Namibia exception
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The “Namibia exception” is a colloquial name or citation commonly used to identify the Advisory Opinion issued in 21 June 1971 by the International Court of Justice (ICJ) the principal judicial organ of the United Nations (UN). The legal advice issued by the Court was "Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)".[1] The “Namibia exception” has become standard jurisprudence for legal causes, in which exist a conflict between the legal valor of procedures from a illegal government and the inhabitants of the territory. “Namibian exceptions”, actively promoted for use by courts of Ukraine, are appropriate by the Case-Law of the European Court of Human Rights (Loizidou v. Turkey, 18.12.1996, §45, Cyprus v. Turkey, 10.05.2001, §§ 92, 96, Mozer v. the Republic of Moldova and Russia, 23.02.2016, §142). According to Article 17 of the Law of Ukraine of 2006 “On the Enforcement of Judgments and the Application of the Case-Law of the European Court of Human Rights”, while adjudicating cases, courts shall apply the convention and the case-law of the court as a source of law[2].
Origin
The origin or first use for the term “Namibia exception” is not documented but its reason for being is to simplify the citation of the legal advice document name. Its creation follows the rules for the creation of references, where it acts as a means by which to connect to, or link to, another object. The choice of words for the simplification is based in the underlining of the two major aspects in the Advisory Opinion: Namibia the country involved in the dispute, and the exception with is understanding issue by the court in reference contrary to the Security Council Resolution 276 (1970).
History
The Request for Advisory Opinion (including the dossier of documents transmitted to the Court pursuant to article 65, paragraph 2 of the Statute)[3] in accordance with Article 96 (1) of the Charter of the United Nations was filed in the International Court of Justice (ICJ) on 5 August 1970 by the third Secretary-General of the United Nations Sr. U Thant, following the resolution 284 (1970) raised on 1550th meeting of the Security Council of the United Nations during the 29 July 1970.
The Summary of the Advisory Opinion[3] on the question put by the Security Council of the United Nations was published by the International Court on 21 June 1971 it was also communicated to the Press by the Registry of the International Court of Justice on the same day.
Subject Advisory Opinion
The resolution S/RES/284 (1970)[4], adopted by the United Nations Security Council at the 1550th meeting, was intended to clarify the reports made by the Sub-Committee established in pursuance of Security Council.[5] The document intended to be the delivered to the International Court following the legal procedures and to attend the resolution 284 raised the question as the main subject of the inquiry the sentence Request for Advisory Opinion.[3][6]
The Legal deliberation
The case for “Namibia exception” has as the litigant the South African mandate and the legal procedures that have followed the General Assembly that decided the On 27 October 1966, that the Mandate for South West Africa was terminated and that South Africa had no other right to administer the Territory. By the decision the South African mandate had its title or sovereignty rights revoked and in accordance with the Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention that limits the occupation law on an occupant’s powers made every official action taken by the regime illegal and void.
With the refusal of withdrawal from the South African mandate after the decision from the General Assembly the legal status for the power holder in the occasion in Namibia change to as the "illegal occupation". This status opened a irreparable damage in the common population that was under the constant risk of being questioned from the validity of any of the official acts held by the government considered as a illegal regime.
The Court deliberation
The International Court of Justice (ICJ) understood that the inhabitants of the territory cannot be considered void of rights as the illegal government under the international law quoting the decision
"the principle ex injuria jus non oritur dictates that acts which are contrary to international law cannot become a source of legal acts for the wrongdoer… To grant recognition to illegal acts or situation will tend to perpetuate it and be beneficial to the state which has acted illegally"
The Advisory Opinion “Namibia exception” was then issue to maintain the basic human rights for the inhabitants of the territory as registration of births, marriages and deaths.
See also
References
- ^ ICJ Case 53
- ^ Nesterovych, Volodymyr (2017). "The rule of law and human rights in the temporarily occupied territories of Ukraine" (PDF). Scientific Notes of NaUKMA. Legal sciences. 200: 85–92.
- ^ a b c "Latest developments | Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) | International Court of Justice". www.icj-cij.org. Retrieved 2018-08-27.
- ^ "Resolutions adopted by the United Nations Security Council in 1970". www.un.org. Retrieved 2018-08-27.
- ^ resolution 276 (1970) (document S/9863)
- ^ "What are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)?"