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[p128]
The Court,
composed as above,
gives the foliowing Advisory Opinion:
On, December 6th, 1949, the General Assembly of the United Nations adopted
the following resolution :
'' The General Assembly,
Recalling its previous resolutions 65 (1) of 14 December 1946, 141 (II) of I
November 1947 and 227 (III) of 26 November 1948 concerning the Territory of
South-West Africa,
Considering that it is desirable that the General Assembly, for its further
consideration of the question, should obtain an advisory opinion on its
legal aspects,
1. Decides to submit the following questions to the International Court of
Justice with a request for an advisory opinion which shall be transmitted to
the General Assembly before its fifth regular session, if possible:
'What is the international status of the Territory of South-West Africa and
what are the international obligations of the Union of South Africa arising
therefrom, in particular:
(a) Does the Union of South Africa continue to have international
obligations under the Mandate for South-West Africa and, if so, what are
those obligations?
(b) Are the provisions of Chapter XII of the Charter applicable and, if so,
in what manner, to the Territory of South-West Africa?
(c) Has the Union of South Africa the competence to modify the international
status of the Territory of South-West Africa, or, in the event of a negative
reply, where does competence rest to determine and modify the international
status of the Territory?'
2. Requests the Secretary-General to transmit the present resolution to the
International Court of Justice, in accordance with Article 65 of the Statute
of the Court, accompanied by all documents likely to throw light upon the
question.
The Secretary-General shall include among these documents the text of
Article 22 of the Covenant of the League of Nations; the text of the Mandate
for German South-West Africa, confirmed by the Council of the League on 17
December 1920; relevant documentation concerning the objectives and the
functions of the Mandates System; the text of the resolution adopted by the
League of Nations on the question of Mandates on 18 April 1946; the text of
Articles 77 and 80 of the Charter and data on the discussion of these
articles in the San Francisco Conference and the General Assembly ; the
report of the Fourth Committee and the official records, including the
annexes, of the consideration of the [p130]question of South-West Africa at
the fourth session of the General Assembly."
By letter of December 19th, 1949, filed in the Registry on December 27th,
the Secretary-General of the United Nations transmitted to the Court a
certified true copy of the General Assembly's resolution.
On December 3oth, 1949, in accordance with Article 66, paragraph 1, of the
Statute, the Registrar gave notice of the request to all States entitled to
appear before the Court. In addition, as the question submitted to the Court
for advisory opinion by the General Assembly concerned Chapter XII of the
Charter, the Registrar, on the same date, informed all Members of the United
Nations, by means of a special and direct communication as provided in
Article 66, paragraph 2, of the Statute that the Court was prepared to
receive from them written statements on the question. By an order of the
same date the President, the Court not being in session, appointed Monday,
March 20th, 1950, as the date of expiry of the time-limit for the submission
of written statements, and reserved the rest of the procedure for further
decision.
Written statements were received within the prescribed time-limit from the
following States: Egypt, Union of South Africa, the United States of
America, India and Poland.
On March 7th, 1950, the Board of Directors of the International League of
the Rights of Man sent a communication to the Court asking permission to
submit written an8 oral statements on the question. On March 16th, the Court
decided that it would receive from this organization a written statement to
be filed before April 10th and confined to the legal questions which had
been submitted to the Court. On the same day, the League was notified
accordingly, but it did not send any communication within the time-limit
prescribed.
By letter of January 23rd, 1950, the Secretary-General of the United Nations
announced that he had designated Dr. I. Kerno, Assistant Secretary-General
in charge of the Legal Department, as his representative before the Court,
and that Dr. Kerno was authorized to submit any written or oral statements
likely to furnish information to the Court on the question.
By letters dated March 1st and March 20th, 1950, filed in the Registry on
March 8th and April tth, respectively, the Secretary-General transmitted to
the Registry the documents which he was instructed to submit according to
the resolution of the General Assembly and Article 65 of the Statute. All
these documents are enumerated in the list annexed to this Opinion.
By telegrams dated March 15th and April 29th, the Government of the
Philippines announced its intention to present an oral statement. The
Government of the Union of South Africa announced the same intention by
letter of March 28th. [p131]
At public sittings held from May 16th to May 23rd, 1950, the Court heard
oral statements submitted :
on behalf of the Secretary-General of the United Nations by Dr. Ivan Kerno,
Assistant Secretary-General in charge of the Legal Department;
on behalf of the Government of the Philippines by Judge José D. Ingles,
member of the Philippine Permanent Delegation to the United Nations;
on behalf of the Government of the Union of South Africa by Dr. L. Steyn,
K.C., Senior Legal Adviser of the Ministry of Justice of the South-African
Government.
***
The request for an opinion begins with a general question as follows :
"What is the international status of the Territory of South-West Africa and
what are the international obligations of the Union of South Africa arising
therefrom?"
The Court is of opinion that an examination of the three particular
questions submitted to it will furnish a sufficient answer to this general
question and that it is not neccessary to consider the general question
separately. It will therefore begin at once with an examination of the
particular questions.
Question (a) :
"Does the Union of South Africa continue to have international obligations
under the Mandate for South-West Africa and, if so, what are those
obligations ?"
The Territory of South-West-Africa was one of the German overseas
possessions in respect of which Germany, by Article 119 of the Treaty of
Versailles, renounced all her rights and titles in favour of the Principal
Allied and Associated Powers. When a decision was to be taken with regard to
the future of these possessions as well as of other territories which, as a
consequence of the war of 1914-1918, had ceased to be under the sovereignty
of the States which formerly governed them, and which were inhabited by
peoples not yet able to assume a full measure of self-government, two
principles were considered to be of paramount importance : the principle of
non-annexation and the principle that the well-being and development of such
peoples form "a sacred trust of civilization".
With a view to giving practical effect to these principles, an
international régime, the Mandates System, was created by Article 22 of the
Covenant of the League of Nations. A "tutelage" was to be established for
these peoples, and this tutelage was to be entrusted to certain advanced
nations and exercised by them "as mandatories on behalf of the
League".[p132]
Accordingly, the Principal Allied and Associated Powers agreed that a
Mandate for the Territory of South-West Africa should be conferred upon His
Britannic Majesty to be exercised on his behalf by the Government of the
Union of South Africa and proposed the terms of this Mandate. His Britannic
Majesty, for and on behalf of the Government of the Union of South Africa,
agreed to accept the Mandate and undertook to exercise it on behalf of the
League of Nations in accordance with the proposed terms. On December 17th,
1920, the Council of the League of Nations, confirming the Mandate, defined
its terms.
In accordance with these terms, the Union of South Africa (the "Mandatory")
was to have full power of administration and legislation over the Territory
as an integral portion of the Union and could apply the laws of the Union to
the Territory subject to such local modifications as circumstances might
require. On the other hand, the Mandatory was to observe a number of
obligations, and the Council of the League was to supervise the
administration and see to it that these obligations were fulfilled.
The terms of this Mandate, as well as the provisions of Article 22 of the
Covenant and the principles embodied therein, show that the creation of this
new international institution did not involve any cession of territory or
transfer of sovereignty to the Union of South Africa. The Union Government
was to exercise an international function of administration on behalf of the
League, with the object of promoting the well-being and development of the
inhabitants.
It is now contended on behalf of the Union Government that this Mandate has
lapsed, because the League has ceased to exist. This contention is based on
a misconception of the legal situation created by Article 22 of the Covenant
and by the Mandate itself. The League was not, as alleged by that
Government, a "mandator" in the sense in which this term is. used in the
national law of certain States. It had only assumed an international
function of supervision and control. The "Mandate" had only the name in
common with the several notions of mandate in national law. The object of
the Mandate regulated by international rules far exceeded that of
contractual relations regulated by national law. The Mandate was created, in
the interest of the inhabitants of the territory, and of humanity in
general, as an international institution with an international object—a
sacred trust of civilization. It is therefore not possible to draw any
conclusion by analogy from the notions of mandate in national law or from
any other legal conception of that law. The international rules regulating
the Mandate constituted an international status for the Territory recognized
by all the Members of the League of Nations, including the Union of South
Africa. [p133]
The essentially international character of the functions which had been
entrusted to the Union of South Africa appears particularly from the fact
that by Article 22 of the Covenant and Article 6 of the Mandate the exercise
of these functions was subjected to the supervision of the Council of the
League of Nations and to the obligation to present annual reports to it; it
also appears from the fact that any Member of the League of Nations could,
according to Article 7 of the Mandate, submit to the Permanent Court of
International Justice any dispute with the Union Government relating to the
interpretation or the application of the provisions of the Mandate.
The authority which the Union Government exercises over the Territory is
based on the Mandate. If the Mandate lapsed, as the Union Government
contends, the latter's authority would equally have lapsed. To retain the
rights derived from the Mandate and to deny the obligations thereunder could
not be justified.
These international obligations, assumed by the Union of South Africa, were
of two kinds. One kind was directly related to the administration of the
Territory, and corresponded to the sacred trust of civilization referred to
in Article 22 of the Covenant. The other related to the machinery for
implementation, and was closely linked to the supervision and control of the
League. It corresponded to the "securities for the performance of this
trust" referred to in the same article.
The first-mentioned group of obligations are defined in Article 22 of the
Covenant and in Articles 2 to 5 of the Mandate. The Union undertook the
general obligation to promote to the utmost the material and moral
well-being and the social progress of the inhabitants. It assumed
particular obligations relating to slave trade, forced labour, traffic in
arms and ammunition, intoxicating spirits and beverages, military training
and establishments, as well as obligations relating to freedom of conscience
and free exercise of worship, including special obligations with regard to
missionaries.
These obligations represent the very essence of the sacred trust of
civilization. Their raison d'être and original object remain. Since their
fulfilment did not depend on the existence of the League of Nations, they
could not be brought to an end merely because this supervisory organ ceased
to exist. Nor could the right of the population to have the Territory
administered in accordance with these rules depend thereon.
This view is confirmed by Article 80, paragraph 1, of the Charter, which
maintains the rights of States and peoples and the terms of existing
international instruments until the territories in question are placed under
the Trusteeship System. It is true that this provi-[p134]sion only says
that nothing in Chapter XII shall be construed to alter the rights of States
or peoples or the terms of existing international instruments. But—as far
as mandated territories are concerned, to which paragraph 2 of this article
refers—this provision presupposes that the rights of States and peoples
shall not lapse automatically on the dissolution of the League of Sations.
It obviously was the intention to safeguard the rights of States and peoples
under all circumstances and in all respects, until each territory should be
placed under the Trusteeship System.
This view results, moreover from the Resolution of the League of Nations of
April 18th, 1946, which said :
"Recalling that Article 22 of the Covenant applies to certain territories
placed under Mandate the principle that the well-being and development of
peoples not yet able to stand alone in the strenuous conditions of the
modern world form a sacred trust of civilization :
……………………………………………………………………………………………………
3. Recognizes that, on the termination of the League's existence, its
functions with respect to the mandated territories will come to an end, but
notes that Chapters XI, XII and XIII of the Charter of the United Nations
embody principles corresponding to those declared in Article 22 of the
Covenant of the League ;
4. Takes note of the expressed intentions of the Members of the League now
administering territories under Mandate to continue to administer them for
the well-being and development of the peoples concerned in accordance with
the obligations contained in the respective Mandates, until other
arrangements have been agreed between the United Nations and the respective
mandatory Powers."
As will be seen from this resolution, the Assembly said that the League's
functions with respect to mandated territories would come to an end ; it did
not say that the Mandates themselves came to an end. In confining itself to
this statement, and in taking note, on the other hand, of the expressed
intentions of the mandatory Powers to continue to administer the mandated
territories in accordance with their respective Mandates, until other
arrangements had been agreed upon between the United Nations and those
Powers, the Assembly manifested its understanding that the Mandates were to
continue in existence until "other arrangements" were established.
A similar view has on various occasions been expressed by the Union of South
Africa. In declarations made to the League of Nations, as well as to the
United Nations, the Union Government has acknowledged that its obligations
under the Mandate continued [p135] after the disappearance of the League.
In a declaration made on April 9th, 1946, in the Assembly of the League of
Nations, the representative of the Union Government, after having declared
his Government's intention to seek international recognition for the
Territory of South-West Africa as an integral part of the Union, stated: "In
the meantime, the Union will continue to administer the Territory
scrupulously in accordance with the obligations of the Mandate for the
advancement and promotion of the interests of the inhabitants as she has
done during the past six years when meetings of the Mandates Commission
could not be held." After having said that ,the disappearance of the
Mandates Commission and of the League Council would "necessarily preclude
complete compliance with the letter of the Mandate", he added : "The Union
Government will nevertheless regard the dissolution of the League as in no
way diminishing its obligations under the Mandate, which it will continue to
discharge with the full and proper appreciation of its responsibilities
until such time as other arrangements are agreed upon concerning the future
status of the Territory."
In a memorandum submitted on October 17th, 1946, by the South-African
Legation in Washington to the Secretary-General of the United Nations,
expression was given to a similar view. Though the League had at that time
disappeared, the Union Government continued to refer to its responsibility
under the Mandate. It stated: "This responsibility of the Union Government
as Mandatory is necessarily inalienable." On November 4th, 1946, the Prime
Minister of the Union, in a statement to the Fourth Committee of the United
Nations General Assembly, repeated the declaration which the representative
of the Union had made previously to the League of Nations.
In a letter of July 23rd, 1947, to the Secretary-General of the United
Nations, the Legation of the Union referred to a resolution of the Union
Parliament in which it was declared "that the Government should continue to
render reports to the United Nations Organization as it has done heretofore
under the Mandate". It was further stated in that letter: "In the
circumstances the Union Government have no alternative but to maintain the
status quo and to continue to administer the Territory in the spirit of the
existing Mandate."
These declarations constitute recognition by the Union Government of the
continuance of its obligations under the Mandate and not a mere indication
of the future conduct of that Government. Interpretations placed upon legal
instruments by the parties to them, though not conclusive as to their
meaning, have considerable [p136] probative value when they contain
recognition by a party of its own obligations under an instrument. In this
case the declarations of the Union of South Africa support the conclusions
already reached by the Court.
***
The Court will now consider the above-mentioned second group of obligations.
These obligations related to the machinery for implementation and were
closely linked to the supervisory functions of the League of
Nations—particularly the obligation of the Union of South Africa to submit
to the supervision and control of the Council of the League and the
obligation to render to it annual reports in accordance with Article 22 of
the Covenant and Article 6 of the Mandate. Since the Council disappeared by
the dissolution of the League, the question arises whether these supervisory
functions are to be exercised by the new international organization created
by the Charter, and whether the Union of South Africa is under an obligation
to submit to a supervision by this new organ and to render annual reports to
it.
Some doubts might arise from the fact that the supervisory functions of the
League with regard to mandated territories not placed under the new
Trusteeship System were neither expressly transferred to the United Nations
nor expressly assumed by that organization. Nevertheless, there seem to be
decisive reasons for an affirmative answer to the above-mentioned question.
The obligation incumbent upon a mandatory State to accept international
supervision and to submit reports is an important part of the Mandates
System. When the authors of the Covenant created this system, they
considered that the effective performance of the sacred trust of
civilization by the mandatory Powers required that the administration of
mandated territories should be subject to international supervision. The
authors of the Charter had in mind the same necessity when they organized an
International Trusteeship System. The necessity for supervision continues to
exist despite the disappearance of the supervisory organ under the Mandates
System. It cannot be admitted that the obligation to submit to supervision
has disappeared merely because the supervisory organ has ceased to exist,
when the United Nations has another international organ performing similar,
though not identical, supervisory functions.
These general considerations are confirmed by Article 80, paragraph 1, of
the Charter, as this clause has been interpreted above. It purports to
safeguard, not only the rights of States, but also the rights of the peoples
of mandated territories until Trusteeship Agreements are concluded. The
purpose must have been to provide a real [p137] protection for those
rights; but no such rights of the peoples could be effectively safeguarded
without international supervision and a duty to render reports to a
supervisory organ.
The Assembly of the League of Nations, in its Resolution of April 18th,
1946, gave expression to a corresponding view. It recognized, as mentioned
above, that the League's functions with regard to the mandated territories
would come to an end, but noted that Chapters XI, XII and XIII of the
Charter of the United Nations embody principles corresponding to those
declared in Article 22 of the Covenant. It further took note of the
intentions of the mandatory States to continue to administer the territories
in accordance with the obligations contained in the Mandates until other
arrangements should be agreed upon between the United Nations and the
mandatory Powers. This resolution presupposes that the supervisory functions
exercised by the League would be taken over by the United Nations.
The competence of the General Assembly of the United Nations to exercise
such supervision and to receive and examine reports is derived from the
provisions of Article 10 of the Charter, which authorizes the General
Assembly to discuss any questions or any matters within the scope of the
Charter and to make recommendations on these questions or matters to the
Members of the United Nations. This competence was in fact exercised by the
General Assembly in Resolution 141 (II) of November 1st, 1947, and in
Resolution 227 (III) of November 26th, 1948, confirmed by Resolution 337
(IV) of December 6th, 1949.
For the above reasons, the Court has arrived at the conclusion that the
General Assembly of the United Nations is legally qualified to exercise the
supervisory functions previously exercised by the League of Nations with
regard to the administration of the Territory, and that the Union of South
Africa is under an obligation to submit to supervision and control of the
General Assembly and to render annual reports to it.
The right of petition was not mentioned by Article 22 of the Covenant or by
the provisions of the Mandate. But on January 31st, 1923, the Council of the
League of Nations adopted certain rules relating to this matter. Petitions
to the League from communities or sections of the populations of mandated
territories were to be transmitted by the mandatory Governments, which were
to attach to these petitions such comments as they might consider desirable.
By this innovation the supervisory function of the Council was rendered more
effective.
The Court is of opinion that 'this right, which the inhabitants of
South-West Africa had thus acquired, is maintained by Article 80, [p138]
paragraph 1, of the Charter, as this clause has been interpreted above. In
view of the result at which the Court has arrived with respect to the
exercise of the supervisory functions by the United Nations and the
obligation of the Union Government to submit to such supervision, and having
regard to the fact that the dispatch and examination of petitions form a
part of that supervision, the Court is of the opinion that petitions are to
be transmitted by that Government to the General Assembly of the United
Nations, which is legally qualified to deal with them.
It follows from what is said above that South-West Africa is still to be
considered as a territory held under the Mandate of December 17th, 1920. The
degree of supervision to be exercised by the General Assembly should not
therefore exceed that which applied under the Mandates System, and should
conform as far as possible to the procedure followed in this respect by the
Council of the League of Nations. These observations are particularly
applicable to annual reports and petitions.
According to Article 7 of the Mandate, disputes between the mandatory State
and another Member of the League of Nations relating to the interpretation
or the application of the provisions of the Mandate, if not settled by
negotiation, should be submitted to the Permanent Court of International
Justice. Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph 1, of the Charter, the Court is
of opinion that this clause in the Mandate is still in force and that,
therefore, the Union of South Africa is under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions.
***
Reference to Chapter XI of the Charter was made by various Governments in
written and oral statements presented to the Court. Having regard to the
results at which the Court has arrived, the question whether the provisions
of that chapter are applicable does not arise for the purpose of the present
Opinion. It is not included in the questions submitted to the Court and it
is unnecessary to consider it.
***
Question (b):
"Are the provisions of Chapter XII of the Charter applicable and, if so, in
what manner, to the Territory of South-West Africa?"
Territories held under Mandate were not by the Charter automatically placed
under the new International Trusteeship System.[p139]
This system should, according to Articles 75 and 77, apply to territories
which are placed thereunder by means of Trusteeship Agreements. South-West
Africa, being a territory held under Mandate (Article 77 a), may be placed
under the Trusteeship System in accordance with the provisions of Chapter
XII. In this sense, that chapter is applicable to the Territory.
Question (b) further asks in what manner Chapter XII is applicable to the
Territory. It appears from a number of documents submitted to the Court in
accordance with the General Assembly's Resolution of December 6th, 1949, as
well as from the written and the oral observations of several Governments,
that the General Assembly, in asking about the manner of application of
Chapter XII, was referring to the question whether the Charter imposes upon
the Union of South Africa an obligation to place the Territory under the
Trusteeship System by means of a Trusteeship Agreement.
Articles 75 and 77 show, in the opinion of the Court, that this question
must be answered in the negative. The language used in both articles is
permissive ("as may be placed thereunder"). Both refer to subsequent
agreements by which the territories in question may be placed under the
Trusteeship System. An "agreement" implies consent of the parties concerned,
including the mandatory Power in the case of territories held under Mandate
(Article 79). The parties must be free to accept or reject the terms of a
contemplated agreement. No party can impose its terms on the other party.
Article 77, paragraph 2, moreover, presupposes agreement not only with
regard to its particular terms, but also as to which territories will be
brought under the Trusteeship System.
It has been contended that the word "voluntarily", used in Article 77 with
respect to category (c) only, shows that the placing of other territories
under Trusteeship is compulsory. This word alone cannot, however, over-ride
the principle derived from Articles 75, 77 and 79 considered as a whole. An
obligation for a mandatory State to place the Territory under Trusteeship
would have been expressed in a direct manner. The word "voluntarily"
incorporated in category (c) can be explained as having been used out of an
abundance of caution and as an added assurance of freedom of initiative to
States having territories falling within that category.
It has also been contended that paragraph 2 of Article 80 imposes on
mandatory States a duty to negotiate and conclude Trusteeship Agreements.
The Court finds no justification for this contention. The paragraph merely
States that the first paragraph of the article shall not be interpreted as
giving grounds for delay or postponement of the negotiation and conclusion
of agreements for placing mandated and other territories under the
Trusteeship System as provided for in Article 77. There is nothing to
suggest that the [p140] provision was intended as an exception to the
principle derived from Articles 75, 77 and 79. The provision is entirely
negative in character and cannot be said to create an obligation to
negotiate and conclude an agreement. Had the parties to the Charter intended
to create an obligation of this kind for a mandatory State, such intention
would necessarily have been expressed in positive terms.
It has further been maintained that Article 80, paragraph 2, creates an
obligation for mandatory States to enter into negotiations with a view to
concluding a Trusteeship Agreement. But an obligation to negotiate without
any obligation to conclude an agreement can hardly be derived from this
provision, which expressly refers to delay or postponement of "the
negotiation and conclusion" of agreements. It is not limited to negotiations
only. Moreover, it refers to the negotiation and conclusion of agreements
for placing "mandated and other territories under the Trusteeship System as
provided for in Article 77". In other words, it refers not merely to
territories held under Mandate, but also to the territories mentioned in
Article 77 (b) and (c). It is, however, evident that there can be no
obligation to enter into negotiations with a view to concluding Trusteeship
Agreements for those territories.
It is contended that the Trusteeship System created by the Charter would
have no more than a theoretical existence if the mandatory Powers were not
under an obligation to enter into negotiations with a view to concluding
Trusteeship Agreements. This contention is not convincing, since an
obligation merely to negotiate does not of itself assure the conclusion of
Trusteeship Agreements. Nor was the Trusteeship System created only for
mandated territories.
It is true that, while Members of the League of Nations regarded the
Mandates System as the best method for discharging the sacred trust of
civilization provided for in Article 22 of the Covenant, the Members of the
United Nations considered the International Trusteeship System to be the
best method for discharging a similar mission. It is equally true that the
Charter has contemplated and regulated only a single system, the
International Trusteeship System. It did not contemplate or regulate a
co-existing Mandates System. It may thus be concluded that it was expected
that the mandatory States would follow the normal course indicated by the
Charter, namely, conclude Trusteeship Agreements. The Court is, however,
unable to deduce from these general considerations any legal obligation for
mandatory States to conclude or to negotiate such agreements. It is not for
the Court to pronounce on the political or moral duties which these
considerations may involve.
For these reasons, the Court considers that the Charter does not impose on
the Union an obligation to place South-West Africa under the Trusteeship
System. [p141]
***
Question (c) :
"Has the Union of South Africa the competence to modify the international
status of the Territory of South-West Africa, or, in the event of a negative
reply, where does competence rest to determine and modify the international
status of the Territory ?"
The international status of the Territory results from the international
rules regulating the rights, powers and obligations relating to the
administration of the Territory and the supervision of that administration,
as embodied in Article 22 of the Covenant and in the Mandate. It is clear
that the Union has no competence to modify unilaterally the international
status of the Territory or any of these international rules. This -is shown
by Article 7 of the Mandate, which expressly provides that the consent of
the Council of the League of Nations is required for any modification of the
terms of the Mandate.
The Court is further requested to Say where competence to determine and
modify the international status of the Territory rests.
Before answering this question, the Court repeats that the normal way of
modifying the international status of the Territory would be to place it
under the Trusteeship System by means of a Trusteeship Agreement in
accordance with the provisions of Chapter XII of the Charter.
The competence to modify in other ways the international status of the
Territory depended on the rules governing the amendment of Article 22 of
the Covenant and the modification of the terms of the Mandate.
Article 26 of the Covenant laid down the procedure for amending provisions
of the Covenant, including Article 22. On the other hand, Article 7 of the
Mandate stipulates that the consent of the Council of the League was
required for any modification of the terms of that Mandate. The rules thus
laid down have become inapplicable following the dissolution of the League
of Nations. But one cannot conclude therefrom that no proper procedure
exists for modifying the international status of South-West Africa.
Article 7 of the Mandate, in requiring the consent of the Council of the
League of Nations for any modification of its terms, brought into operation
for this purpose the same organ which was invested with powers of
supervision in respect of the administration of the Mandates. In accordance
with the reply given above to Question (a), those powers of supervision now
belong to the General Assembly of the United Nations. On the other hand,
Articles 79 and 85 of the Charter require that a Trusteeship Agreement be
concluded by the mandatory Power and approved by the General Assembly [p142] before the International Trusteeship System may be substituted for the
Mandates System. These articles also give the General Assembly authority to
approve alterations or amendments of Trusteeship Agreements. By analogy, it
can be inferred that the same procedure is applicable to any modification of
the international status of a territory under Mandate which would not have
for its purpose the placing of the territory under the Trusteeship System.
This conclusion is strengthened by the action taken by the General Assembly
and the attitude adopted by the Union of South Africa which is at present
the only existing mandatory Power.
On January 22nd, 1946, before the Fourth Committee of the General Assembly,
the representative of the Union of South Africa explained the special
relationship between the Union and the Territory under its Mandate. There
would—he said—be no attempt to draw up an agreement until the freely
expressed will of both the European and native populations had been
ascertained. He continued : "When that had been done, the decision of the
Union would be submitted to the General Assembly for judgment."
On April 9th, 1946, before the Assembly of the League of Nations, the Union
representative declared that "it is the intention of the Union Government,
at the forthcoming session of the United Nations General Assembly in New
York, to formulate its case for according South-West Africa a status under
which it would be internationally recognized as an integral part of the
Union".
In accordance with these declarations, the Union Government, by letter of
August 12th, 1946, from its Legation in Washington, requested that the
question of the desirability of the territorial, integration in, and the
annexation to, the Union of South Africa of the mandated Territory of
South-West Africa, be included in the Agenda of the General Assembly. In a
subsequent letter of October 9th, 1946, it was requested that the text of
the item to be included in the Agenda be amended as follows : "Statement by
the Government of the Union of South Africa on the outcome of their
consultations with the peoples of South-West Africa as to the future status
of the mandated Territory, and implementation to be given to the wishes thus
expressed."
On November 4th, 1946, before the Fourth Committee, the Prime Minister of
the Union of South Africa stated that the Union clearly understood "that its
international responsibility precluded it from taking advantage of the war
situation by effecting a change in the status of South-West Africa without
proper consultation either of all the peoples of the Territory itself, or
with the competent international organs".
By thus submitting the question of the future international status of the
Territory to the "judgment" of the General Assembly as the "competent
international organ", the Union Government recognized the competence of the
General Assembly in the matter.[p143]
The General Assembly, on the other hand, affirmed its competence by
Resolution 65 (1) of December 14th, 1946. It noted with satisfaction that
the step taken by the Union showed the recognition of the interest and
concern of the United Nations in the matter. It expressed the desire "that
agreement between the United Nations and the Union of South Africa may
hereafter be reached regarding the future status of the Mandated Territory
of South-West Africa", and concluded: "The General Assembly, therefore, is
unable to accede to the incorporation of the Territory of South-West Africa
in the Union of South Africa."
Following the adoption of this resolution, the Union Government decided not
to proceed with the incorporation of the Territory, but to maintain the
status quo. The General Assembly took note of this decision in its
Resolution 141 (II) of November 1st, 1947.
On the basis of these considerations, the Court concludes that competence to
determine and modify the international status of South-West Africa rests
with the Union of South Africa acting with the consent of the United
Nations.
For these reasons,
The Court is of opinion,
On the General Question :
unanimously,
that South-West Africa is a territory under the international Mandate
assumed by the Union of South Africa on December 17th, 1920;
On Question (a) :
by twelve votes to two,
that the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of Nations
and in the Mandate for South-West Africa as well as the obligation to
transmit petitions from the inhabitants of that Territory, the supervisory
functions to be exercised by the United Nations, to which the annual reports
and the petitions are to be submitted, and the reference to the Permanent
Court of International Justice 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;[p144]
On Question (b) :
unanimously,
that the provisions of Chapter XII of the Charter are applicable to the
Territory of South-West Africa in the sense that they provide a means by
which the Territory may be brought under the Trusteeship System;
and by eight votes to six,
that the provisions of Chapter XII of the Charter do not impose on the Union
of South Africa a legal obligation to place the Territory under the
Trusteeship System ;
On Question (c) :
unanimously,
that the Union of South Africa acting alone has not the competence to
modify the international status of the Territory of South-West Africa, and
that the competence to determine and modify the international status of the
Territory rests with the Union of South Africa acting with the consent of
the United Nations.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this eleventh day of July, one thousand nine
hundred and fifty, in two copies, one of which will be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the United Sations.
(Signed) Basdevant,
President.
(Signed) E. Hambro,
Registrar
Vice-President Guerrero regrets that he is unable to concur in the opinion
of the Court on the answer to the question under letter (b) and declares
that in his opinion the Charter imposes on the Union of South Africa an
obligation to place the Territory of [p145] South-West Africa under the
Trusteeship System, and that therefore the Union is bound under paragraph 2
of Article 80 of the Charter not to delay or postpone the negotiation and
conclusion of an agreement for placing the Territory under the Trusteeship
System. Otherwise Article 80 of the Charter would have no meaning. On this
point and on the text in general, Mr. Guerrero shares the views expressed by
Judge De Visscher.
Judges Zoričic and Badawi Pasha declare that they regret to be unable to
concur in the answer given by the Court to the second part of the question
under letter (b). They share in general the views expressed on this point in
the dissenting Opinion of Judge De Visscher.
Judge Sir Arnold McNair and Judge Read, availing themselves of the right
conferred on them by Article 57 of the Statute, have appended to the Opinion
of the Court statements of their separate Opinions.
Judges Alvarez, De Visscher and Krylov, availing themselves of the right
conferred on them by Article 57 of the Statute, have appended to the Opinion
of the Court statements of their dissenting Opinions
.
(Initialled), J. B.
(Initialled) E. H. [p146]
SEPARATE OPINION BY SIR ARNOLD McNAIR
I concur in the Replies given by the majority of the Court to the General
Question and to Questions (b) and (c). As to Question (a), I regret that 1
differ as to the obligation to make reports and as to the transfer of the
administrative supervision of the Council of the League of Nations
(including its Rules of Procedure in respect of Petitions) to the United
Nations. As my approach to the main problems differs somewhat from that of
the majority, I shall give my own reasons for answering each question,
except in regard to Question (b).
General Question, and Question (a)
The crucial problems raised by Question (a) submitted to the Court are :
What is the effect of the dissolution of the League of Nations in April,
1946, upon the Mandate for South-West Africa, and which, if any, of the
obligations arising from it are still binding upon the Union of South Africa
(which I shall also refer to as "the Union").
The solution submitted by Counsel for the Union Government for the first of
these problems can be .stated very simply : the Mandate is based on the
analogy of the contract of mandate in private law, the League being the
Mandator and the Union the Mandatory ; the relationship cannot subsist
without a Mandator at one end and a Mandatory at the other ; "as between the
League and the Union Government, the Mandate therefore came to an end, and
that means that, as from the dissolution of the League, there has been no
Mandate" ; "the Mandates lapsed and the Covenant itself ceased to be a
legally valid document" ; and "the dissolution of the League had the effect
of extinguishing all international legal rights and obligations under the
Mandates System". This conclusion left it to be inferred that the Union
Government would thereupon be free to regulate the future status of
South-West Africa as a domestic matter.
For three separate reasons I have formed the opinion that a Mandate is a
more durable and a more complex institution than this solution suggests, and
I cannot accept it. My reasons rest on : [p147]
1. The legal nature of the Mandates System.
2. The objective character of Article 22 of the Covenant of the League of
Nations.
3. The terms of the Mandate for South-West Africa and their legal nature.
***
I. The legal nature of the Mandates System. The principal documents
responsible for the creation of the Mandates System are Article 22 of the
Covenant of the League of Nations and the several Mandates confirmed in
pursuance of it by the Council of the League. The main rule of policy
proclaimed by Article 22 of the Covenant is that to certain territories
"which are inhabited by peoples not yet able to stand by themselves under
the strenuous conditions of the modern world, there should be applied the
principle that the well-being and development of such peoples form a sacred
trust of civilization and that securities for the performance of this trust
should be embodied in this Covenant". This policy was applied to certain
colonies and territories, including South-West Africa, "which, as a
consequence of the [then] late war have ceased to be under the sovereignty
of the States which formerly governed them". The earliest document (or at
any rate one of the earliest documents to contain an exposition of this new
policy is the Memorandum by General Smuts, called "The League of Nations : A
Practical Suggestion", which will be found in Volume II, pages 23-60, of
Hunter Miller's book, "The Drafting of the Covenant". This Memorandum, so
far as the Mandates System is concerned, deals with policy and principles
rather than with legal machinery. Its author held the view that the
"authority, control or administration" of these dependent territories
should be vested in the League, but that, as "joint international
administration in so far as it has been applied to territories or peoples,
has been found wanting wherever it has been tried", it would be preferable
that the League, instead of exercising these powers itself, should delegate
them to a "mandatory State". Beyond that the Memorandum does not discuss the
legal nature of the relations between the League and the Mandatory. From
page 508 of Volume 1 of the same book, it seems probable that, in the course
of the preparatory work for the treaties-of peace, the critical resolution
regarding the Mandates System was presented and adopted in English ; in the
French text there appear the words "mandat", "mandataire" and "tutelle".[p148]
What is the duty of an international tribunal when confronted with a new
legal institution the object and terminology of which are reminiscent of the
rules and institutions of private law? To what extent is it useful or
necessary to examine what may at first sight appear to be relevant analogies
in private law systems and draw help and inspiration from them?
International law has recruited and continues to recruit many of its rules
and institutions from private systems of law. Article 38 (1) (c) of the
Statute of the Court bears witness that this process is still active, and it
will be noted that this article authorizes the Court to "apply .... (c) the
general principles of law recognized by civilized nations". The way in which
international law borrows from this source is not by means of importing
private law institutions "lock, stock and barrel", ready-made and fully
equipped with a set of rules. It would be difficult to reconcile such a
process with the application of "the general principles of law". In my
opinion, the true view of the duty of international tribunals in this matter
is to regard any features or terminology which are reminiscent of the rules
and institutions of private law as an indication of policy and principles
rather than as directly importing these rules and institutions. I quote a
sentence from a judgment by Chief Justice Innes in the decision of the
Supreme Court of South Africa in Rex v. Christian, South African Law Reports
[1924], Appellate Division, 101, 112 :
"Article 22 [of the Covenant] describes the administration of the
territories and peoples with which it deals as a tutelage to be exercised by
the governing Power as mandatory on behalf of the League. Those terms were
probably employed, not in their strict legal sense, but as indicating the
policy which the governing authority should pursue. The relationship
between the League and the mandatory could not with any legal accuracy be
described as that of principal and agent."
Let us then seek to discover the underlying policy and principles of Article
22 and of the Mandates. No technical significance can be attached to the
words "sacred trust of civilization", but they are an apt description of the
policy of the authors of the Mandates System, and the words "sacred trust"
were not used here for the first time in relation to dependent peoples (see
Duncan Hall, Mandates, Dependencies and Trusteeships, pp. 97-100). Any
English lawyer who was instructed to prepare the legal instruments required
to give effect to the policy of Article 22 would inevitably be reminded of,
and influenced by, the trust of English and American law, though he would
soon realize the need of much adaptation for the purposes of the new
international institution. Professor Brierly's opinion, stated in the
British Year Book of International Law, 1929, pages 217-219, that the
governing principle of the Mandates [p149]
System is to be found in the trust, and his quotation from an article by M.
Lepaulle, are here very much in point, and it is worth noting that the
historical basis of the legal enforcement of the English trust is that it
was something which was binding upon the conscience of the trustee; that is
why it was legally enforced. It also seems probable that the conception of
the Mandates System owes something to the French tutelle.
Nearly every legal system possesses some institution whereby the property
(and sometimes the persons) of those who are not sui juris, such as a minor
or a lunatic, can be entrusted to some responsible person as a trustee or
tuteur or curateur. The Anglo-American trust serves this purpose, and
another purpose even more closely akin to the Mandates System, namely, the
vesting of property in trustees, and its management by them in order that
the public or some class of the public may derive benefit or that some
public purpose may be served. The trust has frequently been used to protect
the weak and the dependent, in cases where there is "great might on the one
side and unmight on the other", and the English courts have for many
centuries pursued a vigorous policy in the administration and enforcement of
trusts.
There are three general principles which are common to all these
institutions :
(a) that the control of the trustee, tuteur or curateur over the property is
limited in one way or another ; he is not in the position of the normal
complete owner, who can do what he likes with his own, because he is
precluded from administering the property for his own personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal
obligation, based on confidence and conscience, to carry out the trust or
mission confided to him for the benefit of some other person or for some
public purpose ;
(c) that any attempt by one of these persons to absorb the property
entrusted to him into his own patrimony would be illegal and would be
prevented by the law.
These are some of the general principles of private law which throw light
upon this new institution, and I am convinced that in its future development
the law governing the trust is a source from which much can be derived. The
importance of the Mandates System is marked by the fact that, after the
experience of a quarter of a century, the Charter of the United Nations made
provision for an "International Trusteeship System", which was described by
a [p150] Resolution of the Assembly of the League of April 18th, 1946, as
embodying "principles corresponding to those declared in Article 22 of the
Covenant of the League".
Upon sovereignty a very few words will suffice. The Mandates System (and the
"corresponding principles" of the International Trusteeship System) is a new
institution-—a new relationship between territory and its inhabitants on the
one hand and the government which represents them internationally on the
other— a new species of international government, which does not fit into
the old conception of sovereignty and which is alien to it. The doctrine of
sovereignty has no application to this new system. Sovereignty over a
Mandated Territory is in abeyance ; if and when the inhabitants of the
Territory obtain recognition as an independent State, as has already
happened in the case of some of the Mandates, sovereignty will revive and
vest in the new State. What matters in considering this new institution is
not where sovereignty lies, but what are the rights and duties of the
Mandatory in regard to the area of territory being administered by it. The
answer to that question depends on the international agreements creating the
system and the rules of law which they attract. Its essence is that the
Mandatory acquires only a limited title to the territory entrusted to it,
and that the measure of its powers is what is necessary for the purpose of
carrying out the Mandate. "The Mandatory's rights, like the trustee's, have
their foundation in his obligations ; they are 'tools given to him in order
to achieve the work assigned to him' ; he has 'all the tools necessary for
such end, but only those'." (See Brierly, referred to above.)
Some practical confirmation of these suggestions of the relevant principles
can be obtained from judgments delivered by the Courts of two
Mandatories—the Union of South Africa and the Common-wealth of Australia.
(As the Reports of these decisions are riot available everywhere, I must
quote extracts from them.) In Rex v. Christian, already cited, before the
Supreme Court of South Africa, the Honourable J. de Villiers, Judge of
,4ppeal, said :
"It is true there is no cession of the territory to the Union Government as
in the case of other possessions which formerly belonged to Germany. By
Article 257 South-West Africa is said to be transferred to the Union
Government in its capacity as mandatory. But, as I shall show, by that is
meant that the Union Government is bound by the terms of the treaty, as well
as in honour, scrupulously to carry out the terms of the Mandate.
South-West Africa is transferred to the people of the Union not by way of
absolute property, but in the same way as a trustee is in possession of the
property of the cestui que trust or a guardian of the property of his [p151] ward. The former has the administration and control of the property,
but the property has to be administered exclusively in the interests of the
latter. The legal terms employed in Article 22—trust, tutelage,
mandate—cannot be taken literally as expressing the definite conceptions for
which they stand in law. They are to be understood as indicating rather the
spirit in which the advanced nation who is honoured with a mandate should
administer the territory entrusted to its care and discharge its duties to
the inhabitants of the territory, more especially towards the indigenous
populations. In how far the legal principles of these analogous municipal
institutions should be applied in these international relations I shall not
take upon myself to pronounce. But I may be permitted to say that in my
opinion the use of the term shows that, in so far as those legal principles
are reasonably applicable to these novel institutions, they should loyally
be applied. No doubt most difficult questions will arise. In municipal law a
principal can, e.g., revoke his authority at his own mere pleasure. Such is
the rule. Could this be done in the case of South-West Africa where the
Union Government, if there is a principal at all, must be considered as a
joint principal together with all the other high contracting parties ?" (P.
121.)
And Sir J. W. Wessels, Judge of Appeal, said :
"This leaves us with the mandatory power. Now although the term mandatory
power seems to imply that the mandatory acts as the agent of the League of
Nations or of the associated powers, yet in fact that is not so. Neither by
the Treaty of Versailles nor by the mandate of the League of Nations has the
Union of South Africa been appointed as a mere agent. There is no question
here of respondent superior...." (P. 136.)
I share this view that the legal character of the Mandates cannot be
explained by reference to the private law contract of mandate or agency. The
words "Mandate" and "Mandatory" were employed as non-technical terms to
denote that the Mandatory was doing something "on behalf of the League", and
that that is all that can be extracted from their use. It is primarily from
the principles of the trust that help can be obtained on the side of private
law.
In Ffrost v. Stevenson (1937), 58 Commonwealth Law Reports 528, Annual
Digest and Reports of Public International Law Cases, 1935-1937, Case No.
29, the High Court of Australia, on appeal from the Supreme Court of New
South Wales, had to decide, on a matter of extradition, whether or not "the
Mandated Territory of New Guinea [also a C Mandate] is a place out of His
Majesty's Dominions in which His Majesty has jurisdiction....". The High
Court gave an affirmative answer. This decision involved a consider-[p152]ation of the nature of a Mandate and the powers of a Mandatory, and the
following extracts from the judgments of Chief Justice Latham and Mr.
Justice Evatt are of interest. The former said :
"The grant of mandates introduced a new principle into international
law...." (P. 550.)
"The position of a mandatory in relation to a mandated territory must be
regarded as sui generis. The Treaty of Peace, read as a whole, avoids
cession of territory to the mandatory, and, in the absence of definite
evidence to the contrary, it must, I think, be taken that New Guinea has not
become part of the dominions of the Crown." (P. 552.)
"The intention of this provision [Article 257 of the Treaty of Peace] must
be taken to have been to provide for the transfer of the territory to the
mandatory, but only in its capacity as a mandatory. The mandatory, as a
kind of international trustee, receives the territory subject to the
provisions of the mandate which limit the exercise of the governmental
powers of the mandatory. Thus the article quoted, while recognizing that the
territory is actually to be transferred to the mandatory, emphasizes the
conditions and limitations upon governmental power which constitute the
essence of the mandatory system. Thus the title under which the territory is
to be held as a mandated territory is different from that under which a
territory transferred by simple cession would have been held. The article
shows that the intention was to achieve a transfer of a territory without
making that territory in the ordinary sense a possession of the mandatory. A
territory which is a 'possession' can be ceded by a power to another power
so that the latter power will have complete authority in relation to that
territory. Such a cession by a mandatory power would be quite inconsistent
with the whole conception of a mandate. A mandated territory is not a
possession of a power in the ordinary sense." (Pp. 552, 553.)
Mr. Justice Evatt, after referring to a number of British decisions on the
status of protectorates, said :
"It is quite fallacious to infer from the fact that, in pursuance of its
international duties under the mandate, the Commonwealth of Australia
exercises full and complete jurisdiction over the territory as though it
possessed unlimited sovereignty therein, either that the territory (a) is a
British possession, or (b) is within the King's dominions, or (c) has ever
been assimilated or incorporated within the Commonwealth or its
territories...." (P. 551.)
"Therefore, it can be stated that, despite certain differences of opinion as
to such questions as sovereignty in relation to the mandated territories,
every recognized authority in international law accepts the view that the
Mandated Territory of New Guinea is not part of the King's dominions. Over
and over again this fact [p153]has been recognized by the leading jurists
of Europe including many who have closely analyzed such matters in relation
to the organization and administration of the League of Nations." (P. 582.)
He then adopted Professor Brierly's view, referred to above, as to 'the
governing principle of the Mandates System.
Reference should also be made to Mr. Justice Evatt's judgment in Jolley v.
Mainka (1933), 49 Commonwealth Law Reports 242, at pages 264-292, Annual
Digest, 1933-1934, Case No. 17, relating to the same Mandated Territory.
***
2. The objective character of Article 22 of the Covenant of the League of
Nations
From time to time it happens that a group of great Powers, or a large number
of States both great and small, assume a power to create by a multipartite
treaty some new international régime or status, which soon acquires a degree
of acceptance and durability extending beyond the limits of the actual
contracting parties, and giving it an objective existence. This power is
used when some public interest is involved, and its exercise often occurs in
the course of the peace settlement at the end of a great war. In 1920 the
Council of the League had to deal with a dispute between Finland and Sweden,
Which, inter alia, involved an examination of the existing condition of a
Convention dated March 30, 1856, between France and Great Britain on the one
hand and Russia on the other, whereby Russia, in compliance with the desire
of the other two States, declared "that the Aaland Islands shall not be
fortified, and that no military or naval base shall be maintained or created
there". (This Convention was attached to and became all integral part of the
General Treaty of Peace of the same date, made between seven States, which
brought the Crimean War to an end.) Sweden claimed that this status of
demilitarization was still in force in 1920 in spite of many intervening
events, and that she, though not a party to the Convention or Peace Treaty
of 1856, was entitled to the benefit of it; her claim was based on the
allegation of an international servitude. As the Permanent Court of
International Justice had not then come into existence, the Council of the
League set up a Commission of Jurists; Professor F. Larnaude (President),
Professor A. Struycken and Professor Max Huber, and referred certain legal
questions to them. They received written statements and heard oral arguments
on behalf of Finland and Sweden. The Jurists rejected the argument based on
an alleged servitude and reported that the provisions of the Convention and
Treaty of 1856 for demilitarization were still in force.[p154]
"These provisions [they said] were laid down in European interests. They
constituted a special international status. relating to military
considerations, for the Aaland Islands. It follows that until these
provisions are duly replaced by others, every State interested [including
Sweden which was not a party] has the right to insist upon compliance with
them. It also follows that any State in possession of the Islands must
conform to the obligations binding upon it, arising out of the system of
demilitarization established by these provisions."
The Report [FN1] contains many expressions which illuminate this conclusion,
e.g.,
----------------------------------------------------------------------------------------------------------------------------
[FN1]
L. N. Off. Jo. Oct. 1920, Spec. Sup. No. 3.
----------------------------------------------------------------------------------------------------------------------------
"The Powers have, on many occasions since 1815, and especially at the
conclusion of peace treaties, tried to create true objective law, a real
political status the effects of which are felt outside the immediate circle
of contracting parties",
and again, "the character of a settlement regulating European interests",
"European law", and "the objective nature of the settlement".
It may seem a far cry from the Aaland Islands to South-West Africa, but
reference to this case is demanded by the high standing of the members of
the Commission and by the relevance of their reasoning to the present
problems. I may also refer to the statement by the Permanent Court in the
SS. Wimbledon case (Series A. No. 1, p. 22) that as a result of Article 380
of the Treaty of Versailles of 1919 the Kiel Canal "has become an
international waterway intended to provide under treaty guarantee easier
access to the Baltic for the benefit of all nations of the world"-—which was
referred to as "its new regime".
The Mandates System seems to me to be an a fortiori case. The occasion was
the end of a world war. The parties to the treaties of peace incorporating
the Covenant of the League and establishing the system numbered thirty. The
public interest extended far beyond Europe. Article 22 proclaimed "the
principle that the well-being and development of such peoples form a sacred
trust of civilization and that securities for the performance of this trust
should be embodied in the Covenant". A large part of the civilized world
concurred in opening a new chapter in the life of between fifteen and twenty
millions of people, and this article was the instrument adopted to give
effect to their desire. In my opinion, the new régime established in
pursuance of this "principle" has more than a purely contractual basis, and
the territories subjected to it are impressed with a special legal status,
designed to last [p155] until modified in the manner indicated by Article
22. The dissolution of the League has produced certain difficulties, but,
as I shall explain, they are mechanical difficulties, and the policy and
principles of the new institution have survived the impact of the events of
1939 to 946, and have indeed been reincarnated by the Charter under the name
of the "International Trusteeship System", with a new lease of life
3. The terms of the Mandate for South-West Africa and their legal nature
What obligations and other legal effects were produced by the Mandate for
South-West Africa ? From the first paragraph of Article 22 of the Covenant
it appears that German sovereignty had already disappeared before the
Mandate was granted on December 17, 1920. Nothing more is said about
sovereignty. The penultimate paragraph tells us that the Council of the
League will define "the degree of authority, control or administration to be
exercised by the Mandatory": this is not the language of sovereignty and
indicates some new relationship between a State and the territory for which
it is to become responsible— a title more limited in character than the
normal title of the sovereign State, a title which is possessory rather than
proprietary.
The Mandate in this case is a document dated December 17, 1920, whereby,
after a preamble containing important recitals, the Council of the League :
"Confirming the said Mandate, defines its terms as follows" in seven
articles. Article I says that : "The territory over which a mandate is
conferred upon His Britannic Majesty for and on behalf of the Government of
the Union of South Africa .... comprises the territory which formerly
constituted the German Protectorate of South-West Africa." Article 2
provides that : "The Mandatory shall have full power of administration and
legislation over the Territory subject to the present Mandate as an integral
portion of the Union of South Africa, and may apply the laws of the Union of
South Africa to the territory, subject to such local modifications as
circumstances may require. The Mandatory shall promote to the utmost the
material and moral well-being and the social progress of the inhabitants
subject to the present Mandate." This language does not make the Territory a
part of the territory of the Union of South Africa, and negatives any such
inference. Article 3 relates to the slave trade, forced labour, the traffic
in arms and ammunition, and the supply of intoxicating spirits and
beverages to the natives. Article 4 prohibits the military training of the
natives "otherwise than for purposes of internal police and the local
[p156] defence of the territory", the establishment of military or naval bases
and the erection of fortifications. Article 5 provides for "freedom of
conscience and the free exercise of all forms of worship" and for the
admission, travel and residence of missionaries who are nationals of any
State Member of the League of Nations. Article 6 provides that :
"The mandatory shall make to the Council of the League of Nations an annual
report to the satisfaction of the Council, containing full information with
regard to the Territory and indicating the measures taken to carry out the
obligations assumed under Articles 2, 3, 4 and 5."
Article 7 provides that :
"The consent of the Council of the League of Nations is required for any
modification of the terms of the present Mandate.
The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate, such
dispute, if it cannot be settled by negotiation, shall be submitted to the
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations...."
These obligations possess two distinct characters. The provisions of the
Mandate are in part contractual 'and in part "dispositive" (upon which term
see Westlake, International Law (2nd edition), ii, pp. 60, 294). In English
terminology, it is both a "contract" and a "conveyance", that is to Say, a
document which transfers or creates rights connected with property or
possession. In addition to the personal rights and obligations referred to
above, it also created certain "real" rights and obligations. Coupled with
the effect of the assent of the Principal Allied and Associated Powers, in
whose favour Germany renounced her rights and titles over South-West Africa
and who are expressly described in the preamble of the Mandate as the
proposers of the Mandate, the Mandate transferred to the Mandatory, or
created and recognized in the hands of the Mandatory, certain rights of
possession and government (administrative and legislative) which are valid
in rem—erga omnes, that is, against the whole world, or at any rate against
every State which was a Member of the League or in any other way recognized
the Mandate ; moreover, there are certain obligations binding every State
that is responsible for the control of territory and available to other
States.
In short, the Mandate created a status for South-West Africa. This fact is
important in assessing the effect of the dissolution of the League. This
status—valid in rem—supplies the element of [p157]
permanence which would enable the legal condition of the Territory to
survive the disappearance of the League, even if there were no surviving
personal obligations between the Union and other former Members of the
League. "Real" rights created by an international agreement have a greater
degree of permanence than personal rights, because these rights acquire an
objective existence which is more resistant than are personal rights to the
dislocating effects of international events. The importance of this point is
that it makes it unnecessary to determine the respective roles of the
Principal Allied and Associated Powers and the Council of the League in the
creation of the Mandate or to consider whether those Powers became functi
oficio after the allocation and confirmation of the Mandate, as was
submitted by counsel for the Union Government, or not. As Chief Justice
Marshall said in Chirac v. Chirac (1817), 2 Wheaton 259, 277 (cited in
Moore, Digest of International Law, Section 780), speaking of a treaty which
had expired :
"A right once vested does not require, for its preservation, the continued
existence of the power by which it was acquired. If a treaty, or any other
law, has performed its office by giving a right, the expiration of the
treaty or law can not extinguish that right."
***
I now turn to consider the effect of the dissolution of the League.
The dissolution of the League on April 19, 1946, did not automatically
terminate the Mandates. Each Mandate has to be considered separately to
ascertain the date and the mode of its termination. Take the case of
Palestine. It is instructive to note that on November 29, 1947, the General
Assembly of the United Nations adopted a resolution approving a plan of
partition of Palestine, which was firmly based on the view that the
Palestine Mandate still continued, as is evident from Articles I and 2 of
Part A and Article 12 of Part B of the Plan. Again, in the Peace Treaty with
Italy of February 10, 1947, it was considered necessary (Article 40) that
Italy should renounce all her rights under the Mandates System and in
respect of any mandated territory.
The Mandate for South-West Africa was never formally terminated, and I can
find no events which can be said to have brought about its termination by
implication. Paragraph 3 of the Resolution of the Assembly of the League
regarding the Mandates, dated April 18, 1946, does not Say that the Mandates
come to an end but that, "on the termination of the League's existence, its
functions with respect to the Mandated Territories will come to an end".[p158]
Which then of the obligations and other legal effects resulting from the
Mandate remain to-day ? The Mandatory owed to the League and to its Members
a general obligation to carry out the terms of the Mandate and also certain
specific obligations, such as the obligation of Article 6 to make an annual
report to the Council of the League. The obligations owed to the League
itself have come to an end. The obligations owed to former Members of the
League, at any rate, those who were Members at the date of its dissolution,
subsist, except in so far as their performance involves the actual
co-operation of the League, which is now impossible. (I shall deal with
Article G and the first paragraph of Article 7 later.) Moreover, the
international status created for South-West Africa, namely that of a
territory governed by a State in pursuance of a limited title as defined in
a Mandate, subsists.
Although there is no longer any League to supervise the exercise of the
Mandate, it would be an error to think that there is no control over the
Mandatory. Every State which was a Member of the League at the time of its
dissolution still has a legal interest in the proper exercise of the
Mandate. The Mandate provides two kinds of machinery for its
supervision—judicial, by means of the right of any Member of the League
under Article 7 to bring the Mandatory compulsorily before the Permanent
Court, and admin-istrative, by means of annual reports and their examination
by the Permanent Mandates Commission of the League.
The judicial supervision has been expressly preserved by means of Article 37
of the Statute of the International Court of Justice adopted in 1945 :
"Whenever a treaty or convention in force provides for reference of a matter
to a tribunal to have been instituted by the League of Nations, or to the
Permanent Court of International Justice, the matter shall, as between the
parties to the present Statute, be referred to the International Court of
Justice."
This article effected a succession by the International Court to the
compulsory jurisdiction conferred upon the Permanent Court by Article 7 of
the Mandate ; for there can be no doubt that the Mandate, which embodies
international obligations, belongs to the category of treaty or convention ;
in the judgment of the Permanent Court in the Mavrommatis Palestine
Concessions (Jurisdiction) case, Series A, No. 2, p. 35, the Palestine
Mandate was referred to as an "international agreement" ; and I have
endeavoured to show that the agreement between the Mandatory and other
Members of the League embodied in the Mandate is still "in force". The
expression "Member of the League of Nations"
[p159] is descriptive, in my opinion, not conditional, and does not mean
"so long as the League exists and they are Members of it" ; their interest
in the performance of the obligations of the Mandate did not ,accrue to them
merely from membership of the League, as an examination of the content of
the Mandate makes clear. Moreover, the Statute of the International Court
empowers it to call from the parties for "any document" or "any
explanations" (Article 49) ; and to entrust any "individual, body, bureau,
commission or other organization that it may select, with the task of
carrying out an enquiry..-" (Article 50). Article 94 of the Charter empowers
the Security Council of the United Nations to "make recommendations or
decide upon measures to be taken to give effect to the judgment" of the
Court, in the event of a party to a case failing to carry out a judgment of
the Court. In addition, the General Assembly or the Security Council of the
United Nations may request the Court to give an advisory opinion on any
legal question (Article 96 of the Charter).
On the other hand, the administrative supervision by the Council of the
League, as advised by the Permanent Mandates Commission, has lapsed,
including the obligation imposed by Article 22 of the Covenant and Article 6
of the Mandate to make, in the words of the Mandate, "to the Council of the
League of Nations an annual report to the satisfaction of the Council....".
This supervision has lapsed because the League and its Council and Permanent
Mandates Commission—the organs which were designated (i) to receive the
reports, (ii) to be satisfied with them and (iii) to examine and advise upon
them—no longer exist, so that it has become impossible to perform this
obligation. (When a particular Mandate was under discussion by the Council,
the Mandatory, if not a Member of the Council, was invited to sit with the
Council, with full power of speaking and voting.)
But it was contended on several grounds in the statements submitted by
certain governments to the Court, that the Union of South Africa is
nevertheless under an obligation to accept the administrative supervision of
the Mandate by the United Nations, and in particular to send annual reports
to that Organization.
The first contention was that there had been an automatic succession by the
United Nations to the rights and functions of the Council of the League in
this respect; but this is pure inference, as the Charter contains no
provision for a succession such as Article 37 of the Statute of the
International Court operates in the case of the compulsory jurisdiction of
the Permanent Court in regard to the Mandates. The succession of the United
Nations to the administrative functions of the League of Nations in regard
to the Mandates could have been expressly preserved and vested in the United
Nations in a similar manner, but this was not done. At the San Francisco
Conference in May, 1945, when the Charter [p160] was being drafted, the
Union Government circulated to the delegations present a statement
intimating that in due course it would claim "that the Mandate should be
terminated and that the Territory should be incorporated as part of the
Union of South Africa" (printed in United Nations General Assembly Official
Records, 1st session, 2nd Part, Fourth Committee, Part 1, p. 201). But
either it was hoped that in spite of this intimation the Union Government
would voluntarily elect to convert its Mandate into a Trusteeship Agreement
under Chapters XII and XIII of the Charter, or the question of preserving
the administrative supervision of the Mandate was overlooked.
A second contention was based on the expression occurring in Article 80,
paragraph 1, of the Charter that "nothing in this Chapter [XII] shall be
construed in or of itself to alter in any manner the rights whatsoever of
any States or peoples or the terms of existing international instruments to
which Members of the United Nations may respectively be parties". But the
cause of the lapse of the supervision of the League and of Article 6 of the
Mandate is not anything contained in Chapter XII of the Charter but is the
dissolution of the League, so that it is difficult to see the relevance of
this article.
A third contention was based on statements made on behalf of the Union
Government in letters and in the speeches of its delegates attending
meetings of the organs of the United Nations and generally upon the conduct
of that Government since the dissolution of the League. An example of these
passages—one which was received a considerable degree of prominence—occurs
in the following extract from a speech by Mr. Leif Egeland, delegate of the
Union Government, at a meeting of the Assembly of the League on April 9,
1946 :
"...: it is the intention of the Union Government, at the forthcoming
session of the United Nations General Assembly in New York, to formulate its
case for according South-West Africa a status under which it would be
internationally recognized as an integral part of the Union. As the Assembly
will know, it is already administered under the terms of the Mandate as an
integral part of the Union. In the meantime, the Union will continue to
administer the Territory scrupulously, in accordance with the obligations
of the Mandate, for the advancement and promotion of the interests of the
inhabitants, as she has done during the past six years when meetings of the
Mandates Commission could not be held.
The disappearance of those organs of the League concerned with the
supervision of Mandates, primarily the Mandates Commission and the League
Council, will necessarily preclude complete com-[p161]pliance with the
letter of the Mandate. The Union Government will nevertheless regard the
dissolution of the League as in no way diminishing its obligations under
the' Mandate, which it will continue to discharge with the full and proper
appreciation of its responsibilities until such time as other arrangements
are agreed upon concerning the future status of the territory."
There are also many statements to the effect that the Union Government will
continue to administer the Territory "in the spirit of the Mandate". These
statements are in the aggregate contradictory and inconsistent; and I do not
find in them adequate evidence that the Union Government has either assented
to an implied succession by the United Nations to the administrative
supervision exercised by the League up to the outbreak of the war in 1939,
or has entered into a new obligation towards the United Nations to revive
the pre-war system of supervision.
A fourth contention is based on a Resolution on the Mandates adopted by the
Assembly of the League on April 18, 1946, by virtue of which, the Assembly
"3. Recognizes that, on the termination of the League's existence, its
functions with respect to the Mandated Territories will come to an end, but
notes that Chapters XI, XII and XIII of the Charter of the United Nations
embody principles corresponding to those declared in Article 22 of the
Covenant of the League;
4. Takes note of the expressed intentions of the Members of the League now
administering Territories under Mandate to continue to administer them for
the well-being and development of the peoples concerned in accordance with
the obligations contained in the respective Mandates, until other
arrangements have been agreed between the United Nations and the respective
Man-datory Powers."
By this Resolution the Assembly recognized that the functions of the League
had come to an end ; but it did not purport to transfer them, with the
consent of all States interested therein, to the United Nations. I do not
see how this Resolution can be construed as having created a legal
obligation by the Union to make annual reports to the United Nations and to
transfer to that Organization the pre-war supervision of its Mandate by the
League. At the most it could impose an obligation to perform those
obligations of the Mandate—and there are many—which did not involve the
activity of the League.
In these circumstances, I cannot find any legal ground on which the Court
would be justified in replacing the Council of the League by the United
Nations for the purposes of exercising the administrative supervision of
the Mandate and the receipt and examin-[p162]ation of reports. It would
amount to imposing a new obligation upon the Union Government and would be a
piece of judicial legislation. In saying this, I do not overlook the
competence of the 7General Assembly of the United Nations, under Article 10
of the Charter, to discuss the Mandate for South-West Africa and to make
recommendations concerning it, but that competence depends not upon any
theory of implied succession but upon the provisions of the Charter.
For these reasons I am of the opinion that the continuing international
obligations of the Union of South Africa under the Mandate for South-West
Africa do not include the obligation to accept the administrative
supervision of the United Nations and to render annual reports to that
Organization.
***
Question (b)
I concur in the Opinion of the majority of the Court with respect to this
question.
***
Question (c)
There remains to be considered the effect of the dissolution of the League
upon the first paragraph of Article 7 of the Mandate, whereby "the consent
of the Council of, the League of Nations is required for any modification of
the terms of the present Mandate" —a provision which appears in all the
Mandates. The effect of this paragraph is that thereby the Members of the
League, as the States interested in the Mandate, empowered the Council of
the League on their behalf to consent to any modification of the Mandate
which the Council might consider to be appropriate.
The party who was expected to bring about any modifications which the
passage of years might show to be necessary was the Mandatory but, as I have
endeavoured to show in answering Question (a), the Mandatory's title is
limited and it has no power, acting alone, to modify the international
status of the Territory, either by incorporating it into its own territory
or otherwise.
What then is the effect of the disappearance of the League and the ensuing
impossibility of obtaining the consent of its Council ? In my opinion, the
effect is that the first paragraph of Article 7 of the Mandate has now
lapsed. But this event in no way alters the quality or amount of the
Mandatory's title or enlarges its power to modify the terms of the Mandate,
because the international obligations affecting the Territory (except those
which, as I have stated, have already lapsed) and the international status
of the Territory continue to exist. Moreover, the Charter provides one [p163] method by which the international status of the Territory can lawfully
be modified by the Mandatory, namely, by negotiating with the United Nations
and placing it under a trusteeship agreement, as described in Chapters XII
and XIII of the Charter.
On the last day of the existence of the League, April 18, 1946, the Assembly
adopted a Resolution on the subject of Mandates of which paragraphs 3 and 4
have been quoted above on page 112.
My reply to Question (c) is that the effect of this Resolution is that the
League and those States which were Members of it at the date of its
dissolution consented to any arrangements for the modification of the terms
of the Mandate that might be agreed between the United Nations and the Union
Government, and that competence to determine and modify the international
status of the Territory rests with the Union of South Africa acting with the
consent of the United Nations.
{Signed) Arnold D. McNair. [p164]
SEPARATE OPINION BY JUDGE READ
I concur in the part of the Opinion which answers Questions (b) and
(c)—dealing with the application of Chapter XII of the Charter, and
competence to determine and modify the international status of South-West
Africa—and am in general agreement with the reasons by which the answers are
justified. I also concur in the part of the answer to Question (a) which
relates to the continued substantive international obligations of the Union
of South Africa arising under the Mandate. I am, however, unable to concur
in the part of the answer which is concerned with accountability to, and
supervision by, the United Nations or in the reasons by which it is
justified. Accordingly, and with regret, I feel bound to state the reasons
which have led me to dissent.
The Court is asked whether the Union continues "to have international
obligations under the mandate for South-West Africa and, if so, what are
those obligations ?" To answer this question, it is necessary to examine the
international obligations under the Mandate as they existed before the
dissolution of the League, to consider the effect of the dissolution, and to
ascertain whether any other factors have affected the continuance of those
obligations.
For this purpose, it is unnecessary to retrace the ground covered by the
Opinion of the Court. It is sufficient to note that the international
status of South-West Africa was that of a mandated territory. The Union of
South Africa exercised most of the powers which are inherent in sovereignty,
but the residual elements were neither exercised nor possessed by the Union.
It was subject to three kinds of international obligations.
The first, and the most important, were obligations designed to secure and
protect the well-being of the inhabitants. They did not enure to the benefit
of the Members of the League,, although each and every Member had a legal
right to insist upon their discharge. The most important, the corner-stone
of the Mandates System, was "the principle that the well-being and
development of such peoples forms a sacred trust of civilization", a
principle which was established in paragraph I of Article 22 of the
Covenant.
The second kind of obligations comprised those which were due to, and enured
to, thc benefit of the Members of the League : e.g., in respect of
missioinaries and nationals.[p165]
The third kind of obligations comprised the legal duties which were
concerned with the supervision and enforcement of the first and the second.
There was the compulsory jurisdiction of the Permanent Court, established by
Article 7 of the Mandate Agreement ; and there was the system of report,
accountability, supervision and modification, under paragraphs 7, S and 9
of Article 22, and Articles 6 and 7 of the Mandate Agreement. This third
class of obligations was the new element in the Mandates System, and its
importance should not be underrated. At the same time it should not be
overestimated. The disappearance of the obligations included in the first
and the second classes would bring the Mandates System to an end. The
disappearance of the regime of report, accountability, supervision and
modification, through the Council and the Permanent Mandates Commission,
might weaken the Mandates System; but it would not bring it to an end. As a
matter of fact, the record shows that the paralysis of those agencies during
six war years had no detrimental effect upon the maintenance of the
well-being and development of the peoples.
These obligations have one point in common. Each Member of the League had a
legal interest, vis-à-vis the Mandatory Power, in matters "relating to the
interpretation or the application of the provisions of the Mandate" ; and
had a legal right to assert its interest against the Union by invoking the
compulsory jurisdiction of the Permanent Court (Article 7 of the Mandate
Agreement). Further, each Member, at the time of dissolution, had
substantive legal rights against the Union in respect of the Mandate. A
substantial number of Members of the League were not signatories of the
Charter, and have not since been admitted to membership in the United
Nations. It is a principle of international law that the parties to a
multilateral treaty, regardless of their number or importance, cannot
prejudice the legal rights of other States. The United Nations, by signing
and ratifying the Charter, could and did establish the competence of the
Organization to perform functions in relation to the mandated territories.
They could not, in law, transfer functions from the League to the
Organization, without the consent and authority of the League, or of Members
of the League whose legal rights would thus be impaired. Consequently, while
the Charter had come into force and the organization of the United Nations
had come into being before the dissolution of the League, the legal rights
of many States, which were not members of the new Organization, as regards
the mandated territories including South-West Africa, remained in full force
and vigor.
Bearing in mind the nature of the international status of South-West Africa
under the Mandates System, it is necessary to consider the effect of the
dissolution of the League. In this matter, I concur [p166] in the view of
my colleagues that the international status of South-West Africa, as a
mandated territory, survived the League. I also agree with their view that
the international obligations of the Union under the Mandate continued. On
the other hand, I differ from the majority on two points: (1) I regard as
significant the survival of the rights and legal interests of the Members of
the League ; and (2) in the effect of the dissolution upon certain of the
auxiliary obligations under the Mandate.
With regard to the first point, the same reasons which justify the
conclusion that the Mandate and the obligations of the Union were not
brought to an end by the dissolution of the League, lead inevitably to the
conclusion that the legal rights and interests of the Members, under the
Mandate, survived. If the obligations of the Union, one of the "Mandatories
on behalf of the League", continued, the legal rights and interests of the
Members of the League must, by parity of reasoning, have been maintained. It
is therefore necessary to find, and to rely on, some disposition of the
Mandate which, under the rules of international law, would be capable of
impairing or extinguishing the legal rights and interests of the Members of
the League, including those which are not members of the United Nations. No
provisions of the Charter could be sufficient for the purpose. Only action
by the League, or the consent of the Members of the League, could have that
effect.
The second point relates to the auxiliary obligations, the third kind of
obligations mentioned above as arising under the Mandate. No problem exists,
as regards the compulsory jurisdiction of the Permanent Court, which was
transferred to this Court by Article 37 of the Statute.
The obligations in relation to report and accountability to, and supervision
by, the League, under paragraphs 7 and 8 of Article 22 of the Covenant and
Articles 6 and 7 of the Mandate Agreement, present more difficulty. The
discharge of these obligations directly involved the participation of the
Council and the Permanent Mandates Commission. The League, by its Resolution
of April 18th, 1946, paragraph 3, recognized "that, on the termination of
the League's existence, its functions with respect to the mandated
territories will come to an end", and noted "that Chapters XI, XII and XIII
of the Charter of the United Nations embody principles corresponding to
those declared in Article 22 of the Covenant of the League". It was no
longer possible for the Union to send reports to a non-existent Council, or
to be accountable to, or supervised by, a non-existent Permanent Mandates
Commission. It is, therefore, necessary to give close consideration to the
action taken at Geneva, in April 1946, in order to determine [p167] the
effect of the termination of the League's existence upon these auxiliary
obligations.
The Assembly which met at Geneva in April, 1946, was not an ordinary
Assembly engaged in routine business. It was not attempting to amend the
Covenant, or the provisions of the Mandates. It was winding up the League.
Its most important resolution read as follows:
"1. (1) With effect from the day following the close of the present session
of the Assembly, the League of Nations shall cease to exist except for the
sole purpose of the liquidation of its affairs as provided in the present
resolution."
There is no doubt that the Assembly succeeded in its purpose. The League
has, in fact, come to an end. The only question, and one which has been
raised by eminent jurists, is whether the Assembly was legally competent to
do what it did.
I am of the opinion that the Assembly was competent to liquidate the
League, on two grounds.
The first is that which is indicated by the preamble : "Considering that,
under Article 3, paragraph 3, of the Covenant, the Assembly may deal with
any matter within the sphere of action of the League." Mortality is an
essential attribute of human organization. In the field of municipal law, it
is possible to provide, by legislation, for supervised liquidation, but, in
international law, there is no super-State or supreme legislative authority.
In the case of an international organization, and in the absence of express
provisions in its charter, a legal power of liquidation arises by necessary
implication. Under the Covenant, the Assembly, representing all of the
Members, was clearly justified in proceeding upon the assumption that this
power to liquidate could be exercised by it, and by no other organ or agency
of the League.
The second ground is based upon a general principle of law recognized by
civilized nations. Any legal position, or system of legal relationships, can
be brought to an end by the consent of all persons having legal rights and
interests which might be affected by their termination. The Assembly, in
liquidating the League, was not merely clothed with the authority conferred
upon it by the Covenant. Its action, in winding up the League and the
Mandates System, expressed the consent of all the Members of the League,
present or absent, to the measures adopted ; and waived, on their behalf,
any rights or any objections that they might have raised to the course of
action approved by its resolutions.
The Assembly, in providing for the liquidation of the Mandates System, was
faced with practical problems, some of which are relevant to the present
case. There was the need to enable Man-[p168]datory Powers to conclude
trusteeship agreements. The Mandatory Power, as such, was not the sovereign
of the territory. It had no right of disposition, no jus disponendi : it was
merely a Mandatory on behalf of the League. Only the League and its Members
could authorize a Mandatory to conclude a trusteeship agreement; or, indee8,
to take any action which would impair rights or obligations under a Mandate
or bring a Mandate to an end. Similarly, only the League could make legal
provision for the proposal by the Union, which involved the termination of
the Mandate for South-West Africa by incorporation of the Territory as an
integral part of the Union with international recognition conferred by the
General Assembly of the United Nations. Further, in view of the provisions
of the Charter, there would, of necessity, be a period of indefinite
duration, between the dissolution of the League and the conclusion of
trusteeship agreements or other disposition of the Mandates. To cover this
period, it might be essential, in the interest of the well-being and
development of the peoples of the territories under Mandate, to make some
provision for the discharge of the League functions, in respect of
accountability, supervision and modification, by the United Nations.
The action of the Assembly was expressed in the Resolution of April 18th,
1946, which included the following provision :
"4. Takes note of the expressed intentions of the Members of the League now
administering territories under Mandate to continue to administer them for
the well-being and development of the peoples concerned in accordance with
the obligations contained in the respective Mandates, until other
arrangements have been agreed between the United Nations and the respective
mandatory Powers."
The resolution was not expressed in technical legal language, but rather as
a political document. It did, however, set forth the intention of the League
and its Members that the Mandates should survive the League. It expressed
the consent of the League and its Members to the disposition of the Mandates
by other arrangements agreed between the United Nations and the respective
Mandatory Powers. The language used was broad enough to cover the practical
problems referred to above : to give legal authority to a Mandatory to
terminate a Mandate by concluding a trusteeship agreement; to sanction the
termination of a Mandate by emancipation, incorporation or merger ; or to
enable a modification of a Mandate by establishing report and accountability
to, or supervision by, the United Nations. These ends could only be
accomplished by arrangements agreed between the United Nations and the
Mandatory Power. There can be no doubt that the competence of the Assembly
and Members to wind up the League extended [p169] to the Mandates System
and included executory measures of this sort, which were essential elements
of effective liquidation.
As a result of the foregoing considerations, it is possible to summarize the
position, as regards the international status of South-West Africa and the
international obligations of the Union arising therefrom, after the
termination of the existence of the League :
First : the Mandate survived, together with all of the essential and
substantive obligations of the Union.
Second : the legal rights and interests of the Members of the League, in
respect of the Mandate, survived with one important exception—in the case of
Members that did not become parties to the Statute of this Court, their
right to implead the Union before the Permanent Court lapsed.
Third : the obligations in respect of report and accountability to, and
supervision by, the League and its organs, and in respect of modification,
were affected by impossibility of performance, due to the disappearance of
the Council and Permanent Mandates Commission.
Fourth: the position, as regards report, accountability and supervision was
subject to modification by arrangement agreed between the United Nations and
the Union.
With regard to the other factors which may have affected the continuance of
the international obligations of the Union, there is one which cannot be
overlooked. A territory, held under Mandate by a Member of the United
Nations, is not left to the uncontrolled administration of the Mandatory
Power. In the present instance, the Union, in the case of disputes relating
to the interpretation or the application of the provisions of the Mandate,
is subject to the compulsory jurisdiction of this Court—under the provisions
of Article 7 of the Mandate Agreement and Article 37 of the Statute,
reinforced by Article 94 of the Charter. The importance of these provisions
cannot be measured by the frequency of their exercise. The very existence of
a judicial tribunal, clothed with compulsory jurisdiction, is enough to
ensure respect for legal obligations. In addition, the General Assembly has
wide powers under Article 10 and other articles of the Charter. There is,
therefore, no lack of adequate provision in the Charter for dealing with the
position of a territory under Mandate during the period intervening between
the dissolution of the League and the termination of the Mandate, whether by
conclusion of a trusteeship agreement or in some other way.
There remains the question—the fourth point in the above summary—whether the
position, as regards report, accountability [p170] and supervision, has
since been modified by arrangement agreed between the United Nations and the
Union of South Africa ; or, in other words, was there an "arrangement agreed
between" the United Nations and the Union whereby the United Nations was to
be substituted for the Council and the Permanent Mandates Commission of the
League, in the matters of report, accountability and supervision ?
It is unnecessary to discuss the juridical nature of an international
agreement. It is sufficient, for present purposes, to state that an
"arrangement agreed between" the United Nations and the Union necessarily
included two elements : a meeting of the minds ; and an intention to
constitute a legal obligation.
It has been suggested, in the written statements of the governments and in
the argument, that there was agreement between the Union and the United
Nations, and that the latter was substituted for the League organs, as
regards report, accountability and supervision. In reviewing the evidence
upon which this suggestion is founded, it will be convenient to concentrate
upon the single question whether there was a meeting of the minds ; i.e.,
whether an agreement was reached between the Union and the United Nations,
in the course of the proceedings before the General Assembly and its
Committees.
At a meeting of the Fourth Committee, November 13th, 1946, the
representative of the Union made the original proposal, in the following
words :
"In particular the Union would, in accordance with Article 73, paragraph
(e), of the Charter, transmit regularly to the Secretary-General of the
United Nations 'for information purposes, subject to such limitations as
security and constitutional regulations might require, statistical and other
information of a technical nature relating to economic, social and
educational conditions' in South West Africa...."
This proposal was renewed from time to time and its nature and scope were
confirmed, explained and clarified by different representatives of the
Union. It is unnecessary to cite all the instances. Fortunately, there is on
record a statement, which received the unanimous approval of the Fourth
Committee, and which gives a detailed explanation of the proposal as
understood both by the representative of the Union and by the members of the
Fourth Committee. The Rapporteur's Report, October 27th, 1947, stated :
"At the thirty-third meeting of the Committee on 37 September 1947, in
response to a request by the representative of Denmark for amplification of
the proposal to maintain the status quo in South West Africa and to continue
to administer the Territory in the spirit of the mandate, particularly with
regard to the United Nations and its organs, the representative of the Union
of South Africa explained that the annual report which his Government would
submit on South West Africa would contain the same type of information on
the Territory as is required for Non-Self-Governing Territories under
Article 73 (e) of the Charter. It was the [p171] assumption of his
Government, he said, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement had in fact been concluded. He further explained that, since the
League of Nations had ceased to exist, the right to submit petitions could
no longer be exercised, since that right presupposes a jurisdiction which
would only exist where there is a right of control or supervision, and in
the view of the Union of South Africa no such jurisdiction is vested in the
United Nations with regard to South West Africa."
The terms of a letter from the deputy permanent representative of the Union,
May 31st, 1948, show that the proposal could no longer be regarded as
standing. Even if the original proposal could have been regarded as having
been made with a view to a legal obligation, it could no longer be so
regarded after the Union had indicated that the transmission of information
was on a voluntary basis. It is, therefore, necessary to ascertain whether
an arrangement was agreed between the Union and the United Nations before
that date.
It is clear, from the record, that the Government of the Union was not
prepared to put forward any proposal which went beyond the following
elements :
(a) an undertaking to transmit annual reports, in accordance with, and in
the terms of, Article j3 (e) of the Charter, for the information of the
United Nations ;
(b) by virtue of the provisions of the Charter, this information would be
available to the General Assembly, in the exercise of its functions under
Article 10 and other articles of the Charter, in any matter in which the
functions might concern South-West Africa.
It is equally clear, from the record, that the General Assembly was not
prepared to agree to an arrangement on such a limited basis.
On the other hand, it is doubtful whether the General Assembly was willing,
at any stage, to agree to any arrangement that did not involve a trusteeship
agreement for South-West Africa. It is certain that the General Assembly was
not prepared to agree to any arrangement that did not involve the following:
reports of the same nature and scope as those which had been due to the
Council under the provisions of Article 22 of the Covenant and the Mandate
Agreement; substitution of the United Nations for the Council and Permanent
Mandates Commission, as regards report, accountability and supervision ;
review of reports by the Trusteeship Council. It is equally certain that the
Union was not ready -to agree to an arrangement involving these elements.
In these circumstances, it is necessary to conclude that there was no
arrangement agreed between the Union and the United Nations, in the matter
of report, accountability and supervision.[p172]
In the absence of such an arrangement, the only other possible bases for the
obligations in question would be succession by the United Nations to the
functions, powers and responsibilities of the League in respect of Mandates.
Such a succession could not be based upon the provisions of the Charter,
because, as I have stated above, no provisions of the Charter could legally
affect an institution founded upon the Covenant, or impair or extinguish
legal rights and interests of those Members of the League which are not
members of the United Nations. It could not be based on implications or
inferences drawn from the nature of the League and the United Nations or
from any similarity in the functions of the organizations. Such a succession
could not be implied, either in fact or in law, in the absence of consent,
express or implied by the League, the United Nations and the Mandatory
Power. There was no such consent.
Reference to the terms of the Resolution of the General Assembly, February
12th, 1946, XIV-1 (1), Clause 3 C, shows that the General Assembly's action
was inconsistent with the doctrine of succession. Paragraph 3 read :
"3. The General Assembly declares that the United Nations is willing in
principle, and subject to the provisions of this resolution and of the
Charter of the United Nations, to assume the exercise of certain functions
and powers previously entrusted to the League of Nations, and adopts the
following decisions, set forth in A, B, and C below."
The decision C read :
"C. Functions and Powers under Treaties. International Conventions,
Agreements and Other Instruments Having a Political Character
The General Assembly will itself examine, or will submit to the appropriate
organ of the United Nations, any request from the parties that the United
Nations should assume the exercise of functions or powers entrusted to the
League of Nations by treaties, international conventions, agreements and
other instruments having a political character."
The Mandate involves functions and powers of a political character. It is
founded upon a treaty and an agreement. The parties are the League and the
Union of South Africa. In substance, decision C provides that the General
Assembly will examine a request from the Union of South Africa and other
interested parties that the United Nations should assume League functions,
as regards report, accountability and supervision over the South-West
African Mandate. No such request has been forthcoming, and the General
Assembly has not had occasion to act under decision C. The very existence of
this express provision, however, makes it impossible to justify succession
based upon implicaion.[p173]
In the case of the League, there was no consent to succession in the case of
Mandates ; and it is impossible to imply consent, in view of the express
provision of paragraph 4 of the Resolution of April 18th, 1946, cited and
discussed above, with regard to arrangements between the United Nations and
the Mandatory Powers. It will be observed that the provisions of paragraph
4 are complementary to, and in complete accord with, those of decision C.
This may be explained by the fact that the members of the First Committee of
the League, who drafted the resolution, were fully aware of the provisions
of decision C.
Accordingly, in the absence of an "arrangement agreed between" the United
Nations and the Union, and in the absence of succession by the United
Nations to the political functions of the League, in respect of the
Mandates, I am obliged to conclude that the Union of South Africa is not
under an obligation, arising under the Mandate, to render annual reports,
under paragraph 7 of Article 22 of the Covenant and Article 6 of the Mandate
Agreement, to the United Nations. For the same reasons, the Union is not
under any obligation, arising under the Mandate, as regards accountability
to, and supervision by, the United Nations.
With regard to the so-called right of petition, the foregoing considerations
would be applicable. There are, however, additional reasons, which prevent
me from concurring in the answer given by the Court and the reasons by which
it is justified. The regulation of petitions was based upon rules of
procedure adopted by the Council of the League on January 31st, 1923.
Obligations which the Union may have incurred as a result of the adoption of
these rules cannot possibly be regarded as "international obligations under
the mandate for South-West Africa", within the meaning of Question (a).
Further, even if the United Nations succeeded to the functions of the
League, in respect of mandated territories, it would not follow that the
General Assembly would be bound by the rules of procedure adopted by the
Council of the League, as regards petitions or any other aspects of the
problem. The General Assembly could make its own rules, acting under the
provisions of Article 21 of the Charter.
(Signed) J. E. Read. [p174]
DISSENTING OPINION OF Mr. ALVAREZ
[Translation.]
I
The questions which are now referred to the Court in the request for
advisory opinion from the General Assembly of the United Nations are of
great importance not only from the point of view of international law, but
also from the social, economic and international political points of view.
From the social point of view, for the first time in the history of mankind,
States, through a great change in their international outlook, have
proclaimed (Article 22 of the Covenant of the League of Nations) that the
well-being and the development of peoples not yet able to govern themselves
form, for the civilized countries, a sacred trust of civilization. To this
end, they established a new institution, the Mandates System. This idea has
been taken up and developed in the United Nations Charter in the
establishment of the Trusteeship System.
From the economic point of view, one of the concerns of Our time is the
improvement of under-developed territories in order to obtain the best
possible results for the benefit of the general community. An economic
conference has just opened where the delegates of almost every nation of the
world have established a programme of technical aid to those peoples and a
financial pool has been created to that effect.
From the international political point of view, the institutions of Mandate
and Trusteeship have considerably modified the international position of
certain continents by preparing many backward peoples for independent
statehood.
But it is from the angle of international law that the creation of those
institutions presents the greatest interest. The spirit and certain
characteristics of what may be called the new international law have thereby
been introduced in international law. In the same spirit, and by resorting
to the same characteristics, it will be possible in future to create similar
institutions for the general or continental interests.
II
The questions concerning the Territory of South-West Africa submitted to the
Court for opinion have been complicated and even made obscure in the
discussions which have taken place for several years' between various
Governments and in the Councils and Assemblies of the League of Nations and
the United Nations.[p175]
They have been dealt with from various angles : from the angle of private
law, when the nature of the mandate, its termination, the nature of the
obligations, the lapsing of contracts, etc., were considered, and from the
angle of international law, when sovereignty, treaties and their purposes,
certain provisions of the League of Nations Covenant and the United Nations
Charter were being discussed. This was done on the basis of traditional
views in these matters, and by applying the classical method of
interpretation of conventions and treaties.
In fact, the question is an entirely new one and comes under the new
international law. It is the duty of the Court therefore to consider it, not
only in the light of principles laid down in the Covenant or the Charter,
but also, as we shall see later, in accordance with the nature, aims and
purposes of this law.
III
For this reason, we must first consider briefly the nature of this new
international law and the new criterion which must be applied to the
questions before the Court.
This law is the result and outcome of the great transformations in the life
of nations which have taken place since the first world war, and mostly
after the 1939 cataclysm.
The community of States, which had hitherto remained anarchical, has become
in fact an organized international society. This transformation is a fact
which does not require the consecration of an international agreement. This
society consists not only of States, groups and even associations of States,
but also of other international entities. It has an existence and a
personality distinct from those of its members. It has its own purposes. On
the other hand, international relations present various aspects : political,
economic, psychological, etc., and to-day possess a dynamic character,
complexity and variety which they did not show formerly.
All these transformations have had a great influence on international law :
a new international law has emerged. It is new for three reasons : it
includes new questions in addition to traditional questions in a new form ;
it rests on the basic reconstruction of fundamental principles of classical
international law, and brings them into harmony with the new conditions of
the life of peoples ; finally, it is based on the new social régime which
has appeared, the régime of interdependence, which is taking the place of
the individualistic régime which has, up to now, provided the basis of both
national and international life. This new régime has given rise to what may
be called social interdependence which is taking the place of traditional
indi7iidzialism. I prefer the expres-[p176]sion "social interdependence" to
"social solidarity" which has a variety of connotations.
The purposes of the new international law, based on social interdependence
differ from those of classical international law : they are to harmonize the
rights of States, to promote co-operation between them and to give ample
room to common interests; its purpose is also to favour cultural and social
progress. In short, its purpose is to bring about what may be called
international social justice.
To achieve these purposes this law must lay stress on the notion of
obligation of States, not only between themselves, but also toward the
international community. It must limit absolute international sovereignty of
States according to the new requirements of the life of peoples, and must
yield to the changing necessities of that life.
Because of these characteristics the new international law is not of an
exclusively juridical character. It has also political, economic, social,
and psychological characteristics.
It is not a mere abstraction, a doctrinal speculation without any foundation
in fact, as some would have it. In reality it takes root in the new
conditions and the new requirements of the life of peoples in numerous
recent social institutions of several countries in 'the international
judicial conscience which has been awakened mainly since the upheaval of
1914 ; in the Covenant of the League of Nations and in particular in the
United Nations Charter (preamble, Art. 1, 2, Chapters IV, V, IX, X, XI, XII,
XIII, etc.) and in several resolutions and drafts of the Assemblies of those
organizations ; and in the declarations of the heads of former allied
countries which have subsequently received the support of the people. It
also springs from various resolutions of the last Pan-american Conferences,
some of which tend to incorporate new great moral, political and social
ideas, either in continental international law, or in world international
law.
Therefore, the new international law has a more positive basis than
classical international law, which rests on principles and rules often
derived from speculation and from doctrines and customs, many of which have
become obsolete.
This new law is in formation. It is for the International Court of Justice
to develop it by its judgments or its advisory opinions, and in laying down
valuable precedents. The theories of jurists must also share in the
development of this law.
At this point, I want to stress the idea which I have already expressed in
previous individual opinions : the Court must not apply international law
such as it existed before the upheavals of 1914 and 1939 but must apply the
law which actually exists to-day. [p177]
Indeed, since that time the international life of peoples and, consequently,
the law of nations have consistently undergone profound changes and have
assumed new directions and tendencies which must be taken into
consideration.
The Court must, therefore, declare what is the new international law which
is based upon the present requirements and conditions of the life of peoples
: otherwise, it would be applying a law which is obsolete in many respects,
and would disregard these requirements and conditions as well as the spirit
of the Charter which is the principal source of the new international law.
In so doing, it may be said that the Court creates the law ; it creates it
by modifying classical law ; in fact it merely declares what is the law
to-day. Herein lies the new and important purpose of the Court.
The Court, moreover, already exercised this faculty of creating the law in
its Advisory Opinion concerning Reparation for injuries suffered in the
service of the United Nations ; it declared on that occasion that the United
Nations was entitled to present an international claim ; until that time
only States had been recognized as possessing this right.
The action of the International Court of Justice combined with the action of
the Assembly of the United Nations which has very broad international powers
(Article 10 of the Charter) will greatly contribute to the rapid development
of the new international law.
IV
To find the solution of the questions put to the Court in the present case,
let us now consider, according to the elements of the new international law,
what are the characteristics of international obligations and how
conventions and rules of international law are to be interpreted.
Because the new international law is based on social interdependence, many
cases may be found in which States are under obligations without the
beneficiary of the rights relating to these obligations being known. The
beneficiary is the international community. For the same reason it is not
necessary that all obligations be expressly laid down by a text. Because of
the diversity and the complexity of international relations it is not
possible to provide for every contingency. Many obligations result from the
very nature of institutions or the requirements of social life.
On the other hand, besides legal obligations there are also moral
obligations and obligations of a political international character or
duties. The latter derive from the interdependence of States and the
international organization. The duty to co-operate indicated in the United
Nations Charter is a typical example of this last [p178] category of
obligations. The non-performance of such obligations may result in political
sanctions applied by the United Nations.
In each case, the Court must decide whether a State has certain obligations
or not, and what is their nature.
The conventions and rules of international law are to be interpreted by
applying a criterion different from that which hitherto prevailed.
At present, the strict literal sense of the text is sought and to clarify
it, recourse is had to travaux préparatoires. Use is also made of-
postulates, axioms and traditional precepts of general law, in particular of
Roman law, and even natural law (except in Anglo-saxon countries where
attention is mostly paid to diplomatic precedents), and of postulates,
axioms and precepts of classical international law. Not only are the
immediate consequences not drawn from these elements, but deductions are
made, by pushing logic too far. To this end a whole juridical technique is
brought into play, and as a result, solutions are often found which are
unreasonable and unacceptable to public opinion.
Important studies have recently been published by publicists of authority on
the interpretation of treaties, but they follow the traditional line and,
therefore, are open to criticism.
In future, postulates, axioms and general principles of law or of
international law, which have hitherto been accepted may be relied upon only
after they have been subject to the test of close scrutiny because many of
them have become obsolete and may be replaced by others which will provide
the basis of the new international law. This work of reconstruction is
mainly a matter of doctrine, but it must also be effected by the
International Court of Justice whenever the opportunity arises.
Extreme logic, dialectics and exclusively juridical technique must also be
banished. Reality, the requirements of the life of nations, the common
interest, social justice, must never be forgotten.
An isolated text may seem clear, but it may cease to be so when it is
considered in relation to other texts on the same question and with the
general spirit of the institution concerned. In the latter case the spirit
must take precedence.
It may also happen that a text contains expressions of a clearly defined
legal scope, but that, by reason of the nature of the institution, these
expressions appear to have been taken in a different sense. This is exactly
the case of the questions now before the Court: the words "Mandate" and
"Trusteeship" have a different meaning in the Covenant and the Charter than
they have in domestic law.[p179]
Let us now consider the nature of the Mandate conferred upon the Union of
South Africa and its consequences on the questions before the Court in the
light of the provisions of the Covenant of the League of Nations and of the
United Nations Charter, and the spirit of the new international law. In this
connexion I shall not dwell upon the declarations of the Union Government or
its representatives, these declarations having been examined in the Court's
Opinion.
Under Article 22 of the League of Nations Covenant the well-being and
development of the inhabitants of colonies and territories which, as a
consequence of the war, had ceased to be under the sovereignty of the States
which formerly governed them, and were not capable of standing by themselves
under the strenuous conditions of the modern world, form a sacred trust of
civilization. The article goes on: "the best method of giving practical
effect to this principle is that the tutelage of such peoples should be
entrusted to advanced nations who, by reason of their resources, their
experience or their geographical position, can best undertake this
responsibility, and who are willing to accept it". Article 22 also lays down
the conditions and guarantees for the performance of that great trust.
The United Nations Charter has not only taken up these ideas, but it has
developed them (Chapters XI and XII).
Our starting point must be the existence of the sacred trust of
civilization. The ideas and aims contained in this expression and the
general principles of the new international law must be Our compass in Our
quest for the answers to the questions put to the Court. We must not resort
to a textual interpretation of certain articles of the Covenant or of the
Charter, or to minor considerations.
Article 119 of the Versailles Treaty provides that "Germany renounces in
favour of the Principal Allied and Associated Powers all her rights and
titles over her oversea possessions".
The Mandate over South-West Africa established by the Council of the League
on December 17th, 1920, says: "The Principal Allied and Associated Powers
agreed that, in accordance with Article 22 of the Covenant of the League of
Nations, a Mandate should be conferred upon His Britannic Majesty to be
exercised on his behalf by the Government of the Union of South Africa to
administer the territory afore mentioned."
The Union thus received not an ordinary mandate, but a sacred trust of
civilization, which is quite another thing. The act which has been created
is not a fidei-commissum, a trust or a contract deriving from any other
similar national or international institution. The ordinary Mandate is a
contract mainly in the interests [p180] of the principal, regulated by the
rules of civil law, whereas the mission under consideration is an honorific
and disinterested charge for the benefit of certain populations. It is an
international function regulated by principles which conform to its nature.
It is impossible, therefore to apply, even by analogy, the national rules
applicable to the Mandate or the other institutions which I have mentioned.
Nor is it a treaty between the League of Nations and the Union of South
Africa. The League of Nations has undertaken no obligation and has acquired
very important rights indicated in the Mandate. It has also other political
rights which have not been expressly provided for, such as the right to
terminate the Mandate.
VI
Very important consequences follow from the sacred trust of civilization
which is a characteristic of the international Mandate and from the new
international law, and these consequences will help us permit to find the
answer to the questions before the Court.
Here are the most important :
1° Since the creation of the Mandates System there are in international law
four categories of peoples : those which are still colonies or
protectorates; those backward civilizations which have not been placed under
a Mandate or Trusteeship; those which have been placed under one of those
regimes ; and finally, those which have reached a sufficient degree of
civilization and are fully developed States. In the past the peoples of the
second and third categories fell, like those in the first category, under
the domination of other peoples, for instance, the great Powers. Now they
are protected and must be prepared for independent life.
It is only to the peoples in the fourth category that international law
grants certain attributes which it does not grant to other groups, however
important they may be : independence, personality, sovereignty, legal
equality. These attributes are inherent in the State and are inalienable.
Because the peoples of the second and third categories which may be called
"States in the making" do not yet enjoy the status and the attributes of
fully-developed States, we need not attempt to determine, as has been done
at length, where sovereignty resides, whether with South-West Africa or with
the Union of South Africa. In fact, no question of sovereignty is raised :
the question does not arise with regard to South-West Africa. As to the
Union of South-Africa, she cannot exercise a sovereignty which the Man-dated
Territory does not possess. She has not acquired any sovereignty over the
Territory. She has only certain faculties, particularly [p181] in matters
of administration, under the mission which has been entrusted to her.
2° The Court, in considering the questions before it, must examine
critically the applicable postulates, the fundamental elements, and the
great principles of traditional international law. In particular :
a) it must stress the pre-eminence of international law over domestic law ;
b) it must adapt the concept of sovereignty to social interdependence ;
c) it must recognize and declare that States may have certain obligations
although these may not be formally expressed in a text.
3° The question of the international status of mandated territories is
entirely within the scope of international law. It can in no way be said
that it is part of the domestic jurisdiction of the mandatory State. The
matter must therefore be regulated by principles of international law. Any
act of the mandatory State contrary to international law or the nature of
the Mandate institution, such as a plebiscite, a more or less disguised
annexation, etc., is null and void and may even involve the liability of the
State.
4° Whilst the traditional international law concerns itself with the problem
of the succession of States, it does not consider succession between
international organs nor floes it consider succession between international
institutions because these are new problems and must be dealt with according
to the spirit of the new international law.
Three cases may arise :
A) An organization, for instance the League of Nations, is liquidated and is
not replaced by any other one. In that case there is no doubt that all
subordinate organs cease to function : the Council, the Assembly, etc. But
the effects of resolutions adopted by them do not come to an end. Likewise,
certain institutions created by these organs continue. Therefore, Mandates
conferred continue in existence, and it is impossible to apply here the
rules of private law to the effect that the Mandate terminates with the
disappearance of the mandator.
As we have seen, the Mandate created by the League of Nations is a sacred
trust of civilization, a social function which cannot terminate with the
League of Nations, even if no other organ takes its place. The countries
which have created this institution must safeguard those territories In the
present and the future. Should they lose interest, these territories may
fall back into the position they occupied before they were placed under
Mandate : they may be colonized, even annexed by other States, including the
former mandatory Power without this constituting a violation of the rules of
traditional international law.[p182]
B) An international organization like the League of Nations disappears and
another one is created, without any indication as to whether the latter
replaced the former. If the first organization has created an institution,
such as the Mandate, having for its purpose the same sacred trust of
civilization as the Trusteeship created by the second institution, then the
latter must be considered as succeeding the former ipso facto. There can be
no interruption in the continuous performance of this trust.
C) The new organization shows in what conditions an institution which it has
created will succeed a similar institution created by the previous
organization. In the present case the Charter has declared that mandated
territories will come under Trusteeship by virtue of agreements between the
United Nations and the former mandatory Power (Articles 75 and 77). As long
as this agreement has not been concluded the territorial status of
South-West Africa is that of a mandated territory with the obligations
resulting therefrom for the Union of South Africa. The Mandate, as I have
already said, continues. I shall refer to this point again under No. VII.
5° The mandatory State, in this case the Union of South Africa, cannot
modify unilaterally the international status of the territory under Mandate,
South-West Africa, nor can it modify any one of its obligations under the
Mandate.
6° The question whether the Union of South Africa was under obligation to
report on its administration to the United Nations has been discussed. Some
hold that this obligation existed only with regard to the League of Nations,
and that the latter's disappearance has put an end to the resulting
obligations. This reasoning, which is based on the application of principles
regulating the mandate in private law, cannot be accepted. The United
Nations has taken the place of the League of Nations and consequently the
United Nations Assembly has the right to request the presentation of the
report and to exercise control and supervision over the administration of
the South-West African Territory. With regard to this report and control we
need not confine ourselves to the obligations under the Mandate. We may also
consider those resulting from the provisions of Articles S7 and 88 of the
Charter.
7° The obligation for the Union of South Africa to transmit petitions from
the inhabitants of South-West Africa to the United Nations has been
discussed at length. This obligation derives from the nature of the Mandate
conferred by the League of Nations. It need not have been expressly provided
for.
8° It may happen that a mandatory State does not perform the obligations
resulting from its Mandat?. In that case the United Nations Assembly may
make admonitions, and if necessary, revoke the Mandate. It has this right
under Article 10 of the Charter. [p183]
9° The Assembly may terminate a mandate if it is established that the local
population is capable of governing itself, and it may do so in spite of the
contrary opinion of the mandatory State.
10° The United Nations, Assembly may also terminate a mandate for political
considerations. International Mandates are not, as we have already said,
ordinary contracts or treaties. They are a trust, a social function. The
Assembly having the faculty to confer that trust has also the faculty to
revoke it. In so doing, however, it must not abuse its right.
11° The mandatory State, in this case the Union of South Africa, cannot
unilaterally annex the mandated territory (South-West Africa) nor can it
proclaim its independence.
12° It may happen that the mandatory Power reports that the local population
over which it exercises a mandate will never be able, for anthropological or
other reasons, to reach a sufficient degree of civilization to become
capable of self-government. In that case, the United Nations Assembly
should call for an enquiry and if these statements are proved to be true, it
may authorize the mandatory Power to annex this territory, for it cannot
remain without a protector or a guide.
VII
We must give special attention to the question of whether the Union of
South-Africa is obliged to transform the Mandate conferred upon it by the
League of Nations into Trusteeship by concluding an agreement with the
United Nations. We must determine the exact scope and the spirit of Articles
75 and 77, and even of Article 80, No. 2, of the Charter.
It has been said that under these Articles the Union of South Africa has no
legal obligation to conclude an agreement with the United Nations to
transform its Mandate into Trusteeship, and that it only has the obligation
to negotiate this agreement.
In my opinion the Union of South-Africa is under the legal obligation not
only to negotiate this agreement, bat also to conclude it. This obligation
derives from the spirit of the Charter, which leaves no place for the future
co-existence of the Mandates System and the Trusteeship System. The latter
alone must exist as being the more appropriate.
On the other hand, the word "may" in Article 75 and the sentence "as may be
placed thereunder [the Trusteeship System] by means of subsequent
trusteeship agreements" in Article 77, referred to in support of the view
that there is no legal obligation [p184] to conclude such an agreement, may
also apply to the case when this obligation exists.
What is to be done if no agreement can be reached ? It then becomes
necessary to refer to arbitrat2ori. It would not be possible to admit that,
in an organized society under the régime of interdependence, an agreement
which is intended to fix an important international status cannot be
established solely because of the opposition, the negligence or the bad
faith of one of the parties. One would then have to seek an amicable
solution, or to submit the case to the International Court of Justice.
Even admitting that there is no legal obligation to conclude an agreement,
there is, at least, a political obligation, a duty which derives from social
interdependence and which can be sanctioned by the Assembly of the U.N.
This is the place to refer to the League of Nations Assembly Resolution of
1946, which said : "The Assembly .... takes note of the expressed intentions
of the Members of the League now administering territories under Mandate to
continue to administer them for the well-being and development of the
peoples concerned in accordance with the obligations contained in the
respective Mandates until other arrangements have been agreed between the
United Nations and the respective mandatory Powers."
VIII
The foregoing considerations make it possible to formulate the answers to
the questions put to the Court by the United Nations Assembly :
I. The international status of the South-\Vest African territory is the same
as that which existed under the League of Nations until an arrangement is
agreed upon between the Union of South Africa and the United Nations.
(a) The Union of South Africa has therefore the same international
obligations as under the Mandate conferred upon her by the League of Nations
and those resulting from Article 22 of the Covenant. In particular it is
under obligation to report on its administration to the United Nations
Assembly. The latter is qualified to exercise control in this respect. It
has this faculty under Article IO of the Charter.
(b) The provisions of Chapter XII of the Charter apply to the Territory of
South-West Africa. This is in harmony with the spirit of the Charter.
The Union of South Africa under Articles 75, 77 and 80, No. 2, of the
Charter, and especially in accordance with the spirit of the Charter, has
the legal obligation to negotiate and conclude an agreement with the United
Nations to place South-West Africa under Trusteeship. If this agreement
cannot be made, the case must be referred to arbitration. [p185]
Even if it be admitted that South Africa is under no legal obligation to
conclude this agreement, it has at any rate the political international
obligation or a duty to conclude such an agreement. If it is impossible to
reach such an agreement, the United Nations must then take the appropriate
measures which it is empowered to take under Article IO of the Charter.
(c) The Union of South Africa is not competent unilaterally to modify the
international status of South-West Africa. This competence belongs to the
Union of South Africa acting in concert with the United Nations under
Article 79 of the Charter.
(Signed) A. Alvarez. [p186]
DISSENTING OPINION OF Mr. DE VISSCHER
[ Translation.]
I regret that I am unable to concur in the second part of the Court's answer
to the question under letter (b). I concede that the provisions of Chapter
XII of the Charter do not impose on the Union of South Africa a legal
obligation to conclude a Trusteeship Agreement, in the sense that the Union
is free to accept or to refuse the particular terms of a draft agreement. On
the other hand, I consider that these provisions impose on the Union of
South Africa an obligation to take part in negotiations with a view to
concluding an agreement. In this respect, the Court's answer falls short of
XI opinion on the obligations resulting from the Charter for the Mandatory
Power. My opinion is based on an interpretation of tests which differs from
that adopted in the Court's Opinion.
The Opinion says : "The Charter has contemplated and regulated only a single
system, the International Trusteeship System. It did not contemplate or
regulate a co-existing Mandates System." Furthermore, the relevant articles
of Chapter XII dealing with the International Trusteeship System are clearly
imperative: Article 75 : "The United Nations shall establish under its
authority an International Trusteeship System...." , "L'Organisation des
N'ations Unies établira, sous son autorité, un régime de tutelle...." ;
Article 77 : "The Trusteeship System shall apply...." ; "Le Régime de
Tutelle s'appliquera....".
The Mandates System was maintained by Article 80 of the Charter only as a
transitional measure. The terms of the first paragraph alone : "and until
such agreements have been concluded" exclude the possibility of prolonged
co-existence of the two régimes. As to Article 80, paragraph 2, its legal
bearing in this connexion is clearly defined. It provides that the preceding
paragraph, which maintains the status quo until such agreements have been
concluded (the so-called safeguarding clause), "shall not be interpreted as
giving grounds for delay or postponement of the negotiation and conclusion
of agreements for placing mandated and other territories under the
Trusteeship System as provided for in Article 77".
I consider that the Opinion does not give to these provisions their proper
place in the general framework of the provisions of Chapter XII, and, as a
result, does not deduce from them all the consequences which follow
therefrom. The Opinion minimizes their import to the point of considering
them merely as expres-[p187] sing the expectation that "the mandatory States
would follow the normal course indicated by the Charter, namely, conclude
Trusteeship Agreements".
It is an acknowledged rule of interpretation that treaty clauses must not
only be considered as a whole, but must also be interpreted so as to avoid
as much as possible depriving one of them of practical effect for the
benefit of others. This rule is particularly applicable to the
interpretation of a text of a treaty of a constitutional character like the
United Nations Charter, above all when, as in this case, its provisions
create a well-defined international régime, and for that reason may be
considered as complementary to one another.
I cannot readily believe that the authors of the Charter would have warned
the mandatory Powers, by means of an express and particularly emphatic
provision, that the negotiation and conclusion of Trusteeship Agreements
could not, by reason of the status quo temporarily guaranteed under Article
80, paragraph 1, "give grounds for delay or postponement" if the scope of
this provision amounted simply to the expression of an expectation or, at
the most, of a wish or an advice. The terms of article 80, paragraph 2, do
not favour this interpretation.
The negative character of the phrase is not an argument in favour of the
absence of an obligation. The warning given to the mandatory Powers that the
status quo referred to in the preceding paragraph gives no valid ground for
delaying or postponing the agreements which, as will be shown later, are
the instrument for the application of the Trusteeship System, is clearly, in
my opinion, a direction to those Powers to be ready, at the earliest
opportunity, to negotiate with a view to concluding such agreements. What
Article 80, paragraph 2, intended to prevent was that a mandatory Power,
while invoking on the one hand the disappearance of the League of Nations,
should refuse on the other hand to recognize the United Nations or to
consider submitting itself to the only régime contemplated in the Charter,
namely, the Trusteeship System. What this same provision intended to enact
was that the mandatory Power should take appropriate measures for the
negotiation of a Trusteeship Agreement.
If, as has already been said, we must endeavour to reconcile the texts
rather than to set them in opposition to one another, and attempt to give
each one its due by preserving its practical effect within the system as a
whole, we are led to the following conclusions.
The wording of Articles 75, 77 and 79 is permissive in the sense that the
placing under Trusteeship is contingent upon the conclusion of subsequent
agreements, the mandatory Power being free to accept or to reject the terms
of a proposed agreement. [p188]
This is where the so-called "optional" character of the Trusteeship appears.
It is impossible, however, to reconcile these permissive provisions with
Article 80, paragraph 2, and with the clear intent of the authors of the
Charter to substitute the Trusteeship System for the Mandates System,
without admitting that the mandatory Power, while remaining free to reject
the particular terms of a proposed agreement, has the legal obligation to be
ready to take part in negotiations and to conduct them in good faith with a
view to concluding an agreement.
That an obligation so understood may form the valid and practical object of
an international undertaking has been clearly recognized by the Permanent
Court of International Justice in the following passage in its Advisory
Opinion of October 15th, 1931 : "The Court is indeed justified in
considering that the engagement incumbent on the two Governments in
conformity with the Council's Resolution is not only to enter into
negotiations, but also to pursue them as far as possible with a view to
concluding agreements." The Court added, however : "But an obligation to
negotiate does not imply an obligation to reach an agreement. “ [FN1]
----------------------------------------------------------------------------------------------------------------------------
[FN1]
Publications of the Permanent Court of International Justice, Series A/B,
fasc. No. 42, p. 116.
----------------------------------------------------------------------------------------------------------------------------
It is reasonable to believe that Article 80, paragraph 2, which mentions
"the conclusion" in addition to "the negotiation", had no other meaning :
the obligation to be ready to negotiate with a view to concluding an
agreement.
Nor should we overlook the psychological value of the opening of
negotiations, particularly when the object of the negotiations, as is the
case here, is only to apply in practice principles forming part of a
pre-established international régime. The opening of such negotiations is
often a decisive step toward the conclusion of an agreement.
Difficulties of interpretation have arisen in connexion with the word
"voluntarily" which appears in Article 77 only in respect of territories in
category (c). It seems to me impossible that this provision, which is so
clearly in contrast with the absence of any similar indication regarding
territories in categories (a) and (b), should have been inserted without any
definite purpose and should not correspond in the general framework of the
system to a. well-defined interest.
The word "voluntarily" has here the meaning of "spontaneously". It defines
the unilateral act by which a State, while free from any obligation, decides
of its own initiative to place a territory under the Trusteeship System by
concluding a subsequent agreement as indicated in Chapter XII. It would be
distorting the natural meaning of the word "voluntarily" and depriving it of
its signification in the context to treat it as an equivalent of by
agreement, thus making it a synonym to the terms "by means [p189] of
Trusteeship Agreements" which appear at the beginning of Article 77, or the
terms "a subsequent agreement" in paragraph 2 of the same article. The
Trusteeship Agreement is a condition common to the three categories of
territories enumerated by Article 77 as territories which may be placed
under Trusteeship, whereas, on the contrary, the voluntary decision, that is
the spontaneous decision of a State to place under Trusteeship a territory
in category (c), is a condition peculiar to the last category. The decision
precedes the agreement; it is by no means identified with it.
The term "voluntarily" which thus finds its own place in the context and its
practical effect, shows that it is only with regard to territories in
category (c) that the conclusion of a Trusteeship Agreement has been
contemplated by the Charter as being free from any pre-existing obligation,
even in the realm of negotiations. The difference in the wording is easy to
explain by taking into consideration the differences between the territories
enumerated in Article 77 from the point of view of the international
interest which they respectively presented at the time of the drafting of
the Charter : those in category (a) were already subject to an international
régime, and moreover, were clearly known and defined ; those in category (b)
were detached from enemy States by the common victory of the Allied Powers.
For various reasons they both possessed an international element, which
marked them out as being prima facie the necessary objects of regulation by
international agreement. The position of territories in category (c) was
quite different in this respect. Complete freedom of decision was left to
the States responsible for their administration to place them "voluntarily"
under the system and consequently to consent to negotiations to that effect,
or to refuse to take part in such negotiations.
The Charter has created an international system which would never have had
more than theoretical existence if the mandatory Powers had considered
themselves under no obligation to negotiate agreements to convert their
Mandates into Trusteeship Agreements. In fact, apart from instances of
accession to independence and from the case of Palestine, all mandatory
Powers other than the Union of South Africa have consented to this
conversion. The obligation to be ready to negotiate with a view to
concluding an agreement represented the minimum of international
co-operation without which the entire régime contemplated and regulated by
the Charter would have been frustrated. In this connexion one must bear in
mind that in the interpretation of a great international constitutional
instrument, like the United Nations Charter, the individualistic concepts
which are generally adequate in the interpretation of ordinary treaties, do
not suffice. Under Article 76 of the Charter, "the basic objectives of the
Trusteeship System" conform to "the purposes of the United Nations laid down
in Article I of the present Charter". In [p190] recognizing its obligation
to be ready to negotiate with a view to concluding a Trusteeship Agreement,
a mandatory Power, without thereby jeopardizing its freedom to accept or
refuse the terms of such an Agreement, co-operates in a particularly
important field in the attainment of the highest objectives of the United
Nations.
(Signed) Ch. De Visscher. [p191]
DISSENTING OPINION OF JUDGE KRYLOV
[Translation.]
I share the Court's Opinion on the General Question and on Questions (a)
and (c) put by the Assembly. I would observe, however, that the analysis of
Article 79, as given by the Court, does not exhaust all the questions which
may be raised in this connexion.
But I cannot concur in the second part of the reply given by the Court to
Question (b). My reasons are as follows :
In its Opinion, the Court notes that : (a) the Charter contemplated only the
Trusteeship System ; (b) the Charter did not contemplate the continuance of
the Mandates System in addition to the Trusteeship System. On the other
hand, the Court is of the opinion that the Charter does not impose upon the
Union of South Africa an obligation to place the Territory under the
Trusteeship System.
In its reasoning, the Court stresses the permissive wording of Chapter XII
of the Charter, in respect of the conclusion of Trusteeship Agreements. In
my opinion, however, this is due to the fact that the Territory under
Mandate need not necessarily be placed under the Trusteeship System,
because it may be proclaimed independent (and this is the only other
possibility).
I think that the letter and the spirit of the Charter alike lead to only one
interpretation, namely: that the Union of South Africa is under the legal
obligation to negotiate with a view to concluding a Trusteeship Agreement
for placing the mandated Territory under the Trusteeship System. In barring
expressly the possibility of postponing or delaying the negotiation and the
conclusion of Trusteeship Agreements, Article 80, paragraph 2, implies the
existence of a legal obligation to negotiate with a view to concluding such
agreements. Any other interpretation would deprive Article 80, paragraph 2,
of any meaning whatever, which would be contrary to a well-established rule
of interpretation of international treaties.
The obligation of the mandatory Power to negotiate with a view to concluding
the Trusteeship Agreement is also clearly demonstrated in Article 77,
paragraph I (c), of the Charter. This article declares that colonial
territories may be placed under the Trusteeship System by States responsible
for their administration by voluntary procedure only. Thus, the Charter
contains different provisions for territories mentioned under (a) and (b) of
this paragraph. In particular, territories under Mandate [p192] are to be
placed under the Trusteeship System by the method already indicated
(negotiation with a view to concluding an agreement).
The Court's answer to the second part of Question (b) may prolong the
co-existence of the Mandate System and the Trusteeship System. This would
be contrary to the intentions of the authors of the Charter, who expected
mandatory States to follow without delay the normal course indicated by the
Charter and conclude Trusteeship Agreements.
(Signed) S. Krylov. [p193]
ANNEX
List of documents submitted to the Court by the Secretary-General of the
United Nations in application of Article 65 of the Statute
1
DOCUMENTS TRANSMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE
SECRETARY-GENERAL IX ACCORDANCE WITH RESOLUTION 338 (IV) ADOPTED BY THE
GENERAL ASSERIBLY ON 6 DECEMBER, 1949
|
CONTENTS |
|
|
I. Documentation relating to the
mandates system |
|
Folder I. |
|
|
|
|
|
The Treaty of Peace between the Allied
and
Associated Powers and Germany, 28 June,
1919 - Part IV - German rights and
interests
outside Germany (excerpt) - Articles
118-
127. |
|
|
The Treaty of Peace between the Allied
and
Associated Powers and Germany, 28 June,
1919 - Part 1 - The Covenant of the
League
of Nations (excerpt) - Article 22.
|
|
|
League of Nations - The records of the
First
Assembly - Meetings of the Committees
(II)
- Minutes of the Sixth Committee -
Allocation of mandates (Annex 17 b;
Appendix 2).
|
|
|
Terms of League of Nations Mandates -
Man-
date for German South-West Africa.
|
|
|
Document republished by the United
Nations
[A/70].
|
|
|
League of Nations - Treaty Series -
Publication of treaties and international engagements registered
with the Secretariat of the League of Nations - No. 310. - Treaty
concerning the re-establishment of peace between Germany and the
United States of America, signed at Berlin, 25 August, 1921
(excerpt).
[Volume XII, 1922, Numbers 1, 2, 3 and
4.] |
|
|
Constitution of a Permanent Mandates
Commission approved by the Council on 1 December, 1920.
|
|
|
See below: League of Nations -
Responsibilities of the League arising out of Article 22 (Mandates)
- Report by the Council to the Assembly - Annex 14.[p194]
|
|
|
League of Nations - Official Journal -
Minutes of the sixteenth session of the Council - Second meeting
(excerpt) - 531. Allowances to members of the Permanent Mandates
Commission. [3rd Year, No. 2 - February, 1922.]
|
|
|
League of Nations - Official Journal -
Minutes of the forty-sixth session of the Council - Fourth meeting
(excerpt) - Question of the appointment of an additional member on
the Permanent Mandates Commission. [8th Year, No. 10 - October,
1927.]
|
|
|
League of Nations - Permanent Mandates
Commission - Rules of procedure submitted for the approval of the
Council of the League of Nations. C.404. M.295. 1921. VI.]
|
|
|
Rules of procedure of the Permanent
Mandates Commission.
|
|
|
See above League of Nations - Official
Journal - Minutes of the sixteenth session of the Council - Second
meeting (excerpt) - Paragraph 535. [3rd Year, No. 2 - February,
1922.]
|
|
|
League of Nations - Permanent Mandates
Commission - Rules of procedure. [C.404(2). M. 295(2). 1921. VI.]
|
|
|
Obligations falling upon the League of
Nations
under the terms of Article 22 of the
Covenant
(Mandates). (Report presented by the
Belgian
Representative, M. Hymans, and adopted
by
the Council of the League of Nations at
San
Sebactian on 5 August, 1920.)
|
|
|
See below League of Nations -
Responsibilities
of the League arising out of Article 22
(Mandates) - Report by the Council to the Assembly
- Annex 4.
League of Nations - Responsibilities of
the League arising out of Article 22 (Mandates) - Report by the
Council to the Assembly [20/48/161].
|
|
|
League of Nations - Official Journal -
4th Year, No. 3, March, 1923 - Twenty-third session of the Council -
Procedure in respect of petitions regarding inhabitants of mandated
territories (Annex 457). [C.44(1). M.73 1923. VI.]
[p195]
|
|
|
League of Nations - Permanent Mandates
Commission - Minutes of the twelfth session (including the Report
of the Commission to the Council) - Annex 4: Summary of the
procedure to be followed in the matter of petitions concerning
mandated territories. [C.545. M.194. 1927. VI.]
|
|
|
League of Nations - "C" Mandates -
Questionnaire intended to facilitate the preparation of the annual
reports of the mandatory Powers, lC.397. M.299. 1921. VI.]
|
|
|
League of Nations - B and C Mandates -
List of questions which the Permanent Mandates Commission desires
should be dealt with in the annual reports of the mandatory Powers.
[A. 14. 1926. VI.]
|
|
|
The Mandates System: Origin,
Principles, Application.
|
|
|
See Series of League of Nations
Publications, Geneva, April 1945. [VI. A. Mandates, 1945, VI. A. I.]
|
|
|
League of Nations - Official Journal -
Special Supplement No. 194 - Records of the twentieth (conclusion)
and twenty-first ordinary sessions of the Assembly:
|
|
|
Second plenary meeting (excerpt) -
Speech
by Mr. Leif Egeland (Union of South
Africa).
|
|
|
Fourth plenary meeting (excerpt) -
Speech
by Professor Bailey (Australia).
|
|
|
Seventh plenary meeting (excerpt).
Minutes of the First Committee (General
Questions) - Third meeting (excerpt): I0. Assumption by the United
Nations of certain functions, powers and activities of the League
(continued): Mandates System.
|
|
|
Annex 24 C. - Mandates [resolution].
|
|
|
II. Charter of the United Nations |
|
Folder 2. |
|
|
Chapters XII and XIII of the
Charter.[p196] |
|
|
III. Records of the United Nations
Conference on international organization, San Francisco, 1945 |
|
Folder 3. |
|
|
Meeting of the heads of delegations to
organize the Conference. |
|
|
Meeting of the heads of delegations to
organize the Conference, 26 April, 1945 [29, DC/4] (excerpt). |
|
|
Plenary sessions of the Conference. |
|
|
Records of proceedings. |
|
|
Verbatim minutes of the second plenary
session, 27 April, 1945, speech by Mr. Forde (Australia) [20, P/6] |
See Volume I*, pp. 177 and 178.
|
|
Addendum to verbatim minutes of the
fifth plenary session, 30 April, 1945 [42, P/10 (a)] |
See volume 1, pp. 401 to 405
|
|
Verbatim minutes of the seventh plenary
session, I May, 1945 [58, P/15], speech by Mr. Fraser (New Zealand) |
See Volume 1, p. 512.
|
|
Commission II - General Assembly.
|
|
|
Records of proceedings.
|
|
|
Summary of meeting of Commission and
committee officers, 3 May, 1945 [83, II/3] |
See Volume 8.
pp. 4 to 9.
|
|
Terms of reference for Commission II,
Statement by the President, 3 May, 1945 [74, II/2] |
See Volume 8, pp. 15 and 16.
|
|
Committee II/4 - Trusteeship System.
|
|
|
Records of proceedings.
|
|
|
Summary report of 1st meeting, 5 May,
1945 [113, II/4/2]
|
See Volume 10, pp. 423 and 424.
|
|
* All references in this column are to
volumes of the Documents of the United Nations Conference on
International Organization, San Francisco, 1945, United Nations
Information Organizations, London, New York.
|
|
[p197]
Summary report of 2nd meeting, 10 May,
1945
[24I, II/4/7]
|
See Volume 10, pp. 428 and 429.
|
|
Summary report of 3rd meeting, II May,
1945 [260, II/4/8]
|
See Volume 10, pp. 433 and 434.
|
|
Summary report of 4th meeting, 14 May,
1945 [310, II/4/II]
|
See Volume 10,pp. 439 to 441.
|
|
Summary report of 5th meeting, 15 May,
1945
[364, II/4/13]
|
See Volume 10, pp. 446 and 447.
|
|
Summary report of 6th meeting, 17 May,
1945
[404, II/4/17]
|
See Volume 10, pp. 452 to 454.
|
|
Corrigenda to the summary report of the
6th meeting, 17 May, 1945 [404, II/4/17 (1)]
|
See Volume 10 p.454.
|
|
Summary report of 7th meeting, 18 May,
1945
[448, II/4/18]
|
See Volume 10, pp. 459 and 460.
|
|
Summary report of 8th meeting, 22 May,
1945
[512, II/4/21]
|
See Volume 10, pp. 468 to 470.
|
|
Summary report of 9th meeting, 23 May,
1945
[552, II/4/23]
|
See Volume 10, pp. 475 to 478.
|
|
Summary report of 10th meeting, 24 May,
1945 [580, II/4/24]
|
See Volume 10, pp. 485 to 488.
|
|
Summary report of 11th meeting, 31 May,
1945 [712, II/4/30]
|
See Volume 10, pp. 496 to 500.
|
|
Summary report of 12th meeting, I June,
1945
[735, II/4/31]
|
See Volume 10, pp. 506 and 507.
|
|
Summary report of 13th meeting, 8 June,
1945
[877, II/4/35]
|
See Volume 10, pp. 513 to 518.
|
|
Summary report of 14th meeting, 15
June, 1945 [1018, II/4/38]
|
See Volume 10, pp. 543 to 548.
|
|
Summary report of 15th meeting, 18
June, 1945 [1090, II/4/43]
|
See Volume 10, pp. 561 to 564.
|
|
Summary report of 16th meeting, 20
June, 1945 [1143, II/4/46]
|
See Volume 10, pp. 601 to 603.
|
|
[p198]
Documents. |
|
|
Opinion of the Department of Foreign
Relations of Mexico [2, G/7 (c)]
|
See Volume 3, pp 139 to 142, 145 to 148
and 162.
|
|
Observations of the Government of
Venezuela
[2, G/7 (d) (l)]
|
See Volume 3, pp. 222 and 223.
|
|
Comments and amendments by the
delegation of Ecuador [2, G/7 (p)]
|
See Volume 3, p. 427.
|
|
Amendment submitted on behalf of
Australia
[2, G/14 (l)]
|
See Volume 3, pp. 548 and 549.
|
|
International Trusteeship System,
French preliminary draft [2, G/26 (a)]
|
See Volume 3, pp. 604 to 606.
|
|
Arrangements for international
trusteeship, additional chapter proposed by the United States [2,
G/26 (c)]
|
See Volume 3, pp. 607 and 608.
|
|
Territorial trusteeship, United Kingdom
draft of chapter for inclusion in United Nations Charter [2, G/26
(d)]
|
See Volume 3, pp. 609 to 614.
|
|
Draft proposals of the Chinese
delegation on international territorial trusteeship [2, G/26 (e)]
|
See Volume 3, pp. 615 to 617.
|
|
Analysis of papers presented by
Australia, China, France, United Kingdom and United States [230,
II/4/5]
|
See Volume 10, pp. 641 to 655.
|
|
Amendments of the Soviet delegation to
the United States draft on trusteeship system [2, G/26 (f)]
|
See Volume 3, pp. 618 and 619.
|
|
Supplement to analysis of papers
presented by Australia, China, France, United Kingdom and
United States - Analysis of proposal on
trusteeship of the Soviet Union entitled "Amendments of the Soviet
delegation to the United States draft on trusteeship system" [324,
II/4/5 (a)
|
See Volume 10, pp. 671 to 673. |
|
[p199] Proposed working paper for
chapter on dependent territories and arrangements for international
trusteeship [323, II/4/12]
|
See Volume 10, pp. 677 to 683.
|
|
Proposed new part (c) to be added to
working paper submitted by the delegation of Australia [575, II/4/12
(a)]
|
See Volume 10, pp. 695 and 696. |
|
Amendment proposed by the delegation of
Guatemala, 14 May, 1945 [386, II/4/15]
|
See Volume 10, p. 463.
|
|
Revised amendment proposed by the
delegation of Guatemala, 16 May, 1945 [405, II/4/15 (l)]
|
See Volume 10, p.465 |
|
Additional provisions to be included in
the chapter on trusteeship submitted by the delegation of Egypt
[871, II/4/34]
|
See Volume 10, p. 510.
|
|
Working paper for chapter on dependent
territories and arrangements for international trusteeship [892,
II/4/36]
|
See Volume 10, pp. 525 to 528.
|
|
Proposed text for chapter on dependent
territories and arrangements for international trusteeship [912,
II/4/37]
|
See Volume 10, pp.533 to 536 |
|
Text of section B of chapter on
dependent territories and arrangements for international trusteeship
[1010, II/4/37 (l)]
|
See Volume 10, pp. 555 to 558 |
|
Redraft of working paper, Section A
[WD. 390,
II/4/42]
|
See Volume 10, pp. 570 and 571.
|
|
Draft report of the rapporteur of
Committee II/4 [1091, II/4/44]
|
See Volume 10, pp. 574 to 580 |
|
Annex A to report of rapporteur of
Committee II/4
|
See Volume 10, pp. 581 to 585.
|
|
Annex B to report of rapporteur of
Committee II/4
|
See Volume 10, p. 586.
|
|
Report of the rapporteur of Committee
II/4 [1115, II/4/44 (I) (a)]
[p200] Annex A to report of rapporteur
of Committee II/4
|
See Volume 10, pp. 607 to 613.
See Volume 10, pp. 614 to 618.
|
|
Annex B to report of rapporteur of
Committee II/4
|
See Volume 10, p. 619.
|
|
Annex C - Joint statement by the
delegates of the United Kingdom and the United States
|
See Volume 10, pp. 620 and 621.
|
|
Annex D - Statement by the delegate of
France
|
See Volume 10, p. 622.
|
|
Sub-Committee II/4/A.
Documents.
|
|
Text of working paper as approved and
amended in full committee through the tenth meeting, 24 May, 1945
[WD. 33, II/4/A/I]
|
See Volume 10, pp. 701 to 703.
|
|
Text of paragraph A-I adopted by the
Sub-Committee in the meeting of I June, 1945
[727, II/4/A/2]
|
See Volume 10, p. 707.
|
|
Section B of chapter on dependent
territories and arrangements for international trusteeship [1044,
II/4/37 (2)]
|
See Volume 10, pp. 709 to 712.
|
|
Commission II - General Assembly.
Records of proceedings.
|
|
Verbatim minutes of 3rd meeting of
Commission II, 20 June, 1945 [1144, II/16]
|
See Volume 8, pp. 125 to 154.
|
|
Corrigendum to verbatim minutes of 3rd
meeting of Commission II, 20 June, 1945 [1208, II/16 (I)]
|
See Volume 8, pp. 155 to 159.
|
|
Co-ordination Committee.
Records of proceedings.
|
|
Summary record of 37th meeting, 20
June, 1945 [WD. 437, CO/201] (excerpt). [English only.]
|
|
|
Summary record of 40th meeting, 22
June, 1945 [WD. 440, CO/204] (excerpt). [English only.]
|
|
|
[p201] Summary record of 41st meeting,
23 June, 1945 [WD. 441, CO/205] (excerpt). [English only.]
Documents.
|
|
|
Trusteeship Chapter, Section A, adopted
by
Committee II/4, 20 June, 1945. [WD.
414,
CO/174.]
|
|
|
Trusteeship Chapter, Section B, adopted
by
Committee II/4, 15 June, 1945. [WD.
374,
CO/154.]
|
|
|
Trusteeship Chapter, Section B, adopted
by Committee 1114, IS June, 1945 [WD. 393, CO/154 (I)]. [English
only.]
|
|
|
Chapter XII, Declaration concerning
Non-Self-Governing Territories. [WD. 411, CO/171.]
|
|
|
Chapter XII, Policy regarding Non-Self-
Governing Territories [1134, CO/171
(I)]
|
See Volume 15, pp. 104 to 106.
|
|
Chapter XII (A), International
Trusteeship System. [WD. 412, CO/172.]
|
|
|
Chapter XII (X), International
Trusteeship System [1138, CO/1172 (I)]
|
See Volume 15, pp. 107 to 113.
|
|
Chapter XII (B), The Trusteeship
Council.
[WD. 413, CO/173.]
|
|
|
Chapter XII (Y), The Trusteeship
Council
[1137, CO/173 (I)]
|
See Volume 15, pp. 114 to 116.
|
|
Draft Charter of the United Nations as
finally approved in English by both the Co-ordination Committee and
the Advisory Committee of Jurists on 22 June, 1945. The text in
French was approved in part by the Advisory Committee of Jurists on
22 June, 1945 [1159, CO/181]
|
See Volume 15, pp. 170 to 212.
|
|
Plenary sessions of the Conference.
Records of proceedings.
|
|
Verbatim minutes of the 9th plenary
session, 25 June, 1945 [1210, P/20]:
Speech by the rapporteur of Commission
II
|
See Volume 1, pp. 622 and 623,
|
|
Speech by the rapporteur of the
Steering
Cornmittee
Speech by Lord Halifax
|
pp. 626 and 629, p. 631.
|
|
[p202] Verbatim minutes of the closing
plenary session, 26 June, 1945 [1209 P/19]: |
See Volume 1, p. 661, |
|
Speech by Mr. Koo (China)
|
|
|
Speech by Mr. Gromyko (Union of Soviet
Socialist Republics)
|
p. 664,
|
|
Speech by Field-Marshal Smuts (Union of
South Africa)
|
p. 678.
|
|
Documents.
|
|
Report of the rapporteur of Commission
II to the plenary session [1177, II/18]
|
See Volume 8, pp. 249 to 256.
|
|
Revised report of the rapporteur of
Commission
II to the plenary session [1180, II/18
(1)]
|
See Volume 8, pp. 265 to 272.
|
|
Charter of the United Nations and
Statute
of the International Court of Justice
|
See Volume 15, pp.335 to 364
|
|
IV. Records of the General Assembly,
first part of the First
Session
Folder 4.
Inclusion of item in the agenda.
Documents.
|
|
Agenda for the first part of the First
Session of the General Assembly.
|
|
|
Reference of items from the agenda of
the General Assembly and the report of the Preparatory Commission to
the Committees of the General Assembly - Report of the General
Assembly (Annex 2 c)
|
A/9.
|
|
Folder 5.
Plenary meetings of the General
Assembly.
Records of proceedings.
|
|
12th plenary meeting (excerpt) -
Discussion of the report of the Preparatory Commission - Speech by
Mr. Nicholls (Union of South Africa).
|
|
|
Folder 6.
Fourth Committee.
Records of proceedings and documents.
|
|
Summary record of meetings from 1st to
12th meeting and annexes.
|
|
|
[p203] Folder 7.
Plenary meetings of the General
Assembly.
Records of proceedings and document.
|
|
27th plenary meeting -
Non-Self-Governing Peoples: report of the Fourth Committee:
resolutions (A/34).
|
|
|
Non-Self-Governing Peoples - Report of
the Fourth Committee to the General Assembly (Annex 13)
|
A/34.
|
|
Folder 8.
Plenary meetings of the General
Assembly.
Resolution.
|
|
Resolutions adopted on the report of
the Fourth Committee - 9 (I). Non-Self-Governing Peoples.
|
|
|
V. Records of the General Assembly,
second part of the First
Session
Folder 9.
Inclusion of item in the agenda.
Documents.
|
|
Agenda for the second part of the First
Session of the General Assembly.
|
|
|
Allocation of agenda items to
Committees - Report of the General Committee to the General Assembly
(Annex 30)
|
A/163.
|
|
Folder 10.
Fourth Committee.
Records of proceedings.
|
|
14th meeting.
|
|
|
15th meeting.
|
|
|
16th meeting.
|
|
|
17th meeting.
|
|
|
18th meeting.
|
|
|
19th meeting.
|
|
|
20th meeting.
|
|
|
[p204]Folder II.
Fourth Committee.
Documents.
|
|
Suggested procedure for the
consideration of items on the agenda of the Fourth Committee -
Memorandum prepared by the Secretariat Annex 10)
|
A/C.4/59.
|
|
Statement by Mr. Novikov,
representative of the Union of Soviet Socialist Republics (Annex II)
|
A/C.4/57. |
|
Communications concerning Trusteeship
Agreements- - Memorandum prepared by the Secretariat (Annex 12)
|
A/117.
|
|
Report of the Secretary-General on
Trusteeship Agreements (Annex 12 a)
|
A/135.
|
|
Delegation of India: draft resolution
concerning the Administering Authority in Trust Territories (Annex
12 b)
|
A/C.4/33.
|
|
Delegation of China: draft resolution
on Trusteeship Agreements (Annex 12 c)
|
A/C.4/64.
|
|
Statement by the Union of South Africa
on the outcome of their consultations with the peoples of South-West
Africa as to the future status of the mandated Territory and
implementation to be given to the wishes thus expressed (Annex 13)
|
A/123.
|
|
Statement by Field-Marshal the Right
Hon. J. C. Smuts, representative of the Union of South Africa (Annex
13 a)
|
A/C.4/41.
|
|
Delegation of Egypt: draft resolution
concerning procedure with respect to consideration of the
statement of the Government of the Union of South Africa with
reference to South-West Africa (Annex 13 b)
|
A/C.4/47.
|
|
Delegation of India: draft resolution
relating
to South-West Africa (Annex 13 c)
|
A/C.4/65.
|
|
Communications received by the
Secretariat relating to territories to which the trusteeship system
might apply in accordance with Article 77 of the Charter -
Memorandum prepared by the Secretariat
|
|
|
Annex 16 |
A/C.4/37.
|
|
Annex 16 a
|
A/C.4/37/Add. I.
|
|
Annex 16 b
|
A/C.4/37/Add.2 |
|
Report of Sub-Committee 2 (Annex 21)
|
A/C.4/68.
|
|
[p205] Folder 12.
Sub-Committee 2 of the Fourth
Committee.
Records of proceedings.
|
|
1st meeting (excerpt).
|
|
|
2nd meeting (excerpt).
|
|
|
7th meeting (excerpt).
|
|
|
8th meeting.
|
|
|
9th meeting.
|
|
|
10th meeting.
|
|
|
13th meeting (excerpt).
|
|
|
Folder 13.
Sub-Committee 2 of the Fourth
Committee.
Documents.
|
|
Composition of Sub-Committee 2 and
proposed procedure-Memorandum by the Secretariat (Annex I)
|
A/C.4/Sub.2/2 |
|
Procedure to be followed in relation to
the remaining work of the Sub-Committee - Proposal submitted by the
rapporteur (Annex I a)
|
A/C.4/Sub.2/13.
|
|
Procedure to be followed in relation to
the statement of the Government of the Union of South Africa -
Proposal submitted by the rapporteur (Annex 4)
|
A/C.4/Sub.2/30.
|
|
Draft report by the rapporteur for
submission
to the Fourth Committee (Annex 5)
|
A/C.4/Sub.2/43.
|
|
Folder 14.
Fourth Committee.
Records of proceedings and document.
|
|
21st meeting.
|
|
|
25th meeting (excerpt).
|
|
|
Statement by the Union of South Africa
on the outcome of their consultations with the peoples of South-West
Africa as to the future status of the mandated territory and
implementation to be given to the wishes thus expressed - Report of
the Fourth Committee (Annex 76)
|
A/250.
|
|
Folder 15.
Plenary meetings of the General
Assembly.
Records of proceedings and document.
|
|
64th meeting (excerpt) - Future status
of
South-West Africa: report of the Fourth
Committee: resolution.
|
|
|
[Note-See Folder 14 for:
Report of the Fourth Committee
|
A/250.]
|
|
Folder 16.
Plenary meetings of the General
Assembly.
Resolution.
|
|
Resolutions adopted on the reports of
the Fourth Committee - 65 (I). Future status of South-West Africa.
|
|
|
VI. Records of the General Assembly ,
second session
Folder 17.
Inclusion of item in the agenda.
Documents.
|
|
Agenda for the Second Session of the
General assembly.
Distribution of work among the
Committees.
|
|
|
Folder 18.
Fourth Committee.
Records of proceedings.
|
|
29th meeting.
|
|
|
30th meeting.
|
|
|
31st meeting.
|
|
|
32nd meeting.
|
|
|
33rd meeting.
|
|
|
38th meeting.
|
|
|
39th meeting.
|
|
|
40th meeting.
|
|
|
44th meeting (excerpt).
|
|
|
[p207] 45th meeting.
|
|
|
47th meeting (excerpt).
|
|
|
Folder 19.
Fourth Committee.
Documents.
|
|
Note by the Secretary-General on
communications received by the Secretary-General - Annex 3 c
|
A.C.4/94.
|
|
Communications received by the
Secretary-General: memorandum on South-West Africa by the Reverend
Michael Scott, with a preface by Freda Troupe - Annex 3 d
|
A/C.4/95.
|
|
Communications received by the
Secretary-General: letter from the Reverend Michael Scott
transmitting petitions from inhabitants of South-West Africa - Annex
3 e
|
A/C.4/96.
|
|
Communications received by the
Secretary-General: cablegram from the Reverend Michael Scott -
Annex 3 f
|
A/C.4/97 |
|
Statement by the delegation of the
Union of South Africa regarding documents A/C.4/95 and A/C.4/96 -
Annex 3 g
|
A/C.4/118.
|
|
Draft resolution submitted by the
delegation
of India - Annex 3 i
|
A/C.4/99 |
|
Poland: amendments to resolution
proposed by India (A/C.4/99)
See Folder 18, 38th meeting, p. 49.
|
A/C.4/103.
|
|
Amendments proposed by the delegation
of Cuba to the draft resolution submitted by the delegation of India
(A/C.4/99) - .Annex 3 i
|
|
|
Amendment proposed by the delegation of
Panama to the draft resolution submitted by the delegation of India
(A/C.4/99) - Annex 3j
|
A/C.4/113. |
|
Amendments proposed by the delegation
of the Philippines to the draft resolution submitted by the
delegation of India (A/C.4/99) - Annex 3 k
|
A/C.4/115/Rev.I
|
|
Revision by the delegation of India of
the resolution submitted by the delegation of India (A/C.4/99) -
Annex 3 l
|
A/C.4/99/Rev.I |
|
Poland: amendment to revised resolution
proposed by India (A/C.4/99/Rev. I)
See Folder 18, 45th meeting, p. 96.
|
A/C.4/122. |
|
[p208] Draft resolution submitted by
the delegation of Denmark - Annex 3 m
|
A/C.4/100.
|
|
Peru: amendment to resolution proposed
by Denmark (A/C.4/I00)
See Folder 18, 39th meeting, p. 56.
|
A/C.4/114.
|
|
Amendments proposed by the delegation
of Belgium to the draft resolution submitted by the delegation of
Denmark (A/C.4/100) - Annex 3 n
|
A/C.4/116.
|
|
Amendment proposed by the delegation of
Denmark to the draft resolution submitted by the delegation of
Denmark (A/C.4/100) - Annex 3 o
|
A/C.4/117.
|
|
Revision by the delegation of Denmark
of the draft resolution submitted by the delegation of Denmark
(A/C.4/100) - Annex 3 p
|
A/C.4/100/Rev. I.
|
|
Netherlands: amendment to revised
resolution
proposed by Denmark (A/C.4/100/Rev. I)
See Folder 18, 45th meeting, p. 94.
|
A/C.4/121. |
|
[Note: See Folder 21 for:
Report of the Fourth Committee (A/422)
|
A/C.4/126.]
|
|
Folder 20.
Plenary meetings of the General
Assembly.
Records of proceedings.
|
|
104th plenary meeting - Question of
South-West Africa: report of the Fourth Committee (A/422 and A/429)
(excerpt).
|
|
|
105th plenary meeting- - Continuation
of the discussion of proposed new trusteeship agreements.
|
|
|
Folder 21.
Plenary meetings of the General
Assembly.
Documents.
|
|
Consideration of proposed new
trusteeship agreements, if any: question of South-West Africa -
Report of the Fourth Committee - Annex 13
|
A/422.
|
|
Consideration of proposed new
trusteeship agreements: question of South-West Africa -
Communication from the Government of [p209] the Union of South
Africa on the future status of South-West Africa (General Assembly
Resolutions 9 (I) of 9 February, 1946, and 65 (i) of 14 December,
1946) - Note by the Secretary-General
|
A/334.
|
|
Consideration of proposed new
trusteeship agreements: question of South-\West Africa -
Communication from the Government of the Union of South Africa on
"steps taken by the Union Government to inform the population of
South-West Africa of the outcome of the discussions at the last
session of the United Nations General Assembly regarding the -future
of the Territory" (General Assembly Resolutions 9 (1) of 9
February, 1946, and 65 (I) of 14 December, 1946) - Note by the
Secretary-General
|
A/334 /Add. I.
|
|
Consideration of proposed new
trusteeship agreements, if any: question of South-West Africa- -
Denmark: amendment to the draft resolution submitted by the Fourth
Committee (A/422)
See Folder 20, 104th meeting, pp.
575-576.
|
A/429. |
|
Folder 22.
Plenary meetings of the General
Assembly.
Resolution.
|
|
Resolutions adopted on the reports of
the Fourth Committee - 141 (II). Consideration of proposed new
trusteeship agreements, if any: question of South-West Africa.
|
|
|
VII. Records of the Trusteeship
Council, Second Session
Folder 23.
Inclusion of item in the agenda.
Document.
|
|
Agenda for the second session of the
Trusteeship Council |
T/47/Rev. I.
|
|
Folder 24.
Trusteeship Council.
Records of proceedings.
|
|
6th meeting (excerpt).
|
|
|
10th meeting (excerpt).
|
|
|
[p210] 15th meeting.
|
|
|
18th meeting (excerpts).
|
|
|
Folder 25.
Trusteeship Council.
Documents. |
|
General Assembly Resolution 141 (II) of
1 November, 1947, regarding the question of South-West Africa: Note
by the Secretary-General
|
T/52.
|
|
Report by the Government of the Union
of South Africa on the administration of South-West Africa for the
year 1946.
|
|
|
Communications received by the
Secretary-General relating to South-West Africa: Note by the
Secretariat
|
T/55
|
|
Communications received by the
Secretary-General relating to South-West Africa: Note by the
Secretariat
|
T/55/Add. I.
|
|
Questions to be transmitted to the
Government of the Union of South Africa [Report of the Drafting
Committee)
See Folder 26 - Resolution 28 (II) of
the Trusteeship Council - Annex and Folder 24 - 18th meeting, pp. 30
to 32.
|
T/96.
|
|
Folder 26.
Trusteeship Council.
Resolution.
|
|
Resolutions adopted by the Trusteeship
Council during its second session - 28 (II). Report of the
Government of the Union of South Africa on the administration of
South-West Africa for the year 1946.
|
|
|
VIII. Records of the Trusteeship
Council, Third Session
Folder 27.
Inclusion of item in the agenda.
Document.
|
|
Agenda.
|
|
|
[p211] Folder 28.
Trusteeship Council.
Records of proceedings.
|
|
31st meeting (excerpt).
|
|
|
41st meeting.
|
|
|
42nd meeting (excerpt).
|
|
|
Folder 29.
Trusteeship Council.
Documents.
|
|
Reply of the Government of the Union of
South Africa to the Trusteeship Council questionnaire on the report
to the United Nations on the administration of South-West Africa for
the year 1946
|
T/175.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 1.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 2.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 3.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 4.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 5.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 6.
|
|
Communications received by the
Secretary-General under rule 24 of the rules of procedure for the
Trusteeship Council
|
T/181/Add. 7.
|
|
Report of the Drafting Committee on the
report on the administration of the Trust Territory of South-West
Africa for 1946
|
T/209.
|
|
Report of the Trusteeship Council
covering its second and third sessions - Chapter VII - South-West
Africa - Report on the administration of South-West Africa for 1946
|
A/603.
|
|
IX. Records of the General Assembly,
first part of the Third
Session
Folder 30.
Inclusion of item in the agenda.
Documents.
|
|
Agenda of the General Assembly, Third
Session.
|
|
|
Distribution of work among the
Committees.
|
|
|
Folder 31.
Fourth Committee.
Records of proceedings.
|
|
76th meeting.
|
|
|
77th meeting.
|
|
|
78th meeting.
|
|
|
79th meeting.
|
|
|
80th meeting.
|
|
|
81st meeting.
|
|
|
82nd meeting.
|
|
|
83rd meeting.
|
|
|
84th meeting.
|
|
|
85th meeting.
|
|
|
Folder 32.
Fourth Committee.
Documents.
|
|
Report of the Fourth Committee
|
A/734.
|
|
Denmark, Norway and Uruguay: draft
resolution
See A/734, pp. 405 and 406.
|
A/C.4/163/ Corr. I. |
|
Denmark, Norway and Uruguay: revised
draft
resolution
See A/734, pp. 407 and 411.
|
A/C.4/163/Rev. I.
|
|
[p213] India: draft resolution
See A/734, pp. 407 and 408.
|
A/C.4/164.
|
|
Greece: amendment to the draft
resolution of Denmark, Norway and Uruguay (A/C.4,/163)
See A/734, pp. 406 and 407.
|
A/C.4/166. |
|
Cuba: amendment to the draft resolution
submitted by Denmark, Norway and Uruguay (A/C.4/163)
Sec A/734, pp. 408 and 409.
|
A/C.4/166.
|
|
India: sub-amendment to the amendment
of Cuba (A/C.4/166) to the draft resolution of Denmark, Norway and
Uruguay (A/C.4/163/ Rev. 1)
See Folder 31, 82nd meeting, pp. 358
and 359.
|
A/C.4/167.
|
|
India: sub-amendment to the amendment
of Cuba (A/C.4/166) to the draft resolution of Denmark, Norway and
Uruguay (A/C.4/163/ Rev. 1)
See A/734. pp. 408 and 410.
|
A/C.4/167/Rev. I.
|
|
Burma and Philippines: amendment to the
revised draft resolution of Denmark, Norway and Uruguay
(A/C.4/163/Rev. 1)
See Folder 31, 83rd meeting, p. 371.
|
A/C.4/168.
|
|
Belgium: amendment to the draft
resolution of Denmark, Norway and Uruguay (A/C. 4/163/Rev. 1)
See Folder 31, 82nd meeting, p. 362.
|
A/C.4/169.
|
|
India: amendment to the revised draft
resolution of Denmark, Norway and Uruguay (A/C.4/163/Rev. 1)
See Folder 31, 84th meeting, p. 373.
|
A/C.4/170.
|
|
Report of the Government of the Union
of South Africa on the administration of South-West Africa: report
of the Trusteeship Council - Letter dated 19 November, 1948, from
the Delegation of the Union of South Africa to the Chairman of the
Fourth Committee
|
A/C.4/171.
|
|
Draft report of the Fourth Committee
Same text as A /734.
|
A/C.4/172.
|
|
[Note - See Folder 29 for:
Report of the Trusteeship Council
covering its second and third sessions - Chapter VII - South-West
Africa - Report on the administration of South-West Africa for 1946
|
A/603.]
|
|
[p214] Folder 33.
Plenary meetings of the General
Assembly.
Records of proceedings and documents.
|
|
164th plenary meeting - Report of the
Government of the Union of South Africa on the administration of
South-West Africa. Report of the Trusteeship Council: report of the
Fourth Committee.
[Note - See Folder 29 for:
Report of the Trusteeship Council
covering its second and third sessions - Chapter VII - South-West
Africa - Report on the administration of South-West Africa for 1946
|
A/603.
|
|
See Folder 32 for:
Report of the Fourth Committee
|
A/734.]
|
|
Folder 34.
Plenary meetings of the General
Assembly.
Resolution.
227 (III). Question of South-West
Africa.
X. Records of the Trusteeship Council,
Fifth Session
Folder 35.
Meetings of the Trusteeship Council.
Records of proceedings.
|
|
1st meeting.
|
|
|
25th meeting.
|
|
|
27th meeting.
|
|
|
Folder 36.
Trusteeship Council.
Documents.
|
|
Question of South-West Africa - Note by
the
Secretary-General |
T/371.
|
|
Question of South-West Africa: draft
resolution
submitted by the Philippines
|
T/383. |
|
[p215] [Note - See Folder 42 for:
Letter from Mr. J. R. Jordaan, deputy
permanent representative of the Union of South Africa to the United
Nations, addressed to the Secretary-General
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A/929.]
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Folder 37.
South-West Africa Constitution Act.
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Letter from Mr. J. R. Jordaan, deputy
permanent representative of the Union of South Africa to the United
Nations, addressed to the Secretary-General
South-West Africa Constitution Act,
1925 - The Laws of South-West Africa, 1925: Proclamations and
principal Government notices issued in South-West Africa, 1st
January to 31st December, 1925 (excerpt).
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A/929.
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Folder 38.
Trusteeship Council.
Resolution.
III (V). Question of South-West Africa.
XI. Records of the General Assembly,
Fourth Session
Folder 39.
Inclusion of item in the agenda.
Document.
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Agenda of the General Assembly - Fourth
Session
Distribution of work among the
Committees.
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A/994, A/994/Add. 1
and A/994/Add. 2. |
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Folder 40.
Fourth Committee.
Records of proceedings.
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128th meeting. |
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129th meeting. |
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130th meeting. |
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[p216] 131st meeting. |
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132nd meeting. |
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133rd meeting. |
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134th meeting. |
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135th meeting. |
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136th meeting. |
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137th meeting. |
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138th meeting. |
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139th meeting. |
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140th meeting. |
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141st meeting.
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Folder 41.
Fourth Committee.
Documents.
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India: draft resolution
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 29 (A/1180).
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A/C.4/L.53.
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Denmark, Norway, Syria and Thailand:
draft
resolution
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 34 (i) (A/1180).
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A/C.4/L.54.
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India: draft resolution
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 34 (ii) (A/1180).
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A/C.4/L.55.
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Guatemala: proposal |
A/C.4/L.56.
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Guatemala: revised proposal
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 7 (A1180).
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A/C.4/L.56/Rev. I.
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Dominican Republic: amendment to the
proposal submitted by Guatemala (A/C.4/L.56) See Folder 40, 132nd
meeting, paragraph 2.
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A/C.4/L.58. |
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Union of Soviet Socialist Republics:
amendment to the draft resolution submitted by India (A/C.4/L.53)
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council [p217] - Report of the
Fourth Committee - Paragraph 32 (A/1180).
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A/C.4/L.61.
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Guatemala: amendment to the draft
resolution
submitted by India (A/C.4/L.53)
See Folder 40, 136th meeting,
paragraphs 48 and 49.
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Denmark, India, Norway, Syria and
Thailand:
draft resolution
See Folder 40 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 35 (A/1180).
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A/C.4/L.64.
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Communications received by the
Secretary-General
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A/C.4/L.57 and A/C.4/L.57/Corr. I.
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Resolution adopted by the Fourth
Committee
at its 134th meeting, on 23 November,
1949
See Folder p - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - Paragraph 10 (A/1180).
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A/C.4/L.60.
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Report of Sub-Committee 7 to the Fourth
Committee
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A/C.4/L.62.
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Question of South-West Africa: report
of the Trusteeship Council - Draft report of the Fourth Committee
See Folder 42 - Question of South-West
Africa: report of the Trusteeship Council - Report of the Fourth
Committee - (A/1180).
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A/C.4/L.65.
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Documents submitted by the Reverend
Michael Scott |
A/C.4/L.66.
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Folder 42.
Plenary meetings of the General
Assembly.
Records of proceedings and documents.
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269th plenary meeting.
Letter from Mr. J. R. Jordaan, deputy
permanent representative of the Union of South Africa to the United
Nations, addressed to the Secretary-General
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A/929.
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Report of the Trusteeship Council
covering its fourth and fifth sessions - 3. Question of South-West
Africa
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A/933.
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Note by the Secretary-General
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A/962.
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[p218] Question of South-West Africa:
report of the Trusteeship Council - Report of the Fourth Committee
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A/1180.
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Question of South-West ,Africa- -
Argentina, Belgium, Brazil, Canada, China, Denmark, Dominican
Republic, Guatemala, Iraq, Lebanon, Mexico, Norway, Syria,
Thailand, Turkey, United States of America, Uruguay: amendment to
draft resolution II proposed by the Fourth Committee (A/1180)
See 269th plenary meeting, paragraph
53.
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A/1197.
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Folder 43.
Plenary meetings of the General
Assembly.
Resolutions.
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Resolutions adopted on the reports of
the Fourth Committee - 337 (IV). Question of South-West Africa:
reiteration of previous resolutions and submission of reports. 338
(IV). Question of South-West Africa: request for an advisory opinion
of the International Court of Justice.
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2
DOCUMENTS SUBMITTED TO THE COURT BY THE
SECRETARY-GENERAL OF THE UNITED NATIONS AT THE REQUEST OF THE COURT
XXVIII
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Non-self-governing territories
Summary of information transmitted to
the Secretary-General during 1946.
United Nations Publications, Sales No.
1947 VIB I.
Fourth Session
Special Committee on information
transmitted under Article 73(c) of the Charter.
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Non-self-governing territories.
Date of receipt of information on
territories enumerated. Item IV of the Provisional Agenda
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A/ AC.28.W.6 |
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[p219]Fourth Session
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Information from non-self-governing
territories. Summary and analysis of information transmitted under
Article 73 (e) of the Charter
Report of the Secretary-General.
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A/915
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Fourth Session
Information from non-self-governing
territories.
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Summary and analysis of information
transmitted under Article 73 (e) of the Charter
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A/915 Addendum I.
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Report of the Secretary-General.
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