determination find expression in the very first article. Importantly, the draft did away with the distinction between trust and non-self-governing territories that would eventually find expression in Common Article 1 of the Human Rights Covenants.Footnote 77 Unsurprisingly, given Sir Percy's punctilious interpretation of the UN Charter and his sensitivity towards self-determination he opposed the suggestion to include an article on self-determination in the draft Human Rights Covenants.
3.5. Self-determination is not a human right
Accordingly, in 1955, when the UN took up the General Assembly's recommendation to include an article on self-determination in the draft human rights covenant, Sir Percy, still chairman of the Australian delegation to the Third Committee, explained that he wanted to delete all references to self-determination. The reason for deleting the article on self-determination, in Australia's view, was because self-determination was not a human right:
Now it has been argued by several of my distinguished colleagues in this Committee who favour the inclusion of Article 1 in the Covenants, that self-determination is a condition for the enjoyment of basic human rights. This assertion can certainly not be upheld by reference to the Charter and it is certainly curious, as was pointed out a few days ago by the representative of the United Kingdom in his very comprehensive review of the issue before us, that the Universal Declaration of Human Rights which was adopted in 1948, did not contain an article on this so-called right of self-determination if, as is now contended, it is a condition for the enjoyment of all other rights.Footnote 78
What Sir Percy and the representative of the United Kingdom did not mention is that an article on self-determination was proposed for inclusion in the Universal Declaration of Human Rights by the Soviet Union in 1948 but this was opposed by the United Kingdom and the other European colonial powers at the time who prevented the proposal from being adopted.Footnote 79
4. Self-determination during the South West Africa Cases
Ethiopia and Liberia instituted proceedings against South Africa on 4 November 1960, six weeks before the General Assembly adopted the Decolonization Declaration on 14 December that defines self-determination.Footnote 80 Therefore, the Applicants could not refer to the Decolonization Declaration in their Application but had to argue instead that South Africa was:
[S]uppressing the rights and liberties of inhabitants of the Territory essential to their orderly evolution toward self-government, the right to which is implicit in the Covenant of the League of Nations, the terms of the Mandate, and currently accepted international standards, as embodied in the Charter of the United Nations and the Declaration of Human Rights.Footnote 81
The Declaration of Human Rights was a reference to the Universal Declaration of Human Rights, which in contrast to the Draft Human Rights Covenants, does not mention self-determination.
Accordingly, the Applicants argued that actions by the Union of South Africa breached its obligations under Article 2 of the Mandate for South West Africa and Article 22 of the Covenant of the League of Nations – neither of which mention self-determination.Footnote 82
4.1. The Applicants omit the Decolonization Declaration
Importantly, Ethiopia and Liberia did not reference the Decolonization Declaration in the Memorial they submitted to the ICJ on 15 April 1961, even though this was submitted to the ICJ five months after the UN General Assembly had adopted the Decolonization Declaration on 14 December 1960.Footnote 83 The omission of the Decolonization Declaration from the Memorial submitted by Ethiopia and Liberia was significant, as the General Assembly would make explicit reference to the Decolonization Declaration in the resolution revoking the Mandate in 1966 following the ICJ's decision in the second phase of the South West Africa Cases.Footnote 84
The omission of the Decolonization Declaration in the Memorial is surprising given that Ethiopia and Liberia claimed in the same document that ‘the Union, by word and by action . . . has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory’.Footnote 85 The applicants had replaced the word ‘self-government’ in paragraph H of the Application Instituting Proceedings with ‘self-determination’ in paragraph 5 of the Memorial. Gone was the reference to the ‘orderly evolution toward self-government’ that had been replaced with an explicit reference to self-determination that might not be so orderly. The decision to include a reference to self-determination in the Memorial without referring to the Decolonization Declaration is startling when we bear in mind that self-determination had just been defined in that declaration, which made headline news all over the world.Footnote 86
In the Memorial, the reference to ‘the orderly development of self-government in the territory’ was changed to the ‘duty to accord full faith and respect to the international status of the Territory’.Footnote 87 The reference to ‘full faith’ and ‘respect’ for the status of the territory appeared to imply that South Africa was obliged to terminate the Mandate as soon as possible. When we consider that the applicants had also asked the Court to adjudge and declare that South Africa cease practising apartheid,Footnote 88 the conferral of self-determination on the people of South West Africa would have resulted, once South Africa had ceased practising apartheid in South West Africa and once ‘full faith’ and ‘respect’ had been accorded to the territory, in political power being transferred from the European minority to the African majority.
The leading South African counsel, D.P. de Villiers, had clearly done his homework and skilfully played to Sir Percy's concerns by linking Ethiopia's and Liberia's demands for self-determination in South West Africa to Communism, alleging that they sought the ‘abolition of all differentiation between groups, treatment of the whole population as a unit, and universal adult male suffrage’ which South Africa noted had ‘also been pressed by majority groups at the United Nations in recent years’.Footnote 89 South Africa also claimed that Ethiopia and Liberia wanted to create ‘one single and integrated society in which all individuals have identical rights’.Footnote 90 Ernest Gross responded by describing this claim as a parody of the applicant's true position (‘no such society has ever existed in the history of man’Footnote 91 ) and referred to the judgments of various UN organs in support of their claims.Footnote 92
Although the words self-government and self-determination were used interchangeably in the interwar years, the concept of self-determination had acquired a new and different meaning on 14 December 1960 in the Decolonization Declaration. And this is where the problem lay, because self-government and self-determination are, in fact, very different things.
4.2. Political change outside the court room
Arguably, for many of the judges in The Hague, steeped in the history of nineteenth century liberalism, the demand for majority rule was too much. The early 1960s would have been a frightening time for some of these judges who were not acclimatized to the social unrest and political changes that were unfolding before their eyes not only in the colonies but also in the major cities of North America and Europe. Between 1960 and 1966, there was the Cuban Missile Crisis, President John F. Kennedy and Malcolm X were assassinated, Congress passed the Civil Rights Act, and the United States became involved in the Vietnam War to protect South Vietnam from North Vietnamese Communist ‘aggression’ following the Gulf of Tonkin Resolution.
On the African continent, the Algerian War of Independence was also galvanizing the cause of anticolonialism and provided further succour to the call for self-determination. The Cuban Revolution would have also been viewed with suspicion given Castro's close relations with the Soviet Union. Khrushchev was pictured with Castro and Malcom X at the Hotel Theresa in Harlem, New York, in the same session of the General Assembly that produced the Decolonization Declaration.Footnote 93 In one of the longest plenary speeches in UN history, delivered by Castro to the General Assembly that produced the Decolonization Declaration, he explained that the right of a people to self-determination, by means of revolution if necessary, to throw off colonialism or any type of oppression, was recognized in Philadelphia with the American declaration of 4 July 1776.Footnote 94 Sir Percy had spent many a holiday in Cuba before the Revolution enjoying the delights of Havana when he was Australia's Ambassador to the United States.Footnote 95 It is doubtful whether he would have viewed the Cuban Revolution with equanimity.
Sir Percy's opposition to self-determination in the draft Human Rights Covenants has already been mentioned. He would not soften his opposition to self-determination when he became a Judge. We can have an inkling of what was going on in the minds of close confidants of Sir Percy during the South West Africa Cases, and what they thought of the political and social changes taking place outside the court room, from correspondence Sir Percy kept in his papers at the National Library of Australia. Consider the correspondence Sir Percy kept with Walter Crocker, Australia's Ambassador in The Hague. In a letter dated 23 September 1963, just before Sir Percy was elected President of the Court, Crocker wrote Sir Percy a reply in response to Sir Percy's request for more information on the principle of ‘one man, one vote’. The letter was written after Sir Percy had persuaded the Court to question Zafrulla's suitability to become Judge Ad Hoc in the first phase of the cases but came before Zafrulla's re-election when Sir Percy would pressure Zafrulla to recuse himself.Footnote 96 Ambassador Crocker explained to Sir Percy that:
A considerable number of the evils from which we now suffer come from the French Revolution, including Communism or Bolshevism. But some of the ideas go back much further, e.g., the movements launched by the translation of the Bible into the vernacular by the Lollards and others (cf. Jack Cade's or the Peasant's Revolt), and even into the heresies of the Middle Ages . . . The theme of ‘One Man One Vote’ is worth your pen and your intelligence. It has become enormously mischievous, and with the increasing pressure of the population problem, the pampered Welfare State urban proletariat, and Admass societies (i.e., mass culture), risks wrecking democracy – risks paving the way for plebiscitary dictatorships of tyrannies.Footnote 97
After the 1966 decision was delivered, a similar sentiment was conveyed to Sir Percy by Basil Hone, a friend from Havana, where Sir Percy had spent many a holiday before the Revolution:
When I had the pleasure of meeting you at the British Embassy ten years ago, I offered one piece of advice. It was to beware your dealings with those countries which do not play cricket! Reading of your decisive vote on the subject of S.W. Africa, I wish to convey my admiration for the courage your decision showed, in which countless of our countrymen join. Our hard won rights to live under the Rule of Law are often overlooked. To grant equal voting rights to everyone, however, ignorant or unprepared they may be, is one of our greatest dangers.Footnote 98
Sir Percy kept these letters along with other correspondence, including letters from Sir Gerald, and the scorecard for the 1966 decision, in his personal files that have been preserved at the National Library of Australia.Footnote 99 He therefore must have attached some importance to them.
4.3. The Soviet Union and South Africa
The view that ‘one man, one vote’, risked wrecking democracy and paving the way for plebiscitary dictatorships of tyrannies, and that granting equal voting rights to everyone was dangerous, would find support in South Africa's pleadings: ‘experience has shown that major ethnic differences need much more delicate handling than the crude principle one man one vote in an integrated society which is proposed by the Applicants’.Footnote 100 South Africa referred to examples in other African countries where ‘the creation of dictatorial single party systems of government in a number of African territories may well be the necessity of curbing inter-group frictions’.Footnote 101 F.W. de Klerk, the last head of state of South Africa under the apartheid era, recalls that in the 1960s South African newspapers:
were full of horror stories brought back by white refugees from the Congo and other newly independent territories, where the hasty transfer of power to former revolutionaries had led in many instances to the collapse of effective government and law and order.Footnote 102
He added: ‘I – like most whites – was also deeply concerned about the influence of the South African Communist Party on the ANC’.Footnote 103
Dictatorial single party systems of government were associated with Communist regimes during the Cold War, because Lenin had argued that a dictatorship of the proletariat was the intermediary period that was necessary for states to pass through in their transition from capitalism to Communism.Footnote 104 From a young age, Lenin had been opposed to the United States policy of racial segregation.Footnote 105 He had also been interested in developments in South Africa because of the size of its indigenous labour force, its small European population, and its importance to the global economy.Footnote 106
In 1928, Comintern's Sixth Congress decreed that:
[T]he Communist Party of South Africa must combine the fight against all anti-native laws with the general political slogan in the fight against British domination, the slogan of an independent native South African Republic as a stage towards a workers’ and peasants’ republic with full rights for all races, black, coloured and white.Footnote 107
This resolution was drafted by James La Guma, one of the leaders of the Communist Party of South Africa, and Nikolai Bukharin, chairman of the Comintern.Footnote 108 The Communist Party of South Africa was a branch of the Communist International.Footnote 109
In 1949, the radical Programme of Action, adopted by the ANC under the influence of its Youth League contained the demand for self-determination and proclaimed, ‘national freedom’ as its main principle. ‘By national freedom’ the document continued, ‘we mean freedom from White domination and the attainment of political independence’.Footnote 110 In 1955, the Congress of the People, organized by the ANC and its allies, adopted the Freedom Charter.Footnote 111 The Freedom Charter demanded full equality for all racial groups – not just political and social equality, but economic equality as well. These goals were very close to the goals of the Communist Party.Footnote 112 Also in 1955, the Soviet Union terminated its diplomatic relations with South Africa in protest of its apartheid laws.Footnote 113 According to Tom Lodge, the South African Communist Party maintained its links with the Soviet Union throughout the 1950s even though it had been banned, and sponsored visits for members of the party to travel to the Soviet Union and the German Democratic Republic for ‘technical training’.Footnote 114 Soviet officials even provided money for the purchase of a farm in Rivonia, one of Johannesburg's most affluent suburbs, to serve as headquarters for the ANC in the early 1960s.Footnote 115 This was where Walter Sisulu, Govan Mbeki, Raymond Mhlaba, Elias Motsoaledi, Ahmed Kathrada, Denis Goldberg, Harold Wolpe, and other high-ranking leaders from the ANC and the Communist Party were captured.Footnote 116
On 20 January 1960, 11 months before Ethiopia and Liberia instituted proceedings against South Africa at the ICJ, the Central Committee of the Communist Party of the Soviet Union issued a secret decree On the Broadening of Cultural and Public Ties with Negro Peoples of Africa and Strengthening of Soviet Influence on these Peoples.Footnote 117 In July 1960, Yusuf Dadoo, chairman of the underground South African Communist Party visited Moscow. There he discussed the trade boycott of South Africa, the opening of Radio Moscow broadcasting to South Africa, the distribution of the Africa Communist in the Soviet Union, and other matters, including putting forward a policy of armed struggle.Footnote 118 In the Rivonia trial (1963–1964), Mandela and the others captured at Rivonia were accused, inter alia, of conspiracy, engaging in guerrilla warfare aimed at violent revolution, and furthering the aims of Communism.Footnote 119 The trial was widely reported in South Africa and overseas.Footnote 120 On 25 March 1966, four months before the ICJ delivered its decision in the second phase of the South West Africa Cases, Ambassador Nikolai Fedorenko, the Soviet Union's permanent representative to the UN in New York, wrote a letter to UN Secretary-General U Thant explaining that:
[T]he Soviet Union supports the use of the most determined measures, including force, against the South African government in order to compel it to apply the principles of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples to South-West Africa.Footnote 121
As Australia's chief diplomat in the 1950s, Sir Percy had security clearance and would have been privy to information circulated by Australia's Security Intelligence Organisation.Footnote 122 We can only speculate what information Sir Percy would have been privy to when he was working at the UN, but it is likely that it would have addressed the Soviet Union's clandestine activities in South Africa as well as its clandestine activities in South East Asia.Footnote 123
4.4. The law of yesterday, not today
The political orientation of the UN had undergone a fundamental change in the 1960s with many of the newly independent states demanding equal rights and majority rule. These changes were not limited to the colonies but were also influencing developments in the United States that had adopted the Civil Rights Act in 1964. The applicants in the South West Africa Cases were basing their arguments on recent legal changes and innovations that were new, if not radical, in the early 1960s. In contrast, South Africa was resisting these changes.
It is worth remembering that human rights law was in its infancy in the 1960s. It was still lex ferenda. The applicants, therefore, had to prove that a norm of non-discrimination existed. This was a tall order at the time because the norm could only be shown to exist by reference to customary international law whose development is based on state practice and opinio juris.Footnote 124 This meant that the ICJ would have to consider the views of those states that had recently joined the UN in its assessment of customary international law. Many of these states had aligned themselves with the Soviet Union at the UN in opposing colonialism.
Given that human rights law was in its infancy during the South West Africa Cases, Ethiopia and Liberia did not have much to rely on by way of customary international law, and could only reference as general principles of law the following: the Universal Declaration of Human Rights; the Draft Declaration on Rights and Duties of States; the Trust Territory Agreements; other Resolutions of the UN General Assembly (not including the Decolonization Declaration); Resolutions of the Security Council; the Constitution of the International Labour Organization and its resolutions; the Draft Convention on the Elimination of All Forms of Racial Discrimination, (which mentions the Decolonization Declaration in its preamble); the Draft Covenant on Civil and Political Rights and the Draft Covenant on Economic, Social and Cultural Rights (both of which explicitly mention self-determination in Common Article 1); and regional human rights treaties and declarations.Footnote 125 And it is significant in this regard, although the applicants do not mention it, that the definition of self-determination in Common Article 1 to the Human Rights Covenants is taken from paragraph 2 of the Decolonization Declaration.
Referencing the Draft Human Rights Covenants would not have been viewed favourably by Sir Percy, who had spent a large part of his diplomatic career vocally attacking the claim that self-determination was a human right in the Third Committee of the UN.
5. The 1966 judgment: A shock and surprise
The South West Africa Cases would have provided a good opportunity to address the formation of customary international law in light of the changing composition of the UN General Assembly, especially the opening for signature and ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on 21 December 1965.Footnote 126 They would have also provided a good opportunity to address the status of self-determination in international law that would find expression in the Human Rights Covenants.Footnote 127 But, as is well known, the majority refused to address the merits. Only Judge Van Wyk addressed the merits of the cases from the perspective of the majority:
The detailed and uncontradicted evidence placed before this Court reveals that these resolutions [referring to UN resolutions and reports about South West Africa] were mainly the result of concerted action, by a large number of African States, assisted by many others, designed to bring about the immediate independence of South West Africa as a single unit to be governed by the indigenous peoples on the basis of universal adult suffrage.Footnote 128
This would appear to indicate that there was a perception by some of the Judges, in addition to Sir Percy, that these cases were part of a concerted effort by the Afro-Asian Bloc to further the aims of international Communism by applying self-determination in South West Africa with a view to ending white minority rule.
On 27 October 1966, the General Assembly reacted to the decision by revoking South Africa's Mandate over South West Africa.Footnote 129 After affirming its right to revert to itself the administration of South West Africa, the General Assembly reaffirmed that:
[T]he provisions of General Assembly Resolution 1514 (XV) [the Decolonization Declaration] are fully applicable to the people of the Mandate territory of South West Africa and that, therefore, the people of South West Africa have the inalienable right to self-determination, freedom and independence in accordance with the Charter of the United Nations.Footnote 130
Only in paragraph 3, did the General Assembly declare that South Africa had ‘failed to fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the moral and material well-being and security of the indigenous inhabitants of South West Africa and had, in fact, disavowed the Mandate’.Footnote 131 The General Assembly then purported to terminate the Mandate.Footnote 132
6. Conclusion
During the South West Africa Cases (1960–1966) the model of self-government in the League of Nations Mandates system that finds expression in Chapters XI, XII, and XIII of the UN Charter and the model of self-determination that finds expression in the Decolonization Declaration overlapped. This article has shown that, to Sir Percy the arguments advanced by the applicants would have looked like the arguments advanced by the Soviet Union in the 1940s and 1950s that he had observed first hand as Australia's chief diplomat to the UN in the 1950s. The arguments advanced by Ethiopia and Liberia arguably would have appeared problematic to him because they were directed at the nature of the South African regime in South West Africa.Footnote 133 The Applicants were arguing that South Africa was not only required to withdraw from South West Africa by ending the Mandate, but that it was also obliged to dismantle the apartheid regime it had established in the territory. This was an argument that had implications for the nature of the system in South Africa itself.
It would have been difficult for the majority to have addressed the merits of the arguments advanced by the Applicants in the South West Africa Cases without also taking the opportunity to say something about the status of the self-determination in international law and the process of forming customary international law. This meant they would have had to take into account the changing composition of the UN whose membership had increased from 82 members when Sir Percy first joined the court in 1957 to 122 members by 1966 when the judgment was delivered. The refusal of the court to address the status of self-determination in international law in the second phase was made all the more remarkable by the fact that within six months of the ICJ's decision in the second phase of the South West Africa Cases, the UN General Assembly adopted the Human Rights Covenants unanimously, including Common Article 1, which defined self-determination as the primordial human right that applied to both trust territories and to non-self-governing territories.Footnote 134
Sir Percy had misread the changing political scene in the 1960s that had been ushered in by the Decolonization Declaration. The political orientation of the international community had been fundamentally altered and could not be arrested by a single court decision, even if that court was the principal judicial organ of the UN. That Sir Percy went so far as to lecture his colleagues not to address the merits of the cases in their separate opinions was testimony to the pugnacious nature of his personality; one that did not escape comment.Footnote 135
