Namibia exception

The “Namibia exception” is a term used to identify the Advisory Opinion issued in 21 June 1971 by the International Court of Justice (I.C.J), the principal judicial organ of the United Nations (UN). The legal advice issued by the Court refers to the "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 a standard jurisprudence when legal remedies are indicated to identify differences between the jurisdiction if any from an illegal government and the inhabitants of the territory that are being governed. “Namibian exceptions”, are actively promoted by Ukrainian courts when appropriately applied through case-law as indicated by 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, 2006, of Ukrainian law “On the Enforcement of Judgments and the Application of the Case-Law of the European Court of Human Rights”, the courts shall apply case-law as indicated as a source of law[2].

Origin

The origin or first use for the term “Namibia exception” is not documented but it has been used, reason for being, to simplify legal advice. Its creation follows the rules for the creation of references, whereby it acts as a means to connect, or link to, another object. The choice of words for the simplification is based on two major aspects in the Advisory Opinion: Namibia was the country involved in the dispute, and the exception was issued by the court to refer to a 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, after resolution 284 (1970) was raised on the 1550th meeting of the Security Council of the United Nations during the 29 July 1970.

The Summary of the Advisory Opinion[3] in question 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 case for “Namibia exception” has as the litigant, the South African mandate, and the legal procedures that have followed the General Assembly decided 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. Under 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 to withdraw from the South African mandate after the decision from the General Assembly, the occupation of Namibia was then changed to an "illegal occupation". This change caused irreparable damage to the people of Namibia who were under constant risk of being questioned from so called officials holding government positions as part of the illegal regime.

The Court deliberation

The International Court of Justice (ICJ) understood that citizens of the territory could not be considered to have rights under the illegal government. International law quoted the decision

"the principle ex injuria jus non oritur which dictates that acts that are contrary to international law cannot have legal jurisdiction by the wrongdoer… To grant recognition of illegal acts will allow them to perpetuate and then only benefit the state which has acted illegally"

The Advisory Opinion “Namibia exception” was then issued to maintain the basic human rights for the inhabitants of the territory based on birth, marriage, and death certificate.

See also

References

  1. ↑ ICJ Case 53
  2. ↑ 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.
  3. 1 2 3 "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.
  4. ↑ "Resolutions adopted by the United Nations Security Council in 1970". www.un.org. Retrieved 2018-08-27.
  5. ↑ resolution 276 (1970) (document S/9863)
  6. ↑ "What are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)?"
This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.