I. THE SILENT JUDGE?

In many ways Zafrulla was an enigma. Despite spending nearly sixteen years on the ICJ, he did not write more than twenty pages in the shape of individual opinions or declarations.Footnote ⁸ To date, only one paper has been published about Zafrulla in a law journal in which the first Asian President of the Court was referred to as the “silent judge”.Footnote ⁹ But Zafrulla's reputation as the silent judge seems inapposite because he was anything but quiet when he was British India's representative to the League of Nations in 1939 and when he was Pakistan's first Foreign Minister and its Permanent Representative to the UN. This became most apparent from the speeches that he gave at the League of Nations when he condemned the USSR's invasion of Finland and in the United Nations when he criticized the UN Partition Plan for Palestine and India's policies in Kashmir.Footnote ¹⁰ These speeches made Zafrulla famous and he became an icon in the Arab world after he gave his speech on Palestine, which made him popular with the Arab masses, although notably not in his native Pakistan where he was attacked because of his membership of the Ahmadiyya Muslim community, a sect that is persecuted in Pakistan because of their purported refusal to believe in the finality of the Prophet Muhammad.Footnote ¹¹ And yet as Mehr Chand Mahajan, a former Chief Justice of India, observed, when the Kashmir dispute was addressed in the UN Security Council in 1949, Zafrulla's “brilliant advocacy stole a march over the Indian delegation”.Footnote ¹² Zafrulla effectively “turned the tables on India”.Footnote ¹³

The only paper in a law journal that has ever been published on Zafrulla is by Ijaz Hussain, a Pakistani scholar. This paper appeared in Archiv Des Völkerrechts in the year of Zafrulla's death. Hussain, who met Zafrulla in his twilight years, attributed the paucity of Zafrulla's separate and dissenting opinions at the ICJ to his years at the Federal Court of India, where the practice of writing voluminous separate opinions was apparently not common.Footnote ¹⁴ Accordingly, he argued that “his approach to the case before the Court was pragmatic and lawyer-like rather than philosophical or professorial”.Footnote ¹⁵ Hussain concluded his paper by suggesting that Zafrulla will “be remembered for playing a low-key and conservative role on the Court when many of his colleagues like Alvarez, Tanaka and others preached revolution”.Footnote ¹⁶

This paper challenges this assumption. There was a reason why Zafrulla was silent. As we shall see, Zafrulla faced opposition to his presence at the ICJ before being elected to the Court, due to his energetic political activity at the UN General Assembly where he had vocally attacked Western imperialism. This reputation would haunt Zafrulla and would cause him difficulties after he was elected to the Court, especially during the South West Africa cases in the 1960s when Zafrulla was forced to recuse himself.

This paper argues that Zafrulla's “silence” at the ICJ was deliberate: a form of protest and political calculation. For, in the lead up to Indian independence, Zafrulla had been a faithful servant of the British Empire. Zafrulla was knighted by King George V in 1935—a title he did not renounce after Pakistan became independent in 1947.Footnote ¹⁷ In many ways, Zafrulla epitomized Macaulay's injunction to the British government in his famous 1835 Minute on Indian Education, in which he implored the Raj to form an elite class of Indians in India: “Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect”.Footnote ¹⁸ Zafrulla studied law at King's College London. He spoke English fluently, along with Urdu and Arabic.

Despite Zafrulla's pro-British credentials, he was not afraid to speak his mind or to challenge “his betters” in the colonial service. As a judge on the Federal Court of India, Zafrulla acquired a reputation for being “the most strident critic of the [British] government from the bench”.Footnote ¹⁹ As Motilal Setalvad, who later became India's Attorney-General, recalled of his days appearing as a barrister before the Federal Court:

Zafrulla had publically sparred with Winston Churchill on constitutional proposals to accord India dominion status. Churchill, who resisted calls to dismantle the British Empire, respected Zafrulla for having the ability and courage to question him in a meeting of the Joint Select Committee of both Houses of Parliament which were addressing Indian reforms, and which would result in the adoption of the Government of India Act (1935).Footnote ²¹

As Pakistan's first Minister for Foreign Affairs and Commonwealth Relations, Zafrulla supported the cause of self-government for dependent peoples, and attacked the policies of the colonial powers “inside and outside the United Nations on the questions of Indonesia; the Italian colonies of Libya, Eritrea and Somaliland; Morocco and Tunisia; and her support to Egypt and Iran in their disputes with Britain”.Footnote ²² Zafrulla's support for the Iranian government's decision to nationalize its oil industry, and a speech he gave at a plenary session of the UN General Assembly in which he condemned the colonial powers for quashing nascent self-determination movements and praising the Eastern bloc countries for supporting self-determination in the Third World, particularly upset the British government—which prior to this speech had even considered appointing Zafrulla a Privy Counsellor, an exceptional gesture, which in those days was often conferred on Commonwealth heads of state.Footnote ²³ The British government may have also been unhappy when they learned that the US government was planning to enter into a security pact with Pakistan (without informing them) by flooding it with American arms and largesse, thus displacing Britain as the main power in the region.Footnote ²⁴ Some officials may have wondered, to what extent, if any, Zafrulla, as Pakistan's foreign minister, had a role in engineering this development.Footnote ²⁵

Consequently, in the light of his criticism of British imperialism, Zafrulla's candidacy for election to the ICJ to replace Judge Sir Benegal Rau—who had died in office—caused consternation in the Foreign Office.Footnote ²⁶ After much debate, Britain reversed its earlier support for Zafrulla and opposed his nomination in the 1954 election to the ICJ—although officially on the grounds that the prime minister had already publically pledged his support for Dr Pal, the Indian candidate, to Jawaharlal Nehru, the Indian prime minister. According to a confidential telegram sent from the Foreign Office in London to the United Kingdom Delegation to the United Nations in New York, where Zafrulla's candidacy was being considered, Fitzmaurice, as the senior legal adviser, complained that Zafrulla was not a man with “a judicial and balanced approach to things; indeed, rather the reverse”.Footnote ²⁷ It was also complained that Zafrulla “will not be amenable to anyone's influence. In fact, we should think that he will be extremely difficult to influence.” In contrast, Dr Pal:

It was Fitzmaurice's opinion that:

The tone and content of Fitzmaurice's strident criticism of Zafrulla surprised several Foreign Office officials who regarded Zafrulla highly.Footnote ³⁰ Evidently, something about Zafrulla particularly perturbed Fitzmaurice because Dr Pal had also attacked Western imperialism in his dissentient opinion in the Tokyo Tribunal, and yet he was not subject to the same opprobrium.Footnote ³¹ In any event, Fitzmaurice indicated to the Foreign Office his preference for a European over either Dr Pal or Zafrulla.Footnote ³² One can only surmise that the extraordinary venom directed at Zafrulla by Fitzmaurice might have been due to the fact that, unlike Dr Pal, Zafrulla had been close to the British establishment prior to his appointment as Pakistan's Foreign Minister. His speeches in the UN must have therefore really rankled Fitzmaurice—who might have been present for some of them when he visited the UK mission to the UN in New York.

What makes Fitzmaurice's aversion to Zafrulla surprising is that in 1946, the British government had supported Zafrulla's election to the ICJ, although he was defeated in the Security Council.Footnote ³³ Eric Beckett, who was then the Foreign Office Legal Adviser, had described Zafrulla “from the point of view of mere qualifications and ability, almost certainly head and shoulders above any candidate” from the “Mohammedan and Middle Eastern bloc”.Footnote ³⁴ As the Foreign Office observed, looking back to the elections in 1946 from the vantage point of 1954:

Although there is no evidence that Zafrulla was an Anglophobe (when he was not in Pakistan or New York, London was his main residence), Zafrulla may have been perceived as an Anglophobe or even as a “turncoat” by some Foreign Office officials, after he became an early champion of decolonization and nationalization in the Third World.

Tellingly, the Foreign Office had expected Dr Pal to win the election to fill the vacancy caused by the untimely death of Judge Rau.Footnote ³⁶ They were therefore quite surprised when their candidate lost to Zafrulla. According to the British Foreign Office, “Zafrulla Khan got in through some sort of bargain between the Arabs and the Moslem part of the Asian group with the Latin Americans”.Footnote ³⁷ The Foreign Office also noted that this time Zafrulla could count on the support of the US government in the Security Council.Footnote ³⁸ Clearly, Zafrulla had learned his lesson from his failure to get elected in 1946: if you want to be successful in United Nations politics, it is American support that counts, not British support. Zafrulla's early lesson in UN electoral politics would serve him well, as in his later years he would win several more elections to the ICJ and to high office in the UN General Assembly.

Fitzmaurice's vocal opposition to Zafrulla in the Foreign Office in 1954 did not wane when he was elected to the ICJ in 1960 (and knighted as “Sir Gerald”) to replace Lauterpacht, who died in office, where he found himself sitting on the bench beside Zafrulla. During the second phase of the South West Africa cases, Sir Gerald's opposition to Zafrulla led to pressure on Zafrulla from Sir Percy, the President of the Court, to recuse himself, although, as we shall see, he did not in fact do so. It is entirely possible that during these discussions Zafrulla was informed of Sir Percy's and Sir Gerald's opposition by a friendly member of the Court.Footnote ³⁹ Accordingly, in knowledge of this opposition, Zafrulla would have been wary of upsetting these judges and may have moderated his remarks and avoided areas of controversy until it was safe to do so. Sir Gerald's opposition to Zafrulla was also likely personal. He was probably envious that Zafrulla had been elected by his peers to become the Vice President in his first term at the ICJ, and later the President in his second term. Sir Gerald never attained either post despite being a judge at the ICJ for thirteen years.Footnote ⁴⁰ And on the last occasion when he could have become elected President, he lost to Zafrulla.Footnote ⁴¹

If, as this paper argues, Zafrulla's personal struggle at the ICJ should be analogized to the larger political struggle outside the Court, it is likely that Zafrulla would have steered himself away from political controversy, aware that he would be able to place himself in a position of influence at a later stage when the composition of the Court was more “balanced”. In other words, only after Sir Percy had stepped down from the Court in 1966, and after the composition of the Court had been modified to reflect the emerging nations in Africa and Asia would Zafrulla be able to produce the judgment he always wanted to. This he accomplished in the aftermath of the 1966 South West Africa Judgment,Footnote ⁴² when he was elected to become President of the ICJ in 1970, a position that enabled him and the majority on the bench to ensure a favourable decision in the legally innovative Advisory Opinion on Namibia in 1971. This was despite an attempt by South Africa to have him dismissed from the Court, along with two other judges, for allegedly being “biased” against South Africa.Footnote ⁴³ In other words, one reason why Sir Zafrulla acquired a reputation for being the “silent judge” may be due to efforts outside and inside the Court to have him removed. If this was the case then his silence could be attributed to an instinct for self-preservation, or the saying “the less said the better”.

II. ZAFRULLA'S FORAY INTO INTERNATIONAL POLITICS

Zafrulla was appointed Pakistan's first foreign minister at a time when international relations were undergoing a major upheaval. The UN was in its infancy. Its membership still reflected the “old world”, although the domination of the Western powers was being increasingly challenged. A Cold War had descended on Europe. In 1945, Germany and Korea were divided. There was revolution in China, Indochina, and Indonesia. In August 1947, British India was partitioned and three months later an attempt was made by the UN to partition Palestine. In North Africa, Moroccans, Algerians, Tunisians, Egyptians, and Libyans were clamouring for independence.Footnote ⁴⁴ In Southern Africa, there was a dispute between the government of South Africa and the governments of India and Pakistan over South Africa's discriminatory treatment of persons of Indian origin.Footnote ⁴⁵

The ICJ was not immune to these challenges. Legal disputes soon arose concerning membership in the United Nations, its immunities and privileges, whether the ICJ had replaced its successor, and whether League of Nations Mandates should be converted into UN Trusteeships.Footnote ⁴⁶ In the aftermath of World War I, the League of Nations had conferred Mandates on the victors of the war concerning the territories they captured from Germany and Turkey. After World War II, the Soviet Union and those states that had recently won their independence argued that all Mandates should be granted independence, and if not, they should be placed under the UN's Trusteeship system. However, Palestine and South West Africa were not transferred to the Trusteeship system.Footnote ⁴⁷

Although Zafrulla was not involved with the affairs of South West Africa until he became a judge at the ICJ, he was intimately involved in the UN debates on the proposal to partition Palestine in November 1947. There, Zafrulla was given the task of leading the effort to oppose the UN's plans and he was soon to become the darling of the Arab world.

In Zafrulla's mind, self-determination was not a principle but a legal right, which he associated with democracy, which he understood to mean majority rule. This is why Zafrulla opposed the partition of Palestine with such passion and why he opposed minority rule in South Africa. They were both born of British imperialism in which political power was devolved to minority settler communities.Footnote ⁴⁸ In the former case, this was due to the Balfour Declaration (1917), where Britain pledged to devolve political power to the Zionist Organization even though the population was overwhelmingly Palestinian Arab.Footnote ⁴⁹ Similarly, in South Africa, Britain had devolved political power to the White minority as a result of the Union of South Africa Act (1909), even though the population was overwhelmingly Black African.Footnote ⁵⁰

The situation in South West Africa mirrored that in South Africa; for the former was merely a vassal of the latter. The League of Nations had conferred Mandates on Palestine and South West Africa to Britain. Only in South West Africa did Britain allow South Africa to administer the territory as though it were its own. This is because, unlike Palestine, which was categorized as an A-class Mandate, South West Africa was categorized as a C-class Mandate, in which it would “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”.Footnote ⁵¹ In contrast, Palestine was situated in West Asia, where it had been a part of the Ottoman Empire for four centuries. As an A-class Mandate, its existence as an independent nation had been “provisionally recognized” by the League of Nations Covenant “subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone”.Footnote ⁵² Despite their different categorizations, in both Palestine and South West Africa there applied “the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant”.Footnote ⁵³

In the interwar years, the members of the League only paid lip-service to the wording employed in Article 22 of the Covenant of the League of Nations. They had little desire to grant the Mandates, let alone independence, to their colonies.Footnote ⁵⁴ The only A-class Mandate that was granted independence prior to World War II was Mesopotamia (Iraq) in 1933. It was only when a new world war became inevitable that Britain and France realized that they needed Arab support to defeat the Axis powers. They slowly came around to the realization that in order to secure such support they would have to grant the Mandates independence. Thus, Lebanon and Syria became independent in 1944 and Transjordan became independent in 1946.Footnote ⁵⁵

In Palestine, the situation was more complicated because of the policy enunciated by the British government in its 1917 Balfour Declaration, which led to the mass immigration of Jews into Palestine fleeing persecution in Nazi-occupied Europe. After the extermination camps were discovered, the survivors were encouraged to immigrate to Palestine, and the UN General Assembly—the composition of which in 1947 still reflected the interests of the colonial powers—proposed putting to vote a plan to recommend Palestine's partition in order to establish a Jewish state in a portion of the territory, alongside an Arab state in the remainder of the territory.Footnote ⁵⁶ An alternative plan that sought to confer independence on Palestine as a single territorial unit, which had been proposed by Subcommittee 2 where Zafrulla was the rapporteur, was defeated in committee and not put to vote in the Assembly.Footnote ⁵⁷ Zafrulla's analysis of the problems posed by the partition of Palestine formed the “chief inspiration” for the report that was produced by Subcommittee 2.Footnote ⁵⁸

In November 1947, the UN General Assembly convened to consider the proposal to partition Palestine. The debate was extremely acrimonious and lasted three days.Footnote ⁵⁹ The six Arab states that had attained independence by 1947 (Egypt, Lebanon, Iraq, Syria, Saudi Arabia, and Yemen) argued that the UN Partition Plan was illegal, and an attempt was made to refer a question to the ICJ challenging the authority of the UN General Assembly to partition Palestine when the majority of its inhabitants opposed partition.Footnote ⁶⁰

The Arab states that were independent in 1947 and who were present in the UN General Assembly debate on Palestine did not have an articulate spokesman. They embraced Zafrulla who effectively became the spokesperson for the Arab cause in Palestine. In his capacity as Pakistan's first foreign minister and its representative to the UN, Zafrulla questioned whether the vote would be a fair one due to allegations of vote rigging, and told the world's media that “[t]he United Nations is today on trial”.Footnote ⁶¹ Zafrulla reminded the UN General Assembly that pledges had been given to the Arabs during World War I concerning Palestine, and that if there were any doubts concerning the wording and legality of those pledges they could be resolved in seeking the answers to these questions from the ICJ.Footnote ⁶² He made the same point with regard to the Balfour Declaration, and suggested that a prior pledge that was inconsistent with a later pledge should be resolved by the ICJ. He then dismissed the argument that Palestine alone should be a refuge for Jewish survivors. He observed that the states which most desired this solution refused to allow the survivors access to their own countries.Footnote ⁶³

Zafrulla then made an argument that would bear an uncanny resemblance to the argument that would later be advanced by the ICJ in its Namibia Advisory Opinion in 1971. Zafrulla drew attention to Paragraph 4 of Article 22 of the Covenant of the League of Nations, which provided that the communities inhabiting West Asia that formerly belonged to the Turkish Empire “have reached a stage of development where their existence as independent nations can be provisionally recognized”. The only proviso was that this independence was “subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone”. As Zafrulla explained to the General Assembly, Palestine was now able to “stand alone”: “That stage of rendering administrative advice and assistance having been concluded, the legal position, is that Palestine, whose provisional independence has been recognized juridically, will be from that date independent.”Footnote ⁶⁴ Great Britain, the Mandatory Power, had already conceded independence by referring the Palestine Question to the UN in 1946, and the United Nations Special Committee for Palestine (UNSCOP) had reached the conclusion that Palestine must become an independent state. The only problem was whether Palestine should become independent in a single unitary state or whether it should be partitioned, as in the case of British India. The European countries favoured partition, whereas the former colonies opposed partition. In the end, partition was proposed, as the imperial powers still held sway in the UN General Assembly.Footnote ⁶⁵ It was not until 1960 that the UN General Assembly would pass its resolution on the granting of independence to colonial countries and peoples, which precluded partition as a method of decolonization.Footnote ⁶⁶

Coming from a country that had been recently partitioned by the British government, Zafrulla had a unique insight into the politics of partition. And this was an issue on which he had the support of India, which would also vote—along with Pakistan—against the UN's proposal to partition Palestine.Footnote ⁶⁷ For despite the bitter legacy of partition, “South Asians”, be they Indians or Pakistanis (or after 1971, Bangladeshis), had a shared history of European colonial rule, where they had been treated as second-class citizens or worse.Footnote ⁶⁸ Zafrulla came from a generation of Indians who had struggled for independence from British rule and who had closely followed developments in Palestine.Footnote ⁶⁹ In their minds, since the Arabs formed the majority of the population of Palestine and continued to own the vast majority of the land, it was only right that the identity of Palestine after independence remain Arab.Footnote ⁷⁰

Zafrulla's espousal of the Palestinian cause, and before then of the Pakistan cause before the Radcliffe Boundary Commission,Footnote ⁷¹ meant that he had to become adept at reading population statistics, and to familiarize himself with the League of Nations mandates system. He had to make the argument that self-determination meant majority rule; that the future of Palestine belonged to the majority of its people, and not to the minority settler community. He had to interpret the Covenant of the League of Nations creatively. He had to make an argument that international law did not remain stagnant, so that it would always accord with the interests of the colonial powers, but that law was evolutionary. Zafrulla's support for majority rule in 1947 was the same argument that would be employed by the African National Congress (ANC) in South Africa and the South West Africa's People's Organization in South West Africa (SWAPO). And Zafrulla's argument that international law had to take into account changes in the composition of the international community after decolonization was something that would form the basis for the ICJ's 1971 Opinion on Namibia. In other words, a strong case can be made that Zafrulla's early experience with the Palestine issue influenced his approach to the dispute over South West Africa.

III. ZAFRULLA'S FIRST TERM AT THE ICJ

Elected in 1954, Zafrulla was a judge at the ICJ until the end of his term in 1961. In that year, none of the outgoing judges was re-elected for a second term.Footnote ⁷² It was during Zafrulla's first term at the Court that Sir Percy would also be elected judge. Shortly after Sir Percy's election, Judge Klaestad was elected President, whilst Zafrulla was elected Vice President. In his autobiography, Zafrulla tells us that he played a very active role in his first term at the Court, and he drafted many of the judgments when Klaestad was President of the Court.Footnote ⁷³

It is noticeable that the two cases in which Zafrulla participated as judge, and which he did not mention at all in the English translation of his autobiography, were the two Advisory Opinions pertaining to South West Africa.Footnote ⁷⁴ (However, according to the Urdu version of Zafrulla's autobiography, he mentions that he drafted the Advisory Opinion in the Admissibility of Hearings along with Judge Read of Canada.Footnote ⁷⁵) The omission of these cases from the English translation of his autobiography may have been because he did not think that the cases were particularly memorable or of interest to English readers. Nonetheless, their omission is curious in the light of what would later transpire in the South West Africa cases.

To recap, South West Africa was a German colony prior to World War I. After Germany's defeat in that war, the League of Nations conferred on “His Britannic Majesty” a Mandate over South West Africa, “to be exercised on his behalf by the Government of the Union of South Africa to administer the territory”.Footnote ⁷⁶ The Mandate for South West Africa was categorized as “C-class”. In making it a C-class Mandate, the League of Nations considered that South West Africa needed extra tutelage of an undetermined duration until it would be ready for self-government. As part of its responsibilities as the Mandatory Power, South Africa was required to furnish annual reports to the Council of the League of Nations.Footnote ⁷⁷ However, following World War II, after the League of Nations had been dissolved, South Africa refused to place South West Africa under the new UN Trusteeship system on the basis that the League had been dissolved and that it did not have any legal obligations to the new organization. Instead, it wanted to continue administering South West Africa in “the spirit of the Mandate”, which would have enabled South Africa to administer South West Africa as it saw fit irrespective of what the UN General Assembly might have to say about human rights. Accordingly, South Africa refused to furnish the UN General Assembly with annual reports.

In this connection, it must be remembered that after the National Party assumed power in 1948, South Africa began officially applying its apartheid policy, although racial segregation in South Africa existed long before then.Footnote ⁷⁸ South Africa's discriminatory policies led to a dispute between South Africa and India, and Pakistan, as soon as the latter states became independent, over the treatment of persons of Indian origin in South Africa.Footnote ⁷⁹ The Indian and Pakistani governments took a particularly vocal stance against apartheid in the UN General Assembly.Footnote ⁸⁰ Zafrulla participated in the debates on the treatment of persons of Indian and Pakistani origin in South Africa, although he did not speak about the situation in South West Africa.Footnote ⁸¹ Nonetheless, in 1946, the Indian government (when Zafrulla was a judge on the Federal Court) had criticized South Africa's plans to incorporate South West Africa into the Union of South Africa on the grounds that annexation was contrary to the conception of Mandates and Trusteeship; that sovereignty resides in the people concerned and their wishes and interests were paramount; that the proposed consultation with the people of South West Africa was a farce; that the proper course of action would be for South Africa to first place South West Africa under Trusteeship and then present its case; and that, in any event, South Africa promoted racial prejudice, and had not shown any sympathy for the “weaker races”, which India found particularly objectionable.Footnote ⁸²

South Africa's curt dismissal of India's concerns about its treatment of persons of Indian origin in South Africa, its plans to annex South West Africa, and its refusal to recognize the competence of the UN General Assembly, soon led to a dispute between South Africa and the UN. Accordingly, in an effort to forestall the incorporation of South West Africa into the Union of South Africa, in 1949 the UN General Assembly asked the ICJ for an Advisory Opinion on a number of questions relating to the status of South West Africa: whether South Africa still had legal obligations as the Mandatory Power towards South West Africa despite the dissolution of the League of Nations; whether the UN Trusteeship system was applicable to South West Africa; and whether South Africa had the competence to modify the status of South West Africa.Footnote ⁸³

In 1950, the Court concluded that the UN General Assembly:

The Court also indicated that South Africa could not modify the status of South West Africa (i.e. incorporate South West Africa into the Union of South Africa) without the consent of the UN General Assembly.Footnote ⁸⁵ In the process of reaching this conclusion, the Court explained that South Africa “is under an obligation to accept the compulsory jurisdiction of the Court”.Footnote ⁸⁶ It is worth stressing that the ICJ was of the view that South Africa was under an obligation to accept the compulsory jurisdiction of the Court in its 1950 Advisory Opinion because the same Court (albeit with a different composition) effectively reached the opposite conclusion in 1966.

The problem with the Advisory Opinion, from the perspective of those states that sought to challenge South Africa's retention of South West Africa, was that although the Opinion was accepted and acted on by the UN General Assembly, it was considered ineffective, because South Africa refused to accept its validity and refused to participate in the special supervisory machinery which the UN had devised to oversee South Africa's administration of the territory. Accordingly, in the light of South Africa's refusal to abide by the ICJ's 1950 Opinion, two further Advisory Opinions were delivered by the Court in 1955 and 1956, at the request of the General Assembly. In the 1955 Opinion, the ICJ approved of the voting procedure that had been adopted by the General Assembly on questions relating to reports and petitions concerning South West Africa. And in its 1956 Opinion, the Court held that it would not be inconsistent with its 1950 Opinion for the General Assembly to authorize a procedure for the grant of oral hearings by the Committee on South West Africa to petitioners.Footnote ⁸⁷

Although these two Advisory Opinions were hardly momentous legal moments, Zafrulla's omission of these cases in the English translation of his autobiography is curious in the light of his purported recusal from the second phase of the South West Africa cases in 1965 and of his role as President of the Court when it delivered its Advisory Opinion on Namibia in 1971. Indeed, at the heart of these Advisory Opinions were not questions about procedure. The central unspoken issue in all these cases was really apartheid. The UN General Assembly was concerned that South Africa might alter the status of South West Africa without its consent, thereby extending its racially discriminatory laws there, which indeed it did.

IV. THE FIRST PHASE OF THE SOUTH WEST AFRICA CASES AND THE REACTION TO ZAFRULLA'S APPOINTMENT AS JUDGE AD HOC

Due to the failure of the 1955 and 1956 Advisory Opinions to amplify the 1950 Advisory Opinion to spur concrete political developments, in 1957 the General Assembly approached the Committee on South West Africa to investigate the possibility of a contentious action against South Africa.Footnote ⁸⁸ On 11 May 1960, Ambassador George Padmore of Liberia requested the Honourable Ernest A. Gross of the New York Bar to prepare a memorandum of law concerning the problems involved in bringing a contentious proceeding against South Africa.Footnote ⁸⁹ Gross recommended bringing a contentious case against South Africa, and heeding his advice, the Second Conference of Independent African States met at Addis Ababa in June 1960 and resolved to submit the question of South West Africa to the ICJ as a contentious case under Article 7(2) of the Mandate of South West Africa.Footnote ⁹⁰

As the ICJ concluded in its 1950 Advisory Opinion, the reference to the Permanent Court of International Justice in Article 14 of the Covenant of the League of Nations was “to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court”.Footnote ⁹¹ Apart from South Africa, Ethiopia and Liberia were the only two sub-Saharan states that had been members of the League of Nations. Accordingly, Ethiopia and Liberia each instituted a separate application at the Court, but because the two applications were in identical terms, the Court, by a procedural order, joined them together.Footnote ⁹²

While apartheid in South Africa itself could not be tackled before the ICJ, for lack of any basis of jurisdiction, South Africa's racial policies in South West Africa, which was a former League of Nations Mandate could, in the views of the applicant states, be addressed. Their argument was based on the ICJ's reasoning in its 1950 Advisory Opinion on South West Africa and Article 17(2) of the Mandate of South West Africa. In the event that the applicants were able to persuade the ICJ that it had jurisdiction to examine the claims of Ethiopia and Liberia against South Africa, a favourable decision on the merits would indirectly provide judicial condemnation of the racial practices within South Africa itself. This is because an authoritative judicial determination by the principal judicial organ of the United Nations that apartheid was an unacceptable and unlawful form of official racial policy in South West Africa would also provide the basis for an additional complaint that if apartheid was unlawful in South West Africa it must equally be unlawful in South Africa.

It must be remembered that, in 1960, when Ethiopia and Liberia brought the case to Court, the illegality of racial discrimination under customary international law was not clear.Footnote ⁹³ In the 1960s, the struggle against racial discrimination was linked to the struggle for self-determination and was associated by many governments in the Western world with Communism.Footnote ⁹⁴ In 1960, Nelson Mandela was on trial in South Africa with another 156 people for high treason for opposing racial discrimination.Footnote ⁹⁵ On 18 April 1960, the South African government declared the ANC an illegal organization under the Suppression of Communism Act.Footnote ⁹⁶ In the previous year, the Cuban revolution had brought an end to racial discrimination in Cuba—an event that influenced the young Mandela, who admitted to reading “works by and about Che Guevara, Mao Tse-tung, [and] Fidel Castro”.Footnote ⁹⁷ This was an era when Communism, decolonization, and revolution were in vogue. Moreover, as Mandela recalled, “[i]n 1960, seventeen former colonies in Africa were scheduled to become independent states. In February, British Prime Minister Harold MacMillan visited South Africa and gave a speech before Parliament in which he talked of ‘winds of change’ sweeping Africa.”Footnote ⁹⁸ On 21 March 1960, the South African police shot dead sixty-nine African protestors in Sharpeville—which the South African government insisted was “the result of a Communist conspiracy”.Footnote ⁹⁹ In 1961, in an all-White referendum, South Africans voted to end their ties with the British Commonwealth by changing South Africa's status from a union to a republic.Footnote ¹⁰⁰ After Mandela was found not guilty of treason, he was rearrested when he called on Black South Africans “to strike against the unilateral declaration of a Republic by the white government without any consultation with the black majority of South Africans”.Footnote ¹⁰¹

It was in this context that Mr Gross approached Zafrulla—who had already acquired a reputation in the UN for vocally challenging imperialism and who had just returned from a series of trips to Africa and the USSR—to see if he could sit as Judge ad hoc for the applicants.Footnote ¹⁰² In 1961, after Zafrulla and his colleagues were not re-elected to the Court, Zafrulla was appointed Pakistan's Permanent Representative to the UN. On 20 September 1962, Zafrulla was elected President of the UN General Assembly. In a secret ballot, he defeated the USSR's favoured candidate Professor G.P. Malalasekera of Ceylon by seventy-two votes to twenty-seven.Footnote ¹⁰³

The 1962 UN General Assembly was a very different place to the UN General Assembly that Zafrulla had addressed when he was Pakistan's foreign minister in the late 1940s and early 1950s. In December 1960, the UN General Assembly had passed the Declaration on the granting of independence to colonial countries and peoples, in which colonialism was associated with “alien subjugation, domination and exploitation”, which “constitutes a denial of fundamental human rights”.Footnote ¹⁰⁴ In the same resolution, the UN General Assembly also declared that colonialism is “contrary to the Charter of the United Nations”.Footnote ¹⁰⁵ The USSR had placed this Declaration on the agenda of the UN General Assembly.Footnote ¹⁰⁶

Gross's decision to approach Zafrulla sparked a chain of events that led Sir Percy to pressure Zafrulla from sitting, not just as Judge ad hoc in the first phase of the South West Africa cases, but also as a permanent member of the Court after he had been elected judge for a nine-year term just prior to the second phase of the South West Africa cases. The significance of Gross's decision to approach Zafrulla to ask if he could sit as Judge ad hoc in the first phase of the South West Africa cases is that it further tainted Sir Percy's already negative perception of Zafrulla's impartiality on all matters concerning colonialism when Zafrulla was elected to the Court for the second time in 1963.

Zafrulla and Sir Percy had already clashed on the question of Morocco in a debate that had taken place in the UN General Assembly in 1953.Footnote ¹⁰⁷ In that debate, Zafrulla supported Morocco's struggle for independence from French rule, whereas Sir Percy was aligned with the European colonial powers. During the debate, Sir Percy singled out Zafrulla for specific censure due to a comment Zafrulla had made criticizing Australia's policy of aligning itself with the European colonial powers, many of whom were then thwarting self-determination in the Third World.Footnote ¹⁰⁸ In subsequent debates at the UN, Australia refused to accept the competence of the UN General Assembly or of a Good Office Commission to study the racial situation in South Africa. As David Lowe explains:

According to W.J. Hudson, there “was virtually no Australian criticism of South African conduct towards the United Nations or the territory [of South-West Africa]”. Instead, “there was constant criticism of South Africa's opponents and their methods”.Footnote ¹¹⁰

After Sir Percy had been elected to the ICJ in 1958, he again found himself in conflict with Zafrulla in The Right of Passage case (1960).Footnote ¹¹¹ This case was ostensibly about whether India had committed a breach of an international obligation when it prevented the passage of military forces, arms, ammunition, stores, civil personnel, nationals, goods, and merchandise between Daman, one of Portugal's territories on the west coast of India, and its two enclaves of Dadar and Nagar Haveli in the Indian hinterland, across Indian territory, north of Bombay. In reality, the case was about colonialism. The colonial context was Portugal's retention of Goa and a number of disconnected enclaves on the Indian subcontinent, and the government of India's desire to obtain and incorporate them into the Union of India.

Zafrulla and Sir Percy would have been aware of the parallels between India's policy on the subcontinent and what South Africa was trying to accomplish by incorporating South West Africa, but would have taken opposing views due to their differing approaches to the issue of colonialism. Sir Percy would have probably considered India's actions in Dadar and Nagar Haveli and its stated intention to incorporate them into the Republic of India (India became a Republic in 1950) as analogous to South Africa's desire to incorporate South West Africa. In contrast, Zafrulla would probably have taken the stance that India's actions were not analogous to South Africa's because it was in pursuance of a legitimate goal, namely, the eradication of colonialism, whereas South Africa's policies in South West Africa were in furtherance of colonialism. It was therefore a question of perspective.

In The Right of Passage case, Zafrulla was Vice President of the Court and he had been elected the senior member of the drafting committee.Footnote ¹¹² The Court was evenly split on the issue of whether India had committed a breach of an international obligation when it prevented Portugal from transporting its armed forces etc. across Indian territory. In his autobiography, Zafrulla tells us that he managed to persuade Judge Winiarski—who had asked for more time to make up his mind—to vote with those judges who believed that India had not committed a breach of an international obligation. With Winiarski's support, the Court decided by eight votes to seven that no breach had been committed by India in this respect.Footnote ¹¹³

In contrast, in his Dissenting Opinion, Sir Percy argued that Portugal had acquired a right of passage in respect of its armed forces, and that “there was a correlative obligation on India not to prevent the exercise of that passage”.Footnote ¹¹⁴ Sir Percy devoted four pages of his Dissenting Opinion to statements by the government of India in which it sought Portugal's assent to the integration of her territories within the Republic of India.Footnote ¹¹⁵ He concluded “that the dominant purpose of India … was to exclude Portuguese thenceforth from any further access to the enclaves”.Footnote ¹¹⁶ In other words, India was making Portugal's continued presence in India unsustainable in an effort aimed at incorporating the territories into India so as to end colonialism in the Indian subcontinent. Presumably, Sir Percy was aware that the Court was evenly split, and may even have been aware of Zafrulla's discussion with Winiarski, and taken umbrage at Zafrulla's influence. If so, it was to prove a harbinger of things to come with respect to the South West Africa cases. This was especially so after India chose to forcibly incorporate the Portuguese colony of Goa into the Republic of India by recourse to armed force only a year after the ICJ gave Judgment in The Right of Passage case. A proposal that the Security Council deplore the Indian use of force and call for the withdrawal of Indian forces received seven affirmative votes, against four negative votes, but was defeated by the negative vote of the USSR.Footnote ¹¹⁷

In contrast to Zafrulla's vocal support for the decolonization movement at the United Nations, and more surreptitiously at the ICJ in The Right of Passage case, Sir Percy had been made Knight Commander of the Order of the Bath by Queen Elizabeth II in her very first honours list, prior to his move to The Hague, when Sir Percy was Australia's ambassador to the US.Footnote ¹¹⁸ According to David Lowe, Sir Percy's biographer, Lord and Lady Spender “felt very special, and distinctively part of a British Commonwealth, when royalty made itself felt in America”.Footnote ¹¹⁹ In the 1950s, the US still enforced racial segregation in many of its states, which caused the US administration acute embarrassment when African diplomats were “prevented from obtaining accommodation, ordering meals, or securing transportation in the land of the free”.Footnote ¹²⁰ Moreover, 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.Footnote ¹²¹ 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.Footnote ¹²² 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 ¹²³ As Lowe observes in the Australian Dictionary of Biography, Sir Percy was “sensitive to the sudden addition to the UN of twenty-three new members, many of which were former colonies in Africa or Asia”. Accordingly, he sought to counter “what he assumed would be an Afro-Asian bloc voting against Australia on colonial issues by seeking votes in other countries”.Footnote ¹²⁴

In Sir Percy's mind, the mere fact that Mr Gross had approached Zafrulla to see if he could sit as Judge ad hoc, when he had been president of the UN General Assembly and when he was head of Pakistan's Permanent Delegation to the United Nations in an atmosphere of Cold War tension and decolonization, was enough to convince him that there was some kind of conspiracy. After the UN General Assembly had passed Resolution 1514 outlawing colonialism,Footnote ¹²⁵ after the UN failed to condemn India for its invasion and annexation of Goa, Daman, and Diu, and after Zafrulla had been appointed head of the UN General Assembly, Sir Percy must have been irritated when he learned that Zafrulla had been approached by the applicant states to see if he could sit as Judge ad hoc in the most controversial case to have been brought before the Court on the very subject that had divided them.

On 15 January 1962, the Registrar of the Court wrote to the Agent for the government of South Africa to inform him that the Agent for Ethiopia and Liberia desired to approach Zafrulla to inquire if he could sit as Judge ad hoc in the South West Africa cases and set a deadline within which South Africa could raise any objections it had to Zafrulla's proposed appointment as Judge ad hoc.Footnote ¹²⁶

Sir Percy wrote about his recollections of this incident for a memoir, which he decided not to publish, and in which he reproduces confidential letters (only available to members of the Court) that he had taken from the Registry of the ICJ, and kept after retirement.Footnote ¹²⁷ According to Sir Percy, after the Court got wind of Zafrulla's nomination, President Winiarski convened a discussion amongst the judges to ascertain whether there might be any complications that could arise from having Zafrullah appointed Judge ad hoc in the light of Paragraph 2 of Article 17 of the Statute of the Court.Footnote ¹²⁸ Article 17(2) provides that no member of the Court:

President Winiarski recalled the case of Sir Benegal Rau who, having represented India at the Security Council in October 1951 when it dealt with the UK complaint against Iran for its failure to comply with interim measures indicated by the Court in July 1951, in the Anglo-Iranian Oil Company case, “had considered it his duty in agreement with the Court not to sit in th[at] case”. “In these circumstances”, President Winiarski went on to say, according to Sir Percy's recollections of the conversation, that:

Most of the judges thought that there would be no harm in writing Zafrulla a letter to ascertain whether he had directly participated and voted in the debates on South West Africa. In their opinions, chairing a session of the UN General Assembly or representing one's country as a permanent delegate, did not automatically disqualify a candidate for Judge ad hoc.Footnote ¹³¹ Judge Jessup thought that Paragraph 2 of Article 17 was not applicable to Zafrulla. He said that Zafrulla's case was different to that of Sir Benegal Rau, “for the role of a delegate of the Security Council was not the same as that of the Chairman of a delegation to the General Assembly”.Footnote ¹³² This is because Sir Benegal had participated in a vote, whereas Zafrulla as chairman did not. Similarly, Judge Tanaka said that he “did not believe that Sir Muhammad Zafrulla Khan was disqualified from sitting by virtue of Article 17, paragraph 2”, but he was in “complete agreement” with the President's proposal to write Zafrulla Khan a letter seeking information and asking for his views on the matter.Footnote ¹³³ Only Sir Percy and Sir Gerald were resolutely opposed to Zafrulla sitting. Sir Percy argued that “Article 17, paragraph 2 created a statutory disqualification in the event of incompatibility between an activity previously exercised and the functions of a Judge”.Footnote ¹³⁴ Sir Gerald thought that it would “be morally and humanly impossible that Zafrulla Khan could be other than against South Africa, and in view of the attitude adopted by Pakistan in the United Nations, this would be obvious to the whole world”.Footnote ¹³⁵

On 22 March 1962, President Winiarski wrote Zafrulla a letter. In the letter, he inquired as to whether there were any impediments to Zafrulla's designation as a Judge ad hoc in the South West Africa cases and whether there was not some difficulty in reconciling his appointment as Judge ad hoc with the functions Zafrulla exercised at the UN.Footnote ¹³⁶

On 2 April 1962, Zafrulla replied at length.Footnote ¹³⁷ In his reply, he described the procedure that was followed by the Pakistan delegation under his leadership. He then explained: “During the current session I was in charge of the items allotted to the plenary session and the items allotted to the First Committee. These items did not include South Africa.”Footnote ¹³⁸ Zafrulla added that when Ethiopia and Liberia approached him to see if he could sit as Judge ad hoc, he inquired with his government whether they had any objections to him accepting it. When the government informed him that they did not, he informed Mr Hamdani, who was in charge of the item relating to South West Africa in the Fourth Committee:

In reply to Zafrulla's letter, President Winiarski wrote: “the Court has decided not to enter into discussion as to the arguments advanced but to leave to your own conscience the problem whether or not you should sit as Judge ad hoc in the South West Africa Cases.”Footnote ¹⁴⁰

Two days later, Zafrulla replied that:

Four days later, the registrar of the Court received a letter from Tesfaye Gebre-Egze and Ernest Gross, which explained that as agents for Ethiopia and Liberia they “have been informally advised that Sir Mohammad Zafrulla Khan is unable to sit as Judge ad hoc in the South West Africa Cases”.Footnote ¹⁴²

The importance of this sequel to the second phase of the South West Africa cases, and Zafrulla's “recusal” in 1965, is that Zafrulla never did sit as Judge ad hoc and that he withdrew on his own volition. It is also important to note that throughout the correspondence between the Court and Zafrulla, at no point did the South African government object to Zafrulla's appointment as Judge ad hoc.Footnote ¹⁴³

On 21 December 1962, the ICJ, in the absence of Zafrulla, delivered its Judgment on South Africa's preliminary objections to the cases that Liberia and Ethiopia had brought against it, deciding that it had jurisdiction to adjudicate upon the merits of the dispute.Footnote ¹⁴⁴ The decision was, however, very close—it was only decided in an eight−seven vote that would be reversed in 1966 after a death, an illness, and the casting vote of the President of the Court. In dismissing every single one of South Africa's four objections, the 1962 Court concluded that:

It is particularly noteworthy, for reasons that would become apparent after the 1966 Judgment, that in reaching this conclusion the Court dismissed South Africa's third objection that there was no dispute between the applicants and the respondent and that the dispute did not affect “any material interests of the Applicant states or their nationals”.Footnote ¹⁴⁶

V. THE PRELUDE TO ZAFRULLA'S “RECUSAL”

In 1964, when Zafrulla was elected to become a judge at the ICJ for the second time, he observed that by the time he ended his first term of appointment, he was “the senior most Judge, next only to the President”.Footnote ¹⁴⁷ However, in his second term, “he came in at the bottom”.Footnote ¹⁴⁸ On this occasion, Sir Percy had been elected the President of the Court in succession to President Winiarski, and in the summer of 1964 Sir Percy decided to raise the issue of the propriety of Sir Zafrulla participating in the merits stage of the South West Africa cases in the light of his 1962 decision that he should not sit as Judge ad hoc.

Sir Percy invited Zafrulla to see him in his room, where he explained that he thought it his duty “to seek the views of his colleagues on the Court if he intended to sit in these cases”.Footnote ¹⁴⁹ Zafrulla replied by saying that “he had expected the issue to arise again, but he saw no reason why he should not sit”.Footnote ¹⁵⁰ Sir Percy then explained that he did not see any distinction between the position that Zafrulla took in 1962, when he declined to sit as Judge ad hoc in the preliminary objections phase of the South West Africa cases, and the present position when Zafrulla was a permanent judge of the Court. Sir Percy told Zafrulla that he would be reluctant, “because of our long association”, to have to give him notice under Article 24 of the Court's Statute, as this would involve a formal decision of the Court.Footnote ¹⁵¹ Article 24 provides that if the President of the Court considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly, and that if the member of the Court and the President disagree, the matter shall be settled by the decision of the Court.Footnote ¹⁵² However, Sir Percy suggested that instead of invoking Article 24, he would prefer to “ascertain, quite informally, the views of his colleagues meeting in committee. If they thought there was no reason why he should not sit, that would dispose of the matter. If, however, they thought to the contrary, other considerations would arise.”Footnote ¹⁵³ Apparently, when Sir Percy recommended this course of action to Zafrulla, he “expressed no dissent”.Footnote ¹⁵⁴

On 6 July 1964, Sir Percy convened a meeting of all the permanent judges of the Court to discuss the issue of whether Sir Zafrulla should participate in the merits phase of the South West Africa cases in the light of his nomination as Judge ad hoc by Ethiopia and Liberia and his role at the UN.Footnote ¹⁵⁵ Three days later, Sir Percy explained: “I asked Zafrulla to see me in my room in order to inform him of the fact that a substantial majority of his colleagues, after debate, were of the opinion he should not sit.”Footnote ¹⁵⁶ Yet at no point in the draft manuscript that Sir Percy wrote about this incident, does he provide any indication of who the “substantial majority” of judges are. Nor does Sir Percy elaborate on the nature of the conversation that transpired between himself and Zafrulla after he informed him of the views of the “substantial majority”, other than to write that upon hearing this news, Zafrulla's initial reaction was that “he felt that the right course was for him not to sit”.Footnote ¹⁵⁷ Sir Percy tells us that he then called Zafrulla on 24 July, and again on the 27 July, anxious to get a commitment from him that he would not sit, before he went on holiday. However, Zafrulla would not give it. Instead he told Sir Percy that “he could not accept that there was any disqualification under Article 17, and that he understood that there had been no decision on either Article 17 or Article 24 [of the Court's Statute]”.Footnote ¹⁵⁸

When Sir Percy returned from his holiday a month later, on 27 August 1964, he found a letter from Zafrulla waiting for him. Zafrulla explained that, in his view, Article 17 did not debar him from sitting in the second phase of the South West Africa cases. He added that if the President wanted to raise Article 24, which allowed the President to give a judge notice that he should not sit where there was a special reason, then he needed to follow the procedure in Article 24. This provided that if the President and the judge disagree then the matter was to be settled by a decision of the Court. But Sir Percy would not tell Zafrulla what the “special reason” that prevented him from sitting was. Moreover, Sir Percy refused to follow the procedure in Article 24 and put the matter to a vote. In his letter, Zafrulla explained that he had heard that Sir Percy had tried to introduce a “new factor” for consideration after he had been unable to persuade the Court that Article 17 was applicable to Zafrulla. This new factor was, in fact, Zafrulla's nomination as a Judge ad hoc by Ethiopia and Liberia in the preliminary objections phase of the South West Africa cases, which in Sir Percy's opinion led to a “perception of bias”.Footnote ¹⁵⁹ As Sir Percy had not raised this “new factor” directly with Zafrulla, he asked Sir Percy to enlarge upon this aspect as he did not think it made any material difference to the issue of whether or not he could sit in the merits phase of the South West Africa cases. This was because although Zafrulla had been approached by Ethiopia and Liberia to sit as Judge ad hoc in the first phase of the South West Africa cases, he did not sit in that capacity.Footnote ¹⁶⁰

As Sir Percy conceded in his letter to Zafrulla, only two judges were of the opinion that Zafrulla's nomination as Judge ad hoc, even without sitting in that capacity, constituted participation in the case within the meaning of Article 17. Presumably, these two judges were Sir Percy and Sir Gerald, since according to Sir Percy's own notes, no one else objected to Zafrulla.Footnote ¹⁶¹ As regards the views of the other judges, according to Sir Percy, they did not think it wise that Zafrulla should sit in the cases as a permanent member of the Court as the respondent state might have a feeling that Zafrulla had committed himself to the applicant states, even though, as Zafrulla pointed out in his response: “no discussion whatever had taken place between the Agent of the Applicant states or anyone acting on their behalf and myself on any aspect of the cases.”Footnote ¹⁶²

Zafrulla then addressed the statements made by the Pakistan delegation on South West Africa at meetings of the Fourth Committee on 1 and 8 December 1961 by reiterating that his participation in the debates was only vicarious. In contrast, another sitting member of the Court had personally participated in the Fourth Committee on the item of South West Africa.Footnote ¹⁶³ Zafrulla reminded Sir Percy: “[y]ou yourself were, for a number of years, chairman and vice-chairman of your own country's delegation when the question of South West Africa came under discussion.”Footnote ¹⁶⁴ Indeed, in Volume 12 of the Yearbook of the International Court of Justice (1957−1958), there appears a brief biographical note of Judge Sir Percy Spender. According to this note, among his many other appointments, Sir Percy was “Vice-President of the 5th General Assembly of the United Nations, 1950−1951” and “Vice-Chairman and Chairman of the Australian Delegation to various United Nations Assemblies, 1950−1957”.Footnote ¹⁶⁵ In other words, Sir Percy had spent seven years immersed in UN politics. During these seven years, the question of South West Africa was extensively discussed. Also, it was during these years that South Africa resolutely refused to abide by Advisory Opinions given by the ICJ on various aspects of the status of South West Africa. As Sir Percy's biographer observed, prior to his election to the Court, Sir Percy had repeatedly invoked Article 2(7) of UN Charter in debates in the UN General Assembly to deflect attempted condemnation of apartheid in South Africa.Footnote ¹⁶⁶ Furthermore, as Australia's UN representative, Sir Percy had opposed the inclusion of an Article on “the so-called right of self-determination” in the draft covenant on civil and political rights when it was being debated in the Third Committee in the 1950s.Footnote ¹⁶⁷

Clearly, Sir Percy and Zafrulla did not see eye-to-eye on the issues that were before the Court in the South West Africa cases. They had already clashed openly in the UN General Assembly on the question of Morocco, where it became apparent that they had diametrical views on colonialism. Their differing views on colonialism were also apparent from Sir Percy's dissent in The Right of Passage case.

As Australia's former Minister for External Territories (1949−51), Sir Percy had an additional reason for wanting to ensure that the claims of the applicant states failed on the merits. He would have been concerned that a decision in favour of the applicants in the merits phase of the South West Africa cases might provide a precedent that would allow Australia's former Mandates (Papua New Guinea and Nauru) to sue Australia for colonial misdemeanours.Footnote ¹⁶⁸ As Lowe explains: “Spender could be held up as a dogged defender of empire when strategic considerations were uppermost in his thinking.”Footnote ¹⁶⁹ As Hudson observes: “Defence of South Africa's rights in South-West Africa was part of Australia's defence of her own rights and intentions in Papua-New Guinea.”Footnote ¹⁷⁰ Moreover, Sir Percy's plan for the administration of Papua New Guinea was not that dissimilar to the manner in which South West Africa was administered by South Africa. In his autobiography, Politics and a Man, Sir Percy criticized “the socialist approach” of his predecessor in office, who “never saw much merit in private enterprise” and who viewed “the territory and its people as a large native museum of which they were the devoted custodians”.Footnote ¹⁷¹ In contrast to the approach that had been adopted by the Labor government, Sir Percy, as Minister for External Territories, sought to open up Papua New Guinea to private capital by forming, “in conjunction with the British Aluminium Company, of London, a further company to be known as the New Guinea Resources Prospecting Company”.Footnote ¹⁷² Furthermore, when Sir Percy was Australia's Minister for External Territories, Australia was considering proposals to transfer the Nauruans to another island because Nauru, to quote Australia's Acting Minister for External Territories, had been reduced to a “barren skeleton of coral pinnacles” due to Australia's extraction of phosphate deposits.Footnote ¹⁷³

Sir Gerald also had reasons to oppose Zafrulla. Like Sir Percy, Sir Gerald came from a country that had colonial interests which needed protection.Footnote ¹⁷⁴ In the 1950s, when Sir Gerald was the Senior Legal Adviser to the British Foreign Office, the British government was in the midst of putting down the “Mau Mau” uprising in Kenya, and establishing the Central African Federation (of Rhodesia and Nyasaland), in which it was taken for granted that the White political leadership would continue to rule for the indefinite future, even though Whites were only a small fraction of the population.Footnote ¹⁷⁵ One British civil servant involved in establishing the federation described the views of some of the ministers, civil servants, and businessmen whom he met on a visit to Southern Rhodesia in 1951 as having views that were “indistinguishable from South African apartheid”.Footnote ¹⁷⁶ Occasionally such views were even reflected in legislation.Footnote ¹⁷⁷ According to the British historian John Darwin, the Federation “was a new ‘dominion’ in the making, to be set one day beside Canada, Australia, New Zealand, and South Africa”.Footnote ¹⁷⁸ As Andrew Cohen explains, the establishment of the Central African Federation and “Britain's lukewarm record of criticising South African policies led to it being cast as a member of ‘the Unholy Alliance’ of white interests in Southern Africa with the South Africans and the Portuguese”.Footnote ¹⁷⁹ When Zafrulla was President of the UN General Assembly, the representative of Ghana asked:

Statements like these at the UN would likely have annoyed Sir Gerald.Footnote ¹⁸¹ When he was a legal adviser at the British Foreign Office, he was involved with efforts to “do everything possible to keep any idea of a further reference to the International Court [on South West Africa] in the background”.Footnote ¹⁸² The British government was opposed to the South West Africa cases from their beginning to their end.Footnote ¹⁸³

Zafrulla's vocal support for decolonization in Africa might explain why Sir Gerald was opposed to Zafrulla's nomination to the Court in 1954, and why Sir Percy and Sir Gerald both opposed his nomination as Judge ad hoc in the first phase of the South West Africa cases in 1962. When Zafrulla ran for election to the ICJ in 1963, Sir Gerald, who was a member of the National Group for the United Kingdom, and who was nominated by the same group for re-election to the ICJ, was instrumental in ensuring that Zafrulla's name did not appear on the same shortlist.Footnote ¹⁸⁴ The decision not to nominate Zafrulla caused consternation in the Foreign Office and this time it led to a dispute with the legal advisers whose views ultimately prevailed.Footnote ¹⁸⁵ But again their decision was controversial.Footnote ¹⁸⁶ As in 1954, the legal advisers’ opposition to Zafrulla did not prevent his re-election and, in 1963, Zafrulla was re-elected for a second term, which commenced in 1964.Footnote ¹⁸⁷

In his letter to Sir Percy, Zafrulla expressed his opinion that, although other members of the Court (in addition to Sir Percy) had taken part in events connected to the South West Africa cases, his position was that:

Zafrulla argued that mere nomination as Judge ad hoc and not sitting in that capacity did not amount to participation for the purposes of Article 17 of the Court's Statute. As Zafrulla explained to Sir Percy:

After noting that the Court had made no decision against him under Paragraph 3 of Article 17 or under Paragraph 3 of Article 24, Zafrulla wrote that in view of the fact that, according to Sir Percy, “a large majority of the Court” had come to the view that it would not be proper for Zafrulla to sit in these cases, a view which Zafrulla did not share, he would nevertheless respect their views and conform to them.Footnote ¹⁹⁰

In his reply, Sir Percy did not address or acknowledge the arguments that Zafrulla had raised in his letter. Sir Percy did not, for instance, counter Zafrulla's claim that other members of the Court had played political roles in the UN, including on issues directly relevant to the South West Africa cases—a point that was applicable to Sir Percy, for instance. All Sir Percy had to say to Zafrulla was that none of the judges “held any view reflecting in the slightest degree, upon your personal impartiality”.Footnote ¹⁹¹ Sir Percy's penultimate sentence before he ended his letter to Zafrulla was to say that he was:

Thus, in the same sentence that Sir Percy explained that he now considered the matter closed, he also wrote that he expected a decision from Zafrulla that he would not sit in the cases.

But Zafrulla never gave Sir Percy what he wanted. The correspondence ended there and Zafrulla did not sit in the merits phase of the South West Africa cases, even though he was a permanent judge of the ICJ.Footnote ¹⁹³ Zafrulla clearly did not recuse himself, since recusal, by definition, only applies to a judge who excuses himself from a case because of a potential conflict of interest or lack of impartiality. But this did not apply to Zafrulla. Instead, Zafrulla was placed under pressure to sit out of the cases by the President of the Court on questionable grounds, based on what transpired to be a mythical majority. It is important to note that no decision, no vote, was taken by the Court with respect to Zafrulla.Footnote ¹⁹⁴ The ICJ's 18 March Order of 1965 that is occasionally cited with respect to Zafrulla concerned another judge.Footnote ¹⁹⁵

Due to the death of Judge Badawi and the illness of Judge Bustamante, only twelve of the fifteen judges of the Court, plus the two ad hoc judges, were able to take part in the adjudication of the cases. Both Badawi and Bustamante were expected to side with the applicants on the merits, as they had voted for Ethiopia and Liberia when they rejected the preliminary objections that had been raised by South Africa in the 1962 Judgment. Accordingly, the Court, absent Zafrulla, was heading towards a tie. This was because six of the judges who had voted with the minority in the first phase of the South West Africa cases (Winiarski, Spiropoulos, Spender, Fitzmaurice, Morelli, and Judge ad hoc Van Wyk) were still judges of the Court in 1966. In the meantime, Judge Gross of France had been elected to the Court and was expected to side with the respondents, as his French predecessor Judge Basdevant had. In contrast, the eight judges who had voted with the majority in 1962 had been reduced to four (Wellington Koo, Koretsky, Jessup, and Judge ad hoc Sir Louis Mbanefo), due to the retirement of Judges Alforo and Moreno Quintana, the illness of Bustamante and the death of Badawi. However, Padilla Nervo, who was elected to the Court in 1964 to replace Moreno Quintana, was expected to side with the applicants, and indeed South Africa actually objected to his presence on the Court.Footnote ¹⁹⁶ In addition, Judge Forster of the Senegal, who had been elected to the Court in 1964, was expected to side with the applicants. Although Judge Tanaka did not participate in the 1962 Judgment, he was expected to side with the applicants.Footnote ¹⁹⁷ Like Padilla Nervo and Tanaka, Zafrulla was expected to side with the applicants in the second phase of the South West Africa cases, and, had he done so, he would have swung the balance from an evenly split Court to an eight−seven majority. This would have denied Sir Percy a casting vote. This is because in the event of there being a tie, Sir Percy, as the Court's President, would have an extra vote (i.e. two votes).Footnote ¹⁹⁸

VI. THE SECOND PHASE OF THE SOUTH WEST AFRICA CASES

On 18 July 1966, the ICJ delivered what John Dugard described as “the most controversial judgment in its history”.Footnote ¹⁹⁹ Because the Court was evenly split, the Judgment was determined by the casting vote of Sir Percy.Footnote ²⁰⁰ According to J.G. Merrills, Sir Gerald was “one of the architects of the Court's volte-face”.Footnote ²⁰¹ Presumably, the other “architect” was Sir Percy, the President of the Court, with whom Sir Gerald wrote a Joint Dissenting Opinion in the first phase of the case in 1962.Footnote ²⁰² As Lowe observes, Sir Percy was elected President of the ICJ in March 1954 “with the assistance of British Judge Fitzmaurice, who helped with lobbying of fellow Judges”.Footnote ²⁰³

What made the 1966 Decision so controversial, apart from the fact that the President pressured Sir Zafrulla not to sit in the cases, and used his casting vote to ensure that the Decision went against Ethiopia and Liberia, is that the Court did not address the merits of the case that had been pleaded before it.Footnote ²⁰⁴ Even though the entire proceedings had been directed at the merits of the case, namely, whether South Africa was accountable to the UN for its administration of South West Africa and whether apartheid violated the Mandate and the Covenant of the League of Nations, “the Court declined to pronounce on these issues, and instead returned to a matter which it was generally believed had been finally disposed of in 1962—the legal standing of the applicant States”.Footnote ²⁰⁵ Accordingly, the Court reversed the finding of its 1962 Judgment, which resulted in the minority of 1962, who dissented from that Judgment, becoming the majority of 1966 to conclude that it did not have jurisdiction to address the merits after all.

The reason adduced by the Court for not addressing the merits was essentially a point which the Court, on its own motion, decided to raise, even though this had not been a point that had been substantively raised in the hearings. In the mind of the Court, objections could be raised, not only as to the preliminary phase of the cases, but also as to the merits phase of the cases, despite the fact that neither the applicants nor the respondent had raised this issue in their pleadings.Footnote ²⁰⁶

The Court undertook a cursory examination of the Mandates system to explain why there could be no question of any legal tie between the mandatories and other individual members of the League that allowed any member of the League to seek a declaratory Judgment from the Court to prohibit a mandatory power from breaching its obligations towards the inhabitants of the territory under the Mandate. The Court explained that, irrespective of the wording that was employed in the Covenant of the League of Nations, what mattered were the intentions of the states that drafted the Mandates:

Accordingly, the Court concluded that, as regards the carrying out of the “conduct” provisions of the various mandates (those defining the mandatory's powers, its obligations towards the inhabitants of the territory, the League, and its organs), there could:

The Court explained that members of the League “not being parties to the instruments of mandate … could draw from them only such rights as these unequivocally conferred, directly or by a clearly necessary implication”.Footnote ²⁰⁹ Accordingly:

Instead this right was “vested exclusively in the League and was exercised through its competent organs”.Footnote ²¹¹

Therefore, despite the six years the applicants had invested in these cases, four years of which had been invested in the merits phase of the cases, after the same Court had already ruled in favour of the applicants by dismissing all of South Africa's preliminary objections, the applicants would therefore have to accept the fact that the same Court, albeit differently composed, had now concluded that: “There is no principle of law which, following upon the dissolution of the League, would operate to invest the Applicants with rights they did not have even when the League was still in being.”Footnote ²¹²

Despite the Court's earlier Judgment rejecting the preliminary objections raised by South Africa in 1962, the 1966 Court found that “the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims, and that, accordingly, the Court must decline to give effect to them”.Footnote ²¹³ In other words, the 1966 Court reversed the decision of the 1962 Court, which, in Zafrulla's opinion:

And, of course, Sir Percy was only able to secure this result because he did not let Zafrulla sit in the case.

VII. ZAFRULLA'S REACTION TO THE JUDGMENT

In an interview with The Observer newspaper in London on 31 July 1966, Zafrulla explained that his purported recusal, which everyone not in the know had assumed to be voluntary, was in fact, involuntary. He told The Observer:

He added: “I disagreed entirely with that view and gave the President my reasons, which I still consider were good reasons. But he told me that a large majority of the judges agreed with him that I should not sit. So I had no option.”Footnote ²¹⁶

Needless to say, the 1966 Judgment and the news that Zafrulla had been prevented from sitting in the cases provoked outrage.Footnote ²¹⁷ South Africa declared victory and went ahead with its scheme for grand apartheid in South West Africa, confident that international reprisals would be ineffective.Footnote ²¹⁸ On 27 October 1966, the UN General Assembly, furious at the Court's decision, unilaterally revoked South Africa's mandate over South West Africa.Footnote ²¹⁹ Also, in the same year, Sam Nujoma, the SWAPO leader, announced that his organization would seek to liberate Namibia by force, since constitutional change was being frustrated by South Africa.Footnote ²²⁰

One of the issues that arose following the passage of the resolution revoking South Africa's Mandate over South West Africa was whether it would have been legally preferable to obtain an advisory opinion from the ICJ before pursuing this course of action.Footnote ²²¹ Zafrulla raised the possibility that the UN General Assembly might refer a further question to the ICJ for an Advisory Opinion in an interview that he gave to the English-language Karachi-based newspaper Dawn, ten days after the ICJ delivered its Judgment. Zafrulla told the reporter that the Judgment:

But, due to the anger that was directed at the Court, it took a lot of persuading before countries would have faith in it again, which may explain the five-year delay before a further question was actually referred to the Court on the legal consequences for states of South Africa's continued presence in South West Africa.

But it is clear from this interview that Zafrulla was already thinking along the lines of drumming up support in the UN General Assembly to make a further request for an Advisory Opinion from the ICJ so that it would be given an opportunity to address the question of apartheid in South West Africa that it had resolutely refused to address in its Judgment in the second phase of the South West Africa cases in 1966. Zafrulla stressed that the advantage in seeking a further Advisory Opinion from the Court was that not only would it augment and amplify the Court's previous Opinions that were delivered in 1950, 1955, and 1956, but that it would be more difficult for the conservative-minded Europeans on the Court to avoid addressing the merits. Presumably, in the aftermath of the furore over the 1966 Judgment, and with a change in the composition of the Court, Zafrulla and his fellow Third-World judges could assure the outcome that everyone had initially been expecting from the 1966 Judgment.Footnote ²²³

VIII. DECOLONIZING THE INTERNATIONAL COURT OF JUSTICE: THE 1971 ADVISORY OPINION ON NAMIBIA (SOUTH WEST AFRICA)

In 1970, Zafrulla was elected President of the Court in a contest in which he was pitted against Sir Gerald, the senior judge whom he resoundingly defeated.Footnote ²²⁴ According to Merrills, Sir Gerald's failure to secure election to that office was “an abiding disappointment”.Footnote ²²⁵ After the uproar over the 1966 Judgment, the new UN majority thought that “the Court's membership should reflect the changed political situation and that it should contain more Afro-Asian representation, if necessary, by an enlargement of the Court”.Footnote ²²⁶ Accordingly, at the first possible opportunity in 1966, the Afro-Asian countries exerted all their influence to elect five new judges who they believed were more sympathetic towards their views. These news judges were Fouad Ammoun (Lebanon), Charles D. Onyeama (Nigeria), Cesar Bengzon (the Philippines), Manfred Lachs (Poland), and Sture Petre (Sweden).Footnote ²²⁷

Earlier, in 1970, the Security Council passed a Resolution in which, after condemning South Africa for its refusal to comply with previous UN resolutions on Namibia, declared that “the continued presence of the South African authorities in Namibia is illegal and that consequently all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid”.Footnote ²²⁸ Later that year, the UN Security Council submitted a question to the ICJ in which it was asked about the legal consequences for states of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276.Footnote ²²⁹

In June 1971, Zafrulla delivered one of the most legally innovative Advisory Opinions the ICJ has ever delivered.Footnote ²³⁰ The Opinion addressed the issue that the Court as constituted in 1966 did not want to address—and predictably prompted a two-hundred-page Dissent from Sir Gerald.Footnote ²³¹ This time, however, Sir Gerald had to write the Dissent alone as Sir Percy had retired from the Court in 1966.

The Court returned to the approach adopted by the Courts in the 1950, 1955, and 1956 Advisory Opinions, and the 1962 Judgment, but took them several stages further. The Court rejected the view that had been advanced by South Africa, and that had been tacitly accepted in the 1966 Judgment, that C-class Mandates were tantamount to colonies. It explained that such an interpretation “puts too much emphasis on the intentions of some of the parties and too little on the instrument which emerged from those negotiations”.Footnote ²³² The Court referred to text of the first paragraph of Article 22 of the Covenant of the League of Nations and concluded:

The Court added that whilst there had been a strong tendency by certain governments to annex former enemy colonial territories after World War I, “the final outcome of the negotiations, however difficult of achievement, was a rejection of the notion of annexation”.Footnote ²³⁴ The Court explained that “the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them”.Footnote ²³⁵

The Court then referred to the Declaration on the granting of independence to colonial countries and peoples, which had not been mentioned in the previous decisions of the Court, an omission that was conspicuous by its absence. In a famous and lengthy passage that is often quoted, the Court set out its method of interpreting historical developments, which was at complete variance with the approach that had been adopted by the 1966 Court. It explained that it was:

The Court added that:

It explained that the previous fifty years brought important developments which “leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned”.Footnote ²³⁸

The Opinion then addressed the powers of the UN General Assembly and the UN Security Council, expressing opinions that would prove to be controversial. The Court concluded that “by resolution 2145 (XXI) the General Assembly terminated the Mandate”.Footnote ²³⁹ However, because the UN General Assembly lacked enforcement powers “to ensure the withdrawal of South Africa from the Territory, it enlisted the co-operation of the Security Council”.Footnote ²⁴⁰ The Court explained that UN Security Council resolutions could be legally binding even if they had not been adopted under Chapter VII of the UN Charter.Footnote ²⁴¹ Having reached this conclusion, the Court was also able to reach the conclusion that it had wanted to reach all along: the General Assembly resolution that had terminated South Africa's Mandate over South West Africa was valid. So were the UN Security Council resolutions that called South Africa's presence in Namibia illegal; that called for South Africa to immediately withdraw its administration from Namibia and for states to refrain from entering into relations with other countries in respect of Namibia.Footnote ²⁴²

The British government, with its extensive trading interests in South and South West Africa—especially in the mining industry—adopted a hostile attitude to the 1971 Namibia Opinion.Footnote ²⁴³ Anthony Kershaw, Under-Secretary of State for Foreign and Commonwealth Affairs, told the House of Commons that the British government did not think that the UN General Assembly could terminate a League of Nations Mandate; that the General Assembly had “no general competence of an executive character”; that Her Majesty's government “were not persuaded by the reasoning advanced by the Court to sustain the validity of Resolution 2145”; and that “since we have reached the conclusion that the mandate has not been validly terminated, we cannot accept the legal consequences deduced by the Court”.Footnote ²⁴⁴

Despite Britain's objections, and South Africa's continued occupation of Namibia (it did not concede independence until 1990), the Namibia Opinion was important legally because it was the first case to mention self-determination explicitly. It was the first case to reference the Declaration on the granting of independence to colonial countries and peoples. Also, it was the first case to represent the views of the nations of the Third World who now made up a majority of the members of the UN General Assembly and who were determined to assert their views on legal and political controversies. The Namibia Opinion remains of importance today for those states and scholars that need authority for making arguments based on self-determination. Understanding the tortured history of the South West Africa cases, and how the Namibia Opinion only became possible after Zafrulla's victory over opposition within the Court, provides scholars with more realistic expectations of the impact of arguments they may make that reference self-determination today. The conservatism of the Court that delivered the Kosovo OpinionFootnote ²⁴⁵ is perhaps merely a return to form.