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[p.12]
The Court,
Composed as above,
After deliberation,
Having regard to Articles 31 and 68 of the Statute of the Court, and to
Article 83 of the Rules of Court,
Having regard to the resolution of the Security Council of the United
Nations dated 29 July 1970 requesting the International Court of Justice to
give an advisory opinion on the following question:
"What are the legal consequences for States of the continued presence of
South Africa in Namibia, notwithstanding Security Council resolution 276
(1970)?", [p 13]
Having regard to the written statements filed by the Governments of
Czechoslovakia, Finland, France, Hungary, India, the Netherlands, Nigeria,
Pakistan, Poland, South Africa, United States of America, Yugoslavia, and by
the Secretary-General of the United Nations,
Makes the following Order:
Whereas by a letter from the Secretary for Foreign Affairs to the Registrar
dated 13 November 1970, the South African Government made an application for
the appointment of a judge ad hoc to sit in the present proceedings, in
terms of Article 31, paragraph 2, of the Statute of the Court;
Whereas, in accordance with the terms of Article 46 of the Statute of the
Court, the Court decided to hear the contentions of the South African
Government, concerning its claim to be entitled to choose a judge ad hoc, in
closed hearings by the Court;
Having heard the contentions of the Government of South Africa at a closed
hearing held on 27 January 1971, notice of which had been given by the
Registrar to those States which had indicated their intention to present
oral statements in accordance with Article 66, paragraph 2, of the Statute
of the Court;
The Court
Decides, by ten votes to five, to reject the application.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-ninth day of January, one thousand nine
hundred and seventy-one, in eight copies, of which one will be placed in the
Archives of the Court, one will be transmitted to the Secretary-General of
the United Nations, and the others will be transmitted to the Governments of
the following States, namely: Finland, India, the Netherlands, Nigeria,
South Africa, United States of America.
(Signed) Zafrulla Khan,
President.
(Signed) S. Aquarone,
Registrar.
Judges Sir Gerald Fitzmaurice, Gros and Petr�n make the following Joint
Declaration:
We are unable to concur in the decision to reject embodied in the Order, for
reasons which we reserve the right to make known at a later [p
14]opportunity, inasmuch as the present question is, from certain aspects,
related to the substance of the matter on which an advisory opinion has been
requested of the Court.
Judges Oneyama and Dillard make the following Joint Declaration:
We are unable to concur in the decision of the Court. While we do not think
that under Article 83 of the Rules of Court the Republic of South Africa has
established the right to designate a judge ad hoc, we are satisfied that the
discretionary power vested in the Court under Article 68 of its Statute
permits it to approve such designation and that it would have been
appropriate to have exercised this discretionary power in view of the
special interest of the Republic of South Africa in the question before the
Court.
(Initialled) Z.K.
(Initialled) S.A. |
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