The Judicial control of mandates and its contrbution to the theory and practice of the mandate system with special reference to south-west africa(namibia)
Loading...
Date
2011-10-20
Authors
Dore, Isaak Ismail
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
The study has been divided into three Parts. Part I traces the evolution of the idea of international mandate up to the time when the Mandate System was established.
A brief survey is made at the outset of legal relations prevailing between Christian and non-Christian States of the pre-World War One era with special attention to the acquisition of colonies and the administration of dependent territories. Some consideration is given to the process of the secularisation of international law as a law applicable only between Christian States culminating in all dependent territories being granted the inter¬nationally recognized right to self-determination.
An outline is made of these developments up to the time when efforts were made by States on the international plane to protect by international treaties the rights of dependent peoples.
The Mandate System instituted by the League of Nations in 1920 was one such attempt. A detailed inquiry is made into the meaning and concept of "Mandate" in international law and the usefulness of private law analogies in the understanding of the concept of international mandate is assessed.
The first Part concludes with an examination of the juridical status of a mandated territory which is compared with the status of colonies and Protectorates in international law; the nature of the powers of a Mandatory is also discussed.
Part II discusses the methods used by the League for the implementation of the System, principally the supervision of the mandatory's administration by the League and the Permanent Court of International Justice (P.C.I.J.), later succeeded by the International Court of Justice (I.C.J.).
A detailed review is made of the role of the two Courts as instruments of judicial control of Mandates. Their work is studied from the jurisdictional angle. A critical appraisal is made of the handling by the P.C.I.J. of the jurisdictional issues in the Mavromatis cases, and by the I.C.J. of the jurisdictional issues in the South-West Africa cases, in the exercise of both its advisory and contentious jurisdiction. Issues raised by these cases, such as the juridical status of a Mandate Agreement in international law, the question of "legal interest - sufficient interest", the nature of the jurisdiction of the I.C.J. in the South-West Africa dispute, the rights of member States of the United Nations to invoke the jurisdiction of the I.C.J. in this dispute, are discussed whenever their discussion is considered useful in clarifying the jurisdiction of the I.C.J.
Finally a comparative study is made of the jurisdictional aspects of the South-West Africa Advisory Opinions and Judgments.
Part III reviews the legal situation obtaining under the Charter of the United Nations. Special attention is paid to the applicability of Chapter XII of the U.N. Charter to South-West Africa. The question as to whether South Africa is under an international obligation (under the Charter) to place the territory under the U.N. trusteeship system is examined in detail. The pronouncements of the I.C.J. on this question are reviewed critically.
The nature of the jurisdiction of the United Nations over the dis-puted territory is contrasted with that of the League, and an inquiry is made as to whether U.N. jurisdiction over the territory is legitimate even if it exceeds that of its predecessor. The pronouncements of the I.C.J. on this question are reviewed criti-cally. Relevant issues such as the termination of the South-West Africa Mandate by the U.N., its legality, and its effect on the status of the territory are discussed.
Lastly Mandates are viewed within the contemporary Law of Nations. The prospects of international adjudication on mandate questions in the changing law of nations is assessed
Description
Keywords
Judicial control--Namibia