Faced with the intractable problems of South Africa, the United Nations Security Council requested an advisory opinion in 1970 from the International Court of Justice, the UN’s principal judicial authority. This time, however, the issue was not South Africa’s policy of apartheid. Instead, it concerned whether the country had rights in the territory of South-West Africa, and, if so, whether they originated in its position as a “mandatory power” for the former German colony under policies established by the League of Nations after World War I.
The UN came to have jurisdiction after the collapse of the League in 1939. During the 1950s and ’60s, South Africa extended its racist laws and practices to South-West Africa. South Africa’s duties toward the territory were the object of decisions by the court in 1950, 1955, 1956, 1962, and 1966. In the last of these, the court declined to pronounce on the substance of a complaint raised by Liberia and Ethiopia. By the president’s deciding vote (heavily influenced by the British judge Sir Gerald Fitzmaurice), the court decided that the two countries did not have a “legal interest” in the case. The decision caused a massive outcry in the developing world, with many states threatening to leave the court. The 1970 initiative, then, offered the court a chance (many thought the last chance) to remove this stain on its image.
The court’s opinion embraced the UN’s official decolonizing ethos. It noted that South Africa’s mandatory rights had been terminated, and that all states were under an obligation not to recognize its presence in what was then known as Namibia. The League of Nations Covenant had used the phrase “sacred trust of civilization” to characterize the mandatory relationship. It was intended to describe the position of the former German and Turkish colonies that the Peace Conference of 1919 transferred to the victorious allies, to be administered by them as “mandate territories.” The court held that such “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of its interpretation.” With this statement—among the most famous in its history—the International Court of Justice drew a bright line between the colonial past and the postcolonial present. The time of paternalism, of development in the interests of the “natives” under the purportedly benevolent eye of the “civilized” world, was over, at least in theory. Only one path would be open to the former South African mandate: independence. But it still took a civil war for that goal to be realized, with UN assistance, almost 20 years later, in 1990.
Historians have debated the reasons that the Allies did not simply annex the territories. As Susan Pedersen shows in The Guardians, her brilliant study of the rise and fall of the mandate system, their motives were mixed. It was difficult to back down from Woodrow Wilson’s widely publicized wartime and postwar objective of self-determination for all peoples. Then too, Europeans had become tired of paying the costs of imperialism, widely seen as one of the causes of World War I. But what should be done with the colonies of the vanquished? Some of the territories were strategically important; others had valuable natural resources. The problem was that they also had populations, even very large ones—though sometimes, as Pedersen shows in her account of Australia’s government of New Guinea, they had hundreds of thousands of people whose presence was unknown to the mandatory power. What was to be done with them? It had been a costly war, so it was inconceivable that the territories would just be given away. And to whom could they be given? From the perspective of the European ideology of “civilization,” they were not ready for independence, many not even fit for self-government. The solution was to “internationalize” them—but to do so in a way that allowed the victors to ensure their control. The old Roman-law idea of mandatum seemed a suitable basis for imagining the territories as separate subjects whose “immaturity” called for the appointment of “guardians” to oversee their development.