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[p67]
In the matter of the Voting Procedure on Questions relating to Reports and
Petitions conceming the Temtory of South-West Africa.
The Court,
composed as above,
gives the following Advisory Opinion :
With a letter of December 2nd, 1954, filed in the Registry on December 6th,
the Secretary-General of the United Nations transmitted to the Court a
certified true copy of a Resolution 904 (IX) of the General Assembly of the
United Nations of November 23rd, 1954, which was in the following terms :
" The General Assembly,
Having accepted, by resolution 449 A (V) of 13 December, 1950, the advisory
opinion of the International Court of Justice of 11 July 1950 with respect
to South-West Africa,
Having regard, in particular, to the Court's opinion on the general
question, namely, 'that South-West Africa is a Territory under the
international Mandate assumed by the Union of South Africa on 17 December
1920', and to the Court's opinion on question (a), namely, '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',
Having expressed, in resolution 749 A (VIII) of 28 November 1953, its
opinion 'that without United Nations supervision the inhabitants of the
Territory are deprived of the international supervision envisaged by the
Covenant of the League of Nations' and its belief 'that it would not fulfil
its obligation towards the inhabitants of South-West Africa if it were not
to assume the supervisory responsibilities with regard to the Territory of
South-West Africa which were formerly exercised by the League of Nations',
Having regard to the opinion of the International Court of Justice that 'the
degree of supervision to be exercised by the General Assembly should not
.... 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' and that 'these observations are particularly
.applicable to annual reports and petitions', [p69]
Having adopted, by resolution 844 (IX) of II October 1954, a special rule F
on the voting procedure to be followed by the General Assembly in taking
decisions on questions relating to reports and petitions concerning the
Territory of South-West Africa,
Having adopted this rule in a desire 'to apply, as far as possible, and
pending the conclusion of an agreement. between the United Nations and the
Union of South Africa, the procedure followed in that respect by the Council
of the League of Nations',
Considering that some elucidation of the advisory opinion is desirable,
Requests the International Court of Justice to give an advisory opinion on
the following questions:
(a) Is the following rule on the voting procedure to be followed by the
General Assembly a correct interpretation of the advisory opinion of the
International -Court of Justice of 11 July 1950 :
'Decisions of the General Assembly on questions relating to reports and
petitions concerning the Territory of South-West Africa shall be regarded as
important questions within the meaning of Article 18, paragraph 2, of the
Charter of the United Nations' ?
(b) If this interpretation of the advisory opinion of the Court is not
correct, what voting procedure should be followed by the General Assembly in
taking decisions on questions relating to reports and petitions concerning
the Territory of South-West Africa ?"
In accordance with Article 66, paragraph 1, of the Statute, notice was given
on December 9th, 1954, to all States entitled to appear before the Court of
the letter of the Secretary-General of the United Nations and of the
Resolution annexed thereto. The Court was not sitting and the President
considered that the States Members of the United Nations were likely to be
able to furnish information on the questions referred to the Court.
Accordingly, the Registrar, in pursuance of Article 66, paragraph 2, of the
Statute, notified these States on December r6th, 1954, that the Court would
be prepared to receive written statements from them within a time-limit
fixed by an Order of the same date at March 15th, 1955.
The Governments of the United States of America, of the Republic of Poland,
and of India availed themselves of this opportunity to submit written
statements. The Governments of Israel and of the Republic of China, while
not submitting written statements, referred to the views expressed by their
representatives in the General Assembly when the question which had given
rise to the request for an Advisory Opinion was there debated. Finally, the
Government of Yugoslavia indicated that it was of the opinion that [p70]
the question had already been dealt with exhaustively by an Advisory Opinion
of the Court on the question of the Territory of South-West Africa.
In accordance with Article 65, paragraph 2, of the Statute, the
Secretary-General of the United Nations transmitted to the Court the
documents likely to throw light upon the question. He also submitted an
Introductory Note commenting on these documents.
The States Members of the United Nations were notified on March 25th, 1955,
that the oral proceedings would begin on May 10th, 1955; at the same time
they were requested to inform the Registrar, not later than April 15th,
1955, whether they intended to submit oral statements. No State having
requested to be heard, the Court did not hold a public hearing.
***
By Resolution 904 (IX) of November 23rd, 1954, the General Assembly
"Requests the International Court of Justice to give an advisory opinion on
the following questions:
(a) Is the following rule on the voting procedure to be followed by the
General Assembly a correct interpretation of the advisory opinion of the
International Court of Justice of 11 July 1950:
'Decisions of the General Assembly on questions relating to reports and
petitions concerning the Territory of South-West Africa shall be regarded as
important questions within the meaning of Article 18, paragraph 2, of the
Charter of the United Nations' ?
(b) If this interpretation of the advisory opinion of the Court is not
correct, what voting procedure should be followed by the General Assembly in
taking decisions on questions relating to reports and petitions concerning
the Territory of South-West Africa ?"
The rule quoted in this Request for an Advisory Opinion is Rule F, which is
set out in Resolution 844 (IX) adopted by the General Assembly on October
11th, 1954. This Rule prescribes a voting system to be followed by the
General Assembly.
The General Assembly asks, in the first place, whether this Rule is a
correct interpretation of the Advisory Opinion given by the Court on July
11th, 1950. This is the first question to be considered. The second question
arises only in the event that the Court expresses the opinion that Rule F is
not a correct interpretation of the Advisory Opinion of 1950.
By Resolution 449 (V) A of December 13th, 1950, the Opinion of 1950 was
adopted by the General Assembly as the basis for the supervision of the
administration of the mandated Territory of [p71] South-West Africa. There
followed prolonged and unfruitful negotiations between representatives of
the Government of the Union of South Africa and an ad hoc Committee of the
General Assembly.
At the Eighth Session, the General Assembly, by Resolution 749 (VIII) of
November z8th, 1953, established a Committee on South-West Africa. It was
requested to:
"(a) Examine, within the scope of the Questionnaire, adopted by the
Permanent Mandates Commission of the League of Nations in 1926, such
information and documentation as may be available in respect of the
Territory of South-West Africa ;
(b) examine, as far as possible, in accordance with the procedure of the
former Mandates System, reports and petitions which may be submitted to the
Committee or to the Secretary-General;
(c) transmit to the General Assembly a report concerning conditions in the
Territory taking into account, as far as possible, the scope of the reports
of the Permanent Mandates Commission of the League of Nations;
(d) prepare, for the consideration of the General Assembly, a procedure for
the examination of reports and petitions which should conform as far as
possible to the procedure followed in this respect by the Assembly, the
Council and the Permanent Mandates Commission of the League of Nations."
Acting under this authority, the Committee on South-West Africa prepared two
sets of rules. One set of rules relates to its own procedure, and to the
examination of reports, petitions and other information concerning the
Territory of South-West Africa. The procedure was designed to be analogous
to that which was followed by the Permanent Mandates Commission under the
League of Nations. Provision was made for obtaining the views of the
Mandatory Power and for the submission of reports and observations of the
Committee to the General Assembly. The other set of rules prepared by the
Committee prescribed the procedure to be followed by the General Assembly in
its consideration of the reports and observations of the Committee on
South-West Africa. The rules covered such matters as reports, petitions, and
private meetings, as well as the way in which decisions of the General
Assembly with regard to reports and petitions were to be made, the
last-mentioned matter being dealt with in Rule F.
It appears that Rule F is part of a regime established by Resolutions of the
General Assembly of November z8th, 1953, and October 11th, 1954, in which
the expressed intention of the General Assembly was to conform to the
Opinion of 1950.
The scope of Question (a) is thus limited by the wording used and by the
reference to the General Assembly's acceptance of the Opinion previously
given by the Court. It is therefore essential [p72] that the Court should
keep within the bounds of the question put to it by the General Assembly.
***
In the question submitted to the Court there is a slight difference between
the wording of the English and the French texts. The French version seems to
express more precisely the intention of the General Assembly in submitting
the matter to the Court for its Opinion. It asks whether Rule F corresponds
to a correct interpretation of the previous Opinion. It refers generally to
the previous Opinion, but the debates in the Fourth Committee and in the
General Assembly indicate that the latter was primarily concerned with the
question whether the rule as to the system of voting corresponds to a
correct interpretation of the following passage :
"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."
At this stage consideration will be given to the first part of this passage,
namely, the statement that "The degree of supervision to be exercised by the
General Assembly should not therefore exceed that which applied under the
Mandates System...." The task of the Court is to establish the true meaning
of this statement. The question is whether this statement may properly be
construed as including the system of voting to be followed by the General
Assembly.
The function of supervision exercised by the General Assembly generally
takes the form of action based on the reports and observations of the
Committee on South-West Africa; whose functions are analogous to those
exercised by the Permanent Mandates Commission. The words "the degree of
supervision" relate to the extent of the substantive supervision thus
exercised, and not to the manner in which the collective will of the General
Assembly is expressed.
Accordingly, these words, if given their ordinary and natural meaning,
should not be interpreted as relating to procedural matters. They relate to
the measure and means of supervision. They comprise the means employed by
the supervising authority in obtaining adequate information regarding the
administration of the Territory and the methods adopted for evaluating such
information, maintaining working relations with the Mandatory, and otherwise
exercising normal and customary supervisory functions. The statement that
the degree of supervision to be exercised by the General Assembly should not
exceed that which was applied under the Mandates System means that the
General Assembly should not [p73] adopt such methods of supervision or
impose such conditions on the Mandatory as are inconsistent with the terms
of the Mandate or with a proper degree of supervision measured by the
standard and the methods applied by the Council of the League of Nations.
Consequently, the action of the General Assembly in adopting Rule F, which
prescribes the two-thirds majority rule, cannot be regarded as relevant to
the "degree of supervision". It follows that this Rule cannot be considered
as instituting a greater degree of supervision than that which was envisaged
by the previous Opinion of the Court.
This interpretation of the words used is confirmed by an examination of the
circumstances which led to their use.
The Court, in the previous Opinion, was answering the question : "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)" It
was dealing with two kinds of international obligations assumed by the Union
of South Africa under the Mandate.
The first kind of obligation 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 Court found that these obligations did
not lapse on the dissolution of the League of Nations.
The second kind of obligations related to the supervision of the
administration of the mandated Territory by the League. The Court, taking
into account the Resolution of the Assembly of the League of Nations of
April 18th, 1946, and the provisions of Articles IO and 80 of the Charter,
recognized that the General Assembly was legally qualified to exercise the
supervisory functions which had previously been exercised by the Council of
the League. It was necessary for the purpose of defining the international
obligations of the Union to indicate the limits within which it was subject
to the exercise of supervision by the General Assembly.
In order to indicate those limits, it was necessary to deal with the problem
presented by methods of supervision and the scope of their application The
General Assembly was competent, under the Charter, to devise methods of
supervision and to regulate, within prescribed limitations, the scope of
their application. These were matters in which the obligations could be
subjected to precise and objective determination, and it was necessary to
indicate this in a clear unequivocal manner. This was done when it was said
in the previous Opinion that : "The degree of supervision to be exercised by
the General Assembly should not therefore exceed that which applied under
the Mandates System.[p74]
On the other hand, in marking out those limits, the Court did not need to
deal with the system of voting. In recognizing that the competence of the
General Assembly to exercise its supervisory functions was based on the
Charter, the Court also recognized implicitly that decisions relating to the
exercise of such functions must be taken in accordance with the relevant
provisions of the Charter, that is, the provisions of Article 18. If the
Court had intended that the limits to the degree of supervision should be
understood to include the maintenance of the system of voting followed by
the Council of the League of Nations, it would have been contradicting
itself and running counter to the provisions of the Charter. It follows that
the statement that "The degree of supervision to be exercised by the General
Assembly should not therefore exceed that which applied under the Mandates
System" cannot be interpreted as extending to the voting system of the
General Assembly.
Accordingly, the Court finds that the statement in the Opinion of July 11th,
1950, that "The degree of supervision to be exercised by the General
Assembly should not therefore exceed that which applied under the Mandates
System", must be interpreted as relating to substantive matters, and as not
including or relating to the system of voting followed by the Council of the
League of Nations.
***
In the course of the proceedings in the General Assembly and Committees of
the United Nations, it was contended by representatives of the Union of
South Africa that Rule F would not correspond to a correct interpretation of
the previous Opinion. It was argued that the rule of unanimity governed the
proceedings in the Council of the League of Nations, in which the mandatory
Power was entitled to participate and vote ; and that Rule F, by
substituting a two-thirds majority rule, would lead to a degree of
supervision exceeding that which applied under the Mandates System.
These contentions were questioned by representatives of other Governments
and also in the written statements submitted to the Court in the present
proceedings.
In view of the finding of the Court that the statement in the Opinion of
1950 that "The degree of supervision to be exercised by the General Assembly
should not therefore exceed that which applied under the Mandates System"
does not include or relate to the system of voting, it is unnecessary to
deal with issues issues raised by these contentions or to examine the extent
and scope of the operation of the rule of unanimity under the Covenant of
the League of Nations. [p75]
The Court will now consider whether Rule F is in accord with the statement
in the Opinion of 1950, that the supervision to be exercised by the General
Assembly "should conform as far as possible to the procedure followed in
this respect by the Council of the League of Nations".
While, as indicated above, the statement regarding the degree of supervision
to be exercised by the General Assembly over the Mandate of South-West
Africa, relates to substantive matters, the statement requiring conformity
"as far as possible" with the procedure followed in the matter of
supervision by the Council of the League of Nations, relates to the way in
which supervision is to be exercised, a matter which is procedural in
character. Thus, both substance and procedure are dealt with in the passage
in question and both relate to the exercise of supervision. The word
"procedure" there used must be understood as referring to those procedural
steps whereby supervision is to be effected.
The voting system of the General Assembly was not in contemplation when the
Court, in its Opinion of 1950, stated that "supervision should conform as
far as possible to the procedure followed in this respect by the Council of
the League of Nations". The constitution of an organ usually prescribes the
method of voting by which the organ arrives at its decisions. The voting
system is related to the composition and functions of the organ. It forms
one of the characteristics of the constitution of the organ. Taking
decisions by a two-thirds majority vote or by a simple majority vote is one
of the distinguishing features of the General Assembly, while the unanimity
rule was one of the distinguishing features of the Council of the League of
Nations. These two systems are characteristic of different organs, and one
system cannot be substituted for the other without constitutional amendment.
To transplant upon the General Assembly the unanimity rule of the Council of
the League would not be simply the introduction of a procedure, but would
amount to a disregard of one of the characteristics of the General Assembly.
Consequently the question of conformity of the voting system of the General
Assembly with that of the Council of the League of Nations presents
insurmountable difficulties of a juridical nature. For these reasons, the
voting system of the General Assembly must be considered as not being
included in the procedure which, according to the previous Opinion of the
Court, the General Assembly should follow in exercising its supervisory
functions.
***
There is, however, another aspect of this question. Rule F is contained in a
group of six special rules, which were adopted by [p76] the General
Assembly in Resolution 844 (IX) of October 11th, 1954. They were designed to
apply "as far as possible, and pending the conclusion of an agreement
between the United Nations and the Union of South Africa, the procedure
followed in that respect by the Council of the League of Nations". It seems
to be clear that, both in adopting Rule F and in referring Question (a) to
the Court, the General Assembly was proceeding upon the assumption that the
word "procedure", as used in the second part of the passage in question,
includes the voting system. It is also necessary to examine the question on
the basis of that assumption. Looking at the matter from that point of view,
there is equally no incompatibility between Rule F and the previous Opinion.
It is to be recalled that the Court, in its previous Opinion, stated that
"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 IO 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". Thus, the authority of the General Assembly
to exercise supervision over the administration of South-West Africa as a
mandated Territory is based on the provisions of the Charter. While, in
exercising that supervision, the General Assembly should not deviate from
the Mandate, its authority to take decisions in order to effect such
supervision is derived from its own constitution.
Such being the case, it follows that the General Assembly, in adopting a
method of reaching decisions in respect of the annual reports and petitions
concerning South-West Africa should base itself exclusively on the Charter.
Article 18 of the Charter authorizes the General Assembly to decide whether
decisions of this nature involve "important questions" or "other questions".
The General Assembly has concluded that decisions by it on questions
relating to reports and petitions concerning the Territory of South-West
Africa shall be regarded as decisions on important questions to which the
two-thirds majority rule should apply. It is from the Charter that the
General Assembly derives its competence to exercise its supervisory
functions ; and it is within the framework of the Charter that the General
Assembly must find the rules governing the making of its decisions in
connection with those functions. It would be legally impossible for the
General Assembly, on the one hand, to rely on the Charter in receiving and
examining reports and petitions concerning South-West Africa, and, on the
other hand, to reach decisions relating to these reports and petitions in
accordance with a voting system entirely alien to that prescribed by the
Charter.
When the Court stated in its previous Opinion that in exercising its
supervisory functions the General Assembly should conform [p77]"as far as
possible to the procedure followed in this respect by the Council of the
League of Nations", it was indicating that in the nature of things the
General Assembly, operating under an instrument different from that which
governed the Council of the League of Nations, would not be able to follow
precisely the same procedures as were followed by the Council. Consequently,
the expression "as far as possible" was designed to allow for adjustments
and modifications necessitated by legal or practical considerations.
In the matter of determining how to take decisions relating to reports and
petitions concerning the Territory of South-West Africa, there was but one
course open to the General Assembly. It had before it a text, Article 18 of
the Charter, which prescribes the methods for taking decisions. The Opinion
of 1950 left the General Assembly with Article 18 of the Charter as the sole
legal basis for the voting system applicable to decisions in connection with
its supervisory functions. It was on that basis that Rule F was adopted. In
adopting that. Rule, the General Assembly acted within the bounds of legal
possibility.
There is thus no incompatibility between Rule F and the Opinion of 1950 in
which the Court stated that the supervision to be exercised by the General
Assembly should conform as far as possible to the procedure followed in this
respect by the Council of the League of Nations.
***
The Court therefore considers that Rule F, recited in Question (a) of
Resolution go4 (IX) of the General Assembly of November 23rd, 1954, is in
accord with the passage contained in the Court's previous Opinion, namely,
that "The degree of supervision to be exercised by the General Assembly
should not .... 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". Accordingly, the Court concludes
that Rule F corresponds to a correct interpretation of its Advisory Opinion
of 1950.
Question (a) having been answered in the affirmative, it is not necessary to
consider Question (b). [p78]
For these reasons,
The Court is unanimously of opinion
with regard to Question (a) :
"Is the following rule on the voting procedure to be followed by the General
Assembly a correct interpretation of the advisory opinion of the
International Court of Justice of 11 July 1950 :
'Decisions of the General Assembly on questions relating to reports and
petitions concerning the Territory of South-West Africa shall be regarded as
important questions within the meaning of Article 18, paragraph 2, of the
Charter of the United Nations' ?"
that the said rule is a correct interpretation of the Advisory Opinion of
July 11th, 1950.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this seventh day of June, one thousand nine hundred
and fifty-five, 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 Nations.
(Signed) Green H. Hack worth,
President.
(Signed) J. Lopez Olivan,
Registrar.
Judge Kojevnikov declares that he subscribes to the Opinion which the Court
has given on Question (a) asked by the General Assembly of the United
Nations on November 23rd, 1954. He would, however, like to indicate that the
fact that he has voted in favour of the final part of the Advisory Opinion
does not mean that he agrees with all that has been said, or with the
reasoning advanced in all respects, nor that he acknowledges the correctness
of the whole of the Advisory Opinion of July 11th, 1950.
He does not share the view, expressed in the Court's Advisory Opinion of
1950, that the provisions of Chapter XII of the Charter do not impose a
legal obligation on the Union of South Africa to [p79] place the Territory
under the Trusteeship System. On the contrary, he considers that the Charter
of the United Nations imposes on the Union of South Africa the obligation tc. place the Territory of South-West Africa under the Trusteeship System.
Judges Basdevant, Klaestad and Lauterpacht, availing themselves of the
riight conferred on them by Articles 57 and 68 of the Statute, append to the
Opinion of the Court statements of their separate opinions.
(Initialled) G. H. H.
(Initialled) J. L. O.
[p80]SEPARATE OPINION OF JUDGE BASDEVANT
[Translation]
While fully accepting the operative clause of the Opinion, I have, to my
regret, reached the same view by a different path from that followed by the
Court. I in no way intend any criticism of the latter which, I consider,
would be out of place in a separate opinion written by a Judge, but I
believe that I should indicate briefly the means by which I am enabled to
subscribe to the Opinion given by the Court.
In order to give a reply to the question put to the Court, I feel that it is
necessary to consider, in the first place, the operative clause of the
Opinion given in 1950. I there find an assertion of the competence of the
United Nations in respect of supervision, but no indication of the competent
organ or of the way in which its decisions are to be reached. This seems to
me to involve reference on these points to the provisions of the Charter,
and particularly to Articles 10 and 18, and consequently to involve the
conclusion that Rule F, which has been submitted for the Court's
consideration, accords with a correct interpretation of the Opinion of 1950.
From this point I pass to a consideration of the reasons on which the
Opinion of 1950 was based. Among these I find an assertion of the competence
of the General Assembly based on Article 10 of the Charter. Since what is
involved is a competence conferred by the Charter, it is quite natural that
the Assembly should exercise it in accordance with the provisions of the
Charter, in this case, of Article 18. This is what is prescribed by Rule F.
The tentative conclusion previously anticipated is thus confirmed.
Is there to be found, in the grounds on which the Opinion was based, any
indication of sufficient strength to upset this conclusion ? It is at this
point, and at this point only, that it becomes necessary to consider the
sentence, quoted by the Assembly's Resolution, from the reasons given in
support of the Opinion of 1950, a sentence which has doubtless given rise to
the hesitation displayed by the General Assembly, but which, in order to
arrive at a correct interpretation of the Opinion of 1950, must be
considered with due regard to the place which it occupies in that Opinion.
In this sentence there are two propositions.
The first is, as is clear from its terms, concerned with the determination
of the framework within which supervision is to be exercised, with the
fixing of limits beyond which supervision should not extend. This is
confirmed by the place in the Opinion in which this proposition is to be
found; it appears after a reference to annual reports and petitions. With
this purpose in mind, it defines the substance of the obligation to submit
to the exercise of super-[p81]vision, which is in consonance with the
request for an Opinion addressed to the Court, whereas the Court was not, in
1950, questioned as to the way in which decisions of the General Assembly
were to be made. Rule F, which is now submitted for the Court's
consideration, makes reference to reports and petitions : it is in this
respect within the limits stated by the Opinion. The marking out of those
limits is one thing, the fixing of a rule for the making of decisions with
regard to reports and petitions is another. The first proposition now being
considered is in no way inconsistent with the conclusion as to the
compatibility of the Rule so far contemplated.
The second proposition prescribes or recommends that the degree of
supervision to be exercised by the General Assembly should conform as far as
possible to the procedure followed in this respect by the Council of the
League of Nations. This doubtless includes the provision to be made for an
organ corresponding .to the Permanent Mandates Commission, its method of
operation and its relationship with the General Assembly. But does it apply
to the way in which the General Assembly is to make its decisions—a
qualified majority instead of the unanimity prescribed by the Covenant for
decisions of the Council of the League of Nations ?
Resolution 904 (IX) of the General Assembly would tend to suggest that it
does, since it speaks of voting procedure in connection with Rule F which,
by reference to Article 18 of the Charter, adopts the two-thirds majority
rule for the making of a decision. But this Resolution cannot furnish any
assistance in the interpretation of a sentence in the Opinion of 1950, with
regard to the interpretation of which this very Resolution seeks elucidation
by the Court.
The word "procedure" is often used to include not only the way in which
votes are cast, but also the determination of their weight in the making of
a decision. The word "procedure" is then used in a general and a vague
sense. Was it such a sense that the Court intended to be given to this word
when it referred; in connection with the supervision to be exercised by the
General Assembly, to the procedure followed by the Council of the League of
Nations ?
If the Court had so intended, it would have constituted disregard by it of
the more precise terminology adopted by the Charter in connection with the
General Assembly and repeated in connection with the Security Council, the
Economic and Social Council and the Trusteeship Council. The rules governing
the way in which the General Assembly is to make its decisions (Article 18)
are set out under the heading "Voting", and not under the heading
"Procedure" ; under the latter heading, Articles 20 to 22 contain provisions
of lesser importance. The limited scope of the word "procedure" is again
demonstrated by the fact that, under Article 27 of the Charter, a majority
constituted by seven members is sufficient to make decisions on procedural
matters, whereas the requirement is greater for the making of decisions on
all other matters. It is [p82] difficult to suppose that the Opinion was
disregarding this terminology and using the word "procedure" in its general
and vague sense.
It is the more difficult in that the classification thus made by the Charter
corresponds to a profound reality. The majority rule laid down by Article 18
of the Charter and the unanimity rule prescribed by the Covenant of the
League of Nations are something other than rules of procedure ; they
determine an essential characteristic of the organs in question and of their
parent international institutions. The character of these rules appears to
me to be beyond question and, in my view, it provides a decisive element in
reaching the answer to be given to the question which has been put.
Furthermore, when the Opinion, in setting forth the grounds on which it was
based, stated the proposition now under consideration, it did so in
connection with the obligation binding upon the Union of South Africa to
submit to supervision exercised by the General Assembly. The Union of South
Africa, it was intended to Say, is only bound to submit to this supervision
in so far as such supervision is effected in accordance with a procedure
which conforms as far as possible to that followed in this respect by the
Council of the League of Nations. But when, at the close of the discussions
in the Assembly, that body proceeds to vote, the Union of South Africa does
not take part in the voting in its capacity as a mandatory Power, in
pursuance of its obligation to submit to supervision by the General
Assembly; it does so as a Member of the United Nations, and consequently has
the rights and duties flowing from the Charter and not those flowing from
the Mandate. The Opinion of 1950 was concerned with the obligations of the
Union of South Africa by virtue of the Mandate; it was not necessary in that
Opinion to deal with the Union's participation in the decisions of the
General Assembly, and the Opinion cannot be interpreted on the basis that
that was done.
It may be added that when the Opinion of 1950 stated that, in exercising its
supervision, the General Assembly should conform as far as possible to the
procedure followed by the Council of the League of Nations, it intended to
indicate that the Assembly would, in this connection, have a certain
discretion in determining to what extent it was possible for it so to
conform. This can be easily understood in respect of decisions as to the
organ it would call upon for assistance and as to the form such assistance
should take : such matters must be left to the discretion of the General
Assembly. The position is entirely different with regard to the way in which
the Assembly must make its decisions ; this is not a matter in which it has
any discretion. It cannot be open to the General Assembly, depending upon
its assessment of what it regards as possible in this connection, to alter
what is laid down by Article 18 of the Charter in order to adapt that
Article more or less to the methods employed in the League of Nations for
the making of decisions of the Council. It cannot have been supposed, and
therefore cannot [p83] have been accepted in the Opinion of 1950, that the
General Assembly was invested with any such power in the case now under
consideration.
These considerations lead me to think that the Opinion of 1950 intended no
derogation, in respect of decisions to be made by the General Assembly with
regard to reports and petitions concerning the Territory of South-West
Africa, from the application of Article 18 of the Charter. The rule
submitted by the General Assembly for consideration by the Court refers to
this Article ; it therefore appears to me to correspond to a correct
interpretation of the Opinion of 1950.
In setting forth the above considerations, I lay no claim to have presented
a complete argument. To do so, I should be prepared to adopt parts of the
reasoning set out in the Opinion. I have sought only to indicate the general
outline of my argument.
(Signed) Basdevant.
[p84]
SEPARATE OPINION OF JUDGE KLAESTAD
I have arrived at the same final conclusion as the Court; but as my approach
to the matter is entirely different, I consider it my duty to state as
briefly as possible the reasons upon which I base my opinion.
1. In the Resolution by which the present Request for an Advisory Opinion
was adopted, the General Assembly of the United Nations referred to a
statement made by the Court in giving the reasons on which its Advisory
Opinion of July 11th, 1950, was based—a statement which, for the purpose of
answering the Question now put to the Court, calls for a brief comment.
After having expressed the view that South-West Africa was still to be
considered as a territory under the Mandate of December 17th, 1920, and that
the Union of South Africa was under an obligation to submit to the
supervision and control of the General Assembly, the Court stated :
"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."
This statement was made by the Court in connection with its consideration of
the international obligations which the Union of South Africa had assumed
under the Mandate and which the Union, in the opinion of the Court,
continued to have. The General Assembly had, in its Request for an Opinion,
asked :
"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 above-mentioned statement is to be found in the part of the Opinion in
which the Court examined this Question relating to the obligations under the
Mandate, and when the Court said that the "degree of supervision to be
exercised by the General Assembly" should not exceed that which applied
under the Mandates System, it was dealing with and referring to the
international obligations which the Union of South Africa continued to have,
including the obligation to submit to international supervision. As appears
from the context, the Court was thereby giving expression to the view that
the Union of South Africa should not, as a consequence of a supervision
exercised by the General Assembly, be subjected to other or more onerous
legal obligations than the Union had under the supervision previously
exercised by the League of Nations. [p85]
Having due regard to the discussions in the United Nations which preceded
the present Request for an Advisory Opinion, including the view expressed by
the Union of South Africa, I consider that the task of the Court now is to
determine whether decisions of the General Assembly on questions relating to
reports and petitions concerning the Territory of South-West Africa would,
by the operation of the voting procedure indicated in the Request, subject
the Union of South Africa to other or more onerous legal obligations than
the Union had previously under the supervision of the League of Nations. On
the solution of this question depends, in my opinion, the answer to be given
to the present Request.
The determination of this general question necessitates a previous
examination of two particular questions relating to
(a) the voting procedure in the competent organ of the League of Nations and
in the General Assembly of the United Nations ;
(b) the legal effect of decisions taken by the competent organ of the League
and by the General Assembly, when applying their respective voting
procedures.
II. In accordance with Article 22 of the Covenant of the League of Nations,
the supervision of mandated territories was to be exercised by the Council.
The Permanent Mandates Commission was to advise the Council on all matters
relating to the observance of the mandates. The Assembly had, under Article
3, a general competence to deal with any matter within the sphere of action
of the League.
The competence to take decisions with regard to reports and petitions
relating to mandated territories was conferred upon the Council. In
accordance with Article 5 of the Covenant, these decisions required the
agreement of all the Members of the Council represented at the meeting,
except in matters of procedure which were decided by a majority. Article 4
prescribed that a Member of the League, not represented in the Council,
should be invited to send a representative to sit as a member at any meeting
of the Council during the consideration of matters specially affecting the
interests of that Member. Each Member had one vote, including the Member
invited to send a representative. By virtue of these des, the Union of South
Africa was entitled to be represented with voting power, when the Council
considered matters relating to the Mandated Territory of South-West Africa,
and it could, in its capacity as a Member of the League, prevent the
adoption of a decision by voting against it.
It has been argued that the rule requiring the agreement of all Members
represented at the meeting was subject to an important exception as a
consequence of the view expressed by the Permanent Court of International
Justice in its Advisory Opinion of November 12th, 1925, concerning the
frontier between Iraq and Turkey. It is said that, as a consequence of that
Opinion, the vote of a Man-[p86]datory Power should not be taken into
account in ascertaining whether there was unanimity, when a question
relating to the Mandate of that Power was considered.
The principle enunciated in that Advisory Opinion, namely, that "no one can
be judge in his own suit", was found to be applicable in view of the special
competence which was conferred upon the Council of the League by the Treaty
of Lausanne of 1923— a competence of a judicial character to give a
definitive and binding decision in a particular dispute between two States
with regard to the final determination of a frontier. As far as I have been
able to ascertain, this principle was never extended by the Council to
comprise decisions taken by the Council in the course of its supervision of
.the administration of mandated territories. I am not aware of a single
instance in which a resolution concerning reports or petitions was adopted
by the Council against the vote of the Mandatory Power.
Article 5 of the Covenant, which lays down the rule of unanimity,
makes—apart from matters of procedure—no other exceptions than those
"expressly provided in this Covenant or by the terms of the present Treaty".
As no such exception was expressly made for matters concerning Mandates, and
as the practice of the Council does not disclose any such exception showing
that a decision on reports or petitions was ever taken against the negative
vote of a Mandatory Power, it is difficult not to conclude that decisions
relating to reports and petitions were governed by the general rule of
Article 5. It is not for the Court to consider whether the Council would
have been justified in modifying the rule of absolute unanimity in matters
of Mandates in view of the Advisory Opinion of 1925 or of considerations of
reasonableness or general principles of law.
When the Court delivered its Advisory Opinion of 1950, it was not unaware of
the fact that the Charter of the United Nations had rejected the principle
of unanimity, and when the Court expressed the view that the supervisory
functions with regard to the Territory of South-West Africa, previously
exercised by the Council of the League, were henceforth to be exercised by
the General Assembly of the United Nations by virtue of Article 10 of the
Charter, it was implicitly referring to that body with the organization and
functions conferred upon it by the provisions of the Charter, including the
provisions of Article 18.
In accordance with Article 18, decisions of the General Assembly on
"important questions" shall be made by a two-thirds majority of the members
present and voting. Decisions on other questions shall be made by a simple
majority of the members present and voting. In virtue of the competence
conferred upon it by Article 18, § 3, the General Assembly, by Resolution
844 (IX) of October 11th, 1954, adopted a special rule on voting procedure,
to the effect [p87] that decisions of the General Assembly on questions
relating to reports and petitions concerning the Territory of South-West
Africa should be regarded as important questions within the meaning of
Article 18, § 2, of the Charter.
It is this difference between the voting procedure in the Council of the
League of Nations and in the General Assembly of the United Nations which
has given rise to the question now before the Court, namely, whether the
Union of South Africa, by the operation of this rule as to a two-thirds
majority of the General Assembly, would be subjected to other or more
onerous legal obligations than it had previously under the rule of unanimity
of the Council of the League. In order to answer this question it becomes
necessary to consider .the legal effect of decisions taken by the Council of
the League and by the General Assembly with regard to reports and petitions
concerning the Territory of South-West Africa.
III. As mentioned above, the Council of the League of Nations was governed.
by the rule of unanimity when voting on matters relating to Mandates. When
the Union of South Africa, by a concurrent vote in the Council, gave an
expression of its acceptance of a Resolution concerning reports or petitions
relating to the Territory of South-West Africa, the Union Government became,
by reason of that acceptance, legally bound to comply with the Resolution.
This view finds support in the Advisory Opinion of the Permanent Court of
International Justice of October 15th, 1931, concerning railway traffic
between Lithuania and Poland: The Court expressed the view that the
Governments of Lithuania and Poland, by participating in the adoption of a
Resolution of the Council of the League, became bound by their acceptance of
the Resolution.
As to the legal significance of decisions taken by the General Assembly of
the United Nations on questions of reports and petitions, the following
considerations appear to be relevant:
In its Advisory Opinion of 1950 the Court stated that the competence of the
General Assembly to exercise supervisory functions with regard to a mandated
territory and to receive and examine reports is derived from the provisions
of Article IO of the Charter, which authorizes the General Assembly to
discuss any questions within the scope of the Charter and to make
recommendations on these questions to the Members of the United Nations.
Such recommendations relating to reports and petitions concerning the
Territory of South-West Africa shall, as already mentioned, in accordance
with the General Assembly's Resolution 844 (IX) of October 11th, 1954, be
regarded as important questions within the meaning of Article 18, § 2, of
the Charter and therefore be made by a two-thirds majority of the Members
present and voting.
Article 18 does not make any distinction between "decisions" and
"recommendations". It refers to "decisions" as including "recommendations".
These decisions of the General Assembly on [p88] "important questions" are
of different categories. Some are decisions with a final and binding effect,
such as, for instance, the election of members of the various organs of the
United Nations or decisions approving the budget of the Organization by
virtue of Article 17. Some other decisions are recommendations in the
ordinary sense of that term, having no binding force. Recommendations
adopted by virtue of Article 10 concerning reports and petitions relating to
the Territory of South-West Africa belong in my opinion to the
last-mentioned category. They are not legally binding on the Union of South
Africa in its capacity as Mandatory Power. Only if the Union Government by a
concurrent vote has given its consent to the recommendation can that
Government become legally bound to comply with it. In that respect the legal
situation is the same as it was under the supervision of the League. Only a
concurrent vote can create a binding legal obligation for the Union of South
Africa.
It is true that against a negative vote of the Union Government no decision
could be reached in the League, while a decision in the United Nations can
be made by a two-thirds majority of the General Assembly without the
concurrent vote of that Government. But such a decision (recommendation)
adopted by the General Assembly without the concurrent vote of the Union
Government does not create a binding legal obligation for that Government.
Its effects are, in my view, net of a legal nature in the usual sense, but
rather of a moral or political character. This does not, however, mean that
such a recommendation is without real significance and importance, and that
the Union Government can simply disregard it. As a Member of the United
Nations, the Union of South Africa is in duty bound to consider in good
faith a recommendation adopted by the General Assembly under Article 10 of
the Charter and to inform the General Assembly with regard to the attitude
which it has decided to take in respect of the matter referred to in the
recommendation. But a duty of such a nature, however real and serious it may
be, can hardly be considered as involving a true legal obligation, and it
does not in any case involve a binding legal obligation to comply with the
recommendation.
IV. As far as the binding force of a decision is concerned, there is thus no
difference between the rules on voting procedure in the Council of the
League and in the General Assembly of the United Nations. In order to become
legally bound to comply with a decision, the Union Government must, in the
League as well as in the United Nations, have consented to the decision by a
concurrent vote. By the operation of the rules on voting procedure in the
General Assembly, the Union Government cannot therefore become subjected,
against its will, to other or more onerous legal obligations than it had
under the supervision of the League. [p89]
This view—that a concurrent vote of the Union is necessary for the extension
of its obligations under the Mandate—is confirmed by a consideration of
another nature, deduced from the Advisory Opinion of 1950. In reply to the
last Question put to it in the Request for that Opinion, the Court expressed
the view :
"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".
In the reasons given in support of this answer, the Court stated :
"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."
The international status of the Territory is thus determined, inter alia, by
the provisions of the Mandate which lay down, in Articles 3-6, the
particular obligations of the Union of South Africa as the Mandatory Power,
such as obligations with regard 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, and the obligation to make an annual report containing full
information with regard to the Territory.
An extension of any of these obligations relating to the administration of
the Territory and the supervision of that administration would affect the
international status of the Territory and would consequently, in accordance
with the previous Advisory Opinion, necessitate an agreement between the
Union of South Africa and the General Assembly. Such an extension would not
be legally binding upon the Union unless its consent has been given.
For these reasons I am of opinion that an application of the de on the
voting procedure indicated in the Request does not conflict with the
previous Advisory Opinion and may be considered as corresponding to a
correct interpretation of that Opinion.
(Signed) Helge Klaestad.
[p90]
SEPARATE OPINION OF JUDGE LAUTERPACHT
In the present case the General Assembly has asked the Court for an Advisory
Opinion on the question whether the special Rule F, which, on n October,
1954, the Assembly adopted with regard to the voting procedure to be
followed by it in taking decisions on questions relating to reports and
petitions concerning the Territory of South-West Africa is a correct
interpretation of the Opinion of the Court given in 1950 on the
International Status of South-West Africa. Rule F laid down that such
decisions shall be regarded as important questions within the meaning of
Article 18 (2) of the Charter, that is to Say, that a majority of two-thirds
shall be required for their adoption. In the Preamble to its request the
General Assembly drew special attention to certain passages of the Opinion
of 1950. These passages are referred to below.
I have considered it incumbent upon me to append the present Separate
Opinion. for, while I concur in the unanimous Opinion of the Court inasmuch
as it gives an affirmative answer to the question put to it, I do so on
grounds and by a method substantially different —and differing—from those on
which that Opinion is based. On the subject of method I find it necessary to
devote some preliminary observations to the question as to the legal issues
which ought to find an answer in the Opinion of the Court. This matter
raises the more general question of the character of the function of the
Court and the nature of its judicial pronouncements.
The present Opinion can be decided, in addition to what may be described as
the method of pure construction, by exclusive reference to any of the
following three legal questions :
(1) Inasmuch as the main issue arises from the contention of South Africa
that absolute unanimity was required for the decisions of the Council of the
League of Nations acting as a supervisory organ of the Mandates System, the
Opinion could be based on the rejection of that contention as being
unfounded in law. In that case it might be said—though, as will be seen, not
quite accurately— that Questions (2) and (3) do not arise.
(2) It is possible to base the Opinion of the Court on the view adopted by
the Court that whatever may be the answer to the other two questions the
General Assembly is absolutely prevented from acting by a method of voting
other than that laid down in Article 18 of the Charter, and that for that
reason it must be held, in adopting Rule F, to have complied "as far as
possible" with the Opinion of the Court given in 1950. If that view is
adopted, it might be said that Questions (1) and (3) need not be answered.[p91]
(3) It is possible to base the Opinion of the Court on the view that as,
unlike the decisions of the Council of the League, the decisions of the
General Assembly are not legally binding, Rule F clearly does not imply any
excess of supervision as compared with that of the Council of the League and
that therefore neither Question (1) nor Question (2) need be answered.
Finally, and this is substantially the method followed by the Court, it is
possible to answer the question put to the Court without primary reference
to any of these questions but merely on the basis of a construction of the
relevant passages of the Opinion of the Court of 1950.
In my view it is essential, having regard both to the circumstances of the
case and to the objects of the judicial function of the Court in general,
that its Opinion should contain an answer to the legal issues relevant to
the case, especially when relied upon by the Members of the General
Assembly, including South Africa.
Thus with regard to Question (1)—namely, that arising out of the contention
of South Africa that the absolute unanimity of the Members of the Council of
the League was required for its Resolutions relating to mandates—although
the Court has come to the conclusion that the relevant passage of its
Opinion of 1950 does not apply to the voting procedure, I consider that that
argument of South Africa ought to be answered in all requisite detail. It
ought not to be disregarded on the ground that it is irrelevant for the
reason that it is ruled out by what is described as the ordinary and natural
meaning of the words of the Opinion of 1950. For this was the main argument
put forward by South Africa in the course of the discussions before the
General Assembly and its Committees. It was the question of the
justification of that contention which exercised Members of the General
Assembly, which troubled their consciences, and which was largely
responsible for the request for the present Opinion. The circumstances of
the case are such that full consideration ought to be given to the principal
legal argument of the State which, as a mandatory, has put itself in
opposition to the repeatedly expressed judgment of the United Nations and
whose conduct has been the object of wide disapproval. For this reason,
although I do not accept this particular contention of the Government of
South Africa, I must consider it in detail.
The same considerations apply to what may be called the constitutional issue
as expressed in Question (2). The Opinion of the Court is based on the view
that the General Assembly is absolutely precluded from acting by a voting
procedure other than that laid down in the Charter and that for that reason
Rule F complies with the Opinion of the Court, given in 1950, which laid
down that the procedure of the General Assembly must approximate to that of
the Council of the League "as far as possible". It is possible to
[p92]
dispose of the entire issue by reference to the simple proposition that the
provisions of the Charter in the matter of voting are mandatory and
peremptory and that any modification of the voting procedure of the General
Assembly, designed to meet the circumstances of the case, would constitute a
violation of the Charter or, more emphatically, that it would constitute a
juridical impossibility. But that proposition is controversial. Some
previous practice, to which reference will be made later, suggests the
permissibility of a different voting procedure if an extraneous instrument
so provides—although the Court seems to have accepted the view that there is
no such instrument in the present case seeing that the powers of the General
Assembly are, it is said, derived from the Charter and not from an
extraneous instrument. That, too, is controversial. Above all, it appears
that the constitutional problem as stated underlay a great deal of the
debate before the General Assembly and that most of its Members—as indeed
does the Opinion of the Court—were prepared to regard the constitutional
objection as decisive and sufficient. This being so, it seems to me
desirable that the solution of that aspect of the matter should not be taken
for granted or as being self-evident. For this reason, having regard to
conflicting considerations of principle and to divergence of practice, I
believe it to be my duty to examine fully that aspect of the matter.
The same considerations apply, once more, to Question (3)—-a question by
reference to which it may be possible to dispose of the issue before the
Court on the ground that the decisions of the General Assembly are of no
legal effect or of more limited effect than those of the Council of the
League. It is a ground by reference to which—and mainly to which—it may be
thought, as I do in the present Opinion, that an affirmative answer can be
given to the question put by the General Assembly. For this reason I am not
at liberty to disregard that issue on account of any difficulties or
complications inherent in it. The absence, in general, of full legal binding
force in the Resolutions of the General Assembly is a proposition so
fundamental and so rudimentary that an attempt to apply and to circumscribe
it need not be regarded as dangerous or unhelpful. I cannot disregard that
aspect of the matter on the alleged ground that the Court cannot answer
this—or any other legal question—incidental to the Opinion, seeing that the
General Assembly has not specifically asked for an answer to these
questions. The General Assembly has asked only one substantive question ;
that issue, and that issue only, is answered in the operative part of the
unanimous Opinion of the Court. Clearly, in order to reply to that question,
the Court is bound in the course of its reasoning to consider and to answer
a variety of legal questions. This is of the very essence of its judicial
function which makes it possible for it to render Judgments and Opinions
which carry [p93]
For these reasons I cannot attach prominent—and certainly not
exclusive—importance to what may be described as the "mere construction"
point of view, such as that implied in the argument that the question of
voting is not at all germane to either of the two crucial passages of the
Opinion of the Court of 1950, namely, those relating to "degree of
supervision" and "procedure" of the Council of the League. It is possible to
hold the view that there is an implied reference, to voting procedure in
both these expressions ; it may be held that such reference is implicit only
in one or only in the other of these expressions ; and there is room for the
view, which finds some support in the Opinion of the Court, that neither of
these expressions contains any reference to voting. This diversity of
construction provides some illustration of the unreliability of reliance on
the supposed ordinary and natural meaning of words.
Neither, having regard to the integrity of the function of interpretation,
is it desirable that countenance be given to a method which by way of
construction may result in a summary treatment or disregard of the principal
issue before the Court. Thus it may be said that, as according to the
Opinion of the Court given in 1950, the General Assembly, acting under
Article IO of its Charter, is to be responsible for the task of supervision,
it cannot fulfil that function otherwise than in accordance with its own
procedure and that by applying its voting procedure, deemed unalterable, it
approximates "as far as possible" to the procedure of the Council of the
League. However, this—the "constitutional" issue—is one of the principal
questions before the Court. I would not feel justified in answering
it—without adequate examination of available pratice—by reference to assumed
logical impossibility.
These considerations I believe to be in the highest interest of the
authority of international justice. They do not exclude the necessity of
basing the Opinion of the Court on, inter alia, a construction of the texts
before it.
***
Do the expressions "degree of supervision" and "procedure of the Council of
the League" refer to voting procedure ?
One of the main passages of the Opinion of 1950 which the Court is now
requested to interpret lays down two directives: (i) that the degree of
supervision to be exercised by the General Assembly should not exceed that
which applied under the Mandates System, [p94]and (ii) that it should
conform as far as possible to the procedure followed in this respect by the
Council of the League of Nations. The expression "degree of supervision" has
two meanings : it signifies primarily the means of supervision. Thus it is
clear that the place assigned to periodic missions or to petitions in the
System of Trusteeship exceeds the degree of supervision adopted in the
Mandates System and that that means of supervision by the United Nations
cannot, without the consent of the Government of the Union of South-West
Africa, be applied to the Mandated Territory of South-West Africa. This is a
question of means of supervision in their, wider sense. The Court, whose
Opinion is requested on the question of voting, is not concerned with them.
However, the term "degree of supervision" covers also the methods of
ensuring compliance with the means thus adopted and, in particular, the
method of deciding whether the administering authority has complied with
them and what steps it ought to take with that object in view. If the
General Assembly were to be enabled to take binding decisions on petitions
and reports subject to voting requirements less stringent than those
obtaining in the Council of the League of Nations—such decisions including
request for further information, expression of regret at or disapproval of
the action or inaction of the Administering Authority, and call for the
cessation of the action disapproved of—then the innovation thus effected
would appear to amount to a degree of supervision exceeding that previously
in force. This is so although on occasions such decisions may amount to an
approval or support of the action of the Administering State—in which case
it might be argued that the less exacting vote implies a relaxation of the
degree of supervision. However, the State subject to supervision is
primarily concerned with the potential interference with its freedom of
action by the supervisory organ. Thus viewed, the less exacting method of
voting adds to the stringency and the degree of supervision— just as a
change of the procedure of voting may add to the extent of the obligations.
If I agree to accept the obligation to pay taxes in pursuance of unanimous
decisions of a committee, then my obligation is increased if the committee,
by changing its procedure, call impose taxation by a majority vote. This
seems to be a proposition of common sense.
My view, as expressed below, is that Rule F does not result in an excess of
supervision for the reason that the decisions of the Council of the League
did not require absolute unanimity and that, in any case, the decisions of
the General Assembly are not of the same legal authority as the decisions of
the Council of the League. But I am not of the view that the Opinion of the
Court ought to base the [p95] answer to the question put to it on the
ground that the degree of supervision has no relation to the question of
voting. The procedure of voting determines the degree of supervision. For
even if we do not go to the length—to the unwarranted length—of conceding
that a valid decision of the Council of the League of Nations acting as the
supervisory organ of the Mandates System could be prevented by a veto of the
Mandatory States, the fact remains that, according to the contemplated Rule
F, for the otherwise unanimous decisions of the Council which included all
the principal Powers that were Members of the League, there is to be
substituted a decision of two-thirds of the General Assembly which may or
may not include the vote of any permanent Member of the Security Council,
which may represent less than one-fourth of the budgetary contributions or
less than one-fourth or one-fifth of the total population of the Members of
the United Nations, and which acts by methods different from those which characterised the Council of the League which, in turn, in conformity with
the entire political climate of the League, tended to proceed, ultimately,
by agreement rather than by counting of votes. Neither is it altogether
irrelevant that on the Council of the League of Nations that unanimity or
quasi-unanimity had the additional safeguard of being influenced by the
reports and the point of view of a commission of experts—for the Mandates
Commission was a commission of experts—of high standing and independent of
governments. The decisions of the General Assembly, which will be reached
according to the contemplated Rule F, will be formed under the impact of the
Committee on South Africa—a body whose devotion and disinterestedness must
not be questioned but which is of different composition.
These factors are directly relevant to the question of the "degree of
supervision". This is not inconsistent with the fact that the second part of
the passage ("and should conform as far as necessary to the procedure
followed by the Council of the League of Nations") also, and more directly,
refers to voting. Accepted usage includes voting within matters of
procedure. It is probable that, while the first part of the passage refers
to the major principle of not exceeding the degree of supervision hitherto
obtaining, the last quoted passage is directed to the more specific problem
of the approximation, as far as possible, of that, procedure to that
obtaining under the Council of the League of Nations. For these reasons I am
reluctant to admit that the ordinary and natural meaning of words excludes
the method of voting from the notion of degree of supervision. There is no
ordinary and natural meaning of the term "degree of supervision" in the
abstract. Its meaning is not something which appears on the surface ; it is
relative to the situations and problems with which the Court is concerned.
Moreover, it is relative to the legal issues directly connected with the
situation. Thus, assuming that the main South African contention [p96] on
the question of unanimity is correct, it would be reasonable to assume that
the expressions used by the Court with regard both to "degree of
supervision" and "procedure" were not used with the intention of ignoring
the legal position thus established. It may not he profitable to regard the
entire issue as non-existing on the ground that the words used have a
meaning which is fixed, certain and immutable.
It is, of course, possible that the question of voting was not before the
mind of the Court when it gave the Opinion in 1950. This does not mean that
the procedure of voting is not an essential element in the situation. On the
contrary, it is for this Court, confronted as it is with an apparent gap in
the Opinion of the Court of 1950 with respect to a situation which calls for
clarification, to fill the lacuna by all available means of interpretation.
These do not include the knowledge of any particular member of the present
Court as to the state of his—or his colleagues'—minds at the time when the
Advisory Opinion was rendered in 1950.
It is of importance, in this connection, to bear in mind the relation
between the two passages here discussed. In my view, of the two conditions
there prescribed, the first, relating to the degree of supervision, is the
governing directive of a substantive character; the second, which is
qualified by the words "as far as possible", is, in terms, procedural. The
question is whether the Opinion of 1950 can be properly interpreted in a way
which would subject the substantive rule to considerations of procedural
conformity and convenience. The question is whether such considerations can
properly be permitted to affect or impair the governing principle laid down
by the Court in 1950 according to which, in the absence of agreement on the
part of the Union of South Africa, the degree of supervision by the United
Nations must not exceed that exercised by the Council of the League of
Nations.
There is room for the view that the Union of South Africa is legally
entitled to resist any attempted extension of the scope of its
accountability and of the corresponding degree of scrutiny, interference and
supervision by the United Nations. even if such extension is of a procedural
nature, for instance, by way of a particular system of voting, so long as no
conclusive proof has been adduced that such extension is unavoidable on
account of an imperative necessity of relying on the procedure in force in
the General .4ssembly and unalterable in any circumstances.
The System of Trusteeship under the United Nations has not replaced the
Mandates System ; the latter remains in force so far [p97]as South-West
Africa is concerned. As repeatedly stated in the Opinion given in 1950 the
continued exercise of the Mandate must be subject to supervision surrounded
by the same, but not greater, obligations and safeguards as those which
existed under the League of Nations. Now the obligations of a country can be
decisively influenced by the voting procedure in respect of the decisions
which interpret and apply those obligations. When the Opinion of 1950 said,
and reiterated, that the obligations of the Mandatory remained unaltered, it
did not mean only that South Africa continued to be bound by these
obligations and that she must not subtract from them ; it meant also that
these obligations ought not to be increased. The continuation of the
obligation must in all fairness be held to work both ways. This seems to me
to be the governing consideration. In relation to it, the interpretation,
however necessary, of the terms "degree of supervision" and "as far as
possible" seems almost to assume the complexion of a technicality. In
relation to it, exclusive reliance on the supposed ordinary and natural
meaning of the expression "degree of supervision" as bearing no relation to
the voting procedure would seem to me highly questionable.
As I see it, the words "as far as possible" do not mean that the unqualified
injunction against exceeding the degree of supervision under the League of
Nations is in fact qualified by the obligation to follow "as far as
possible"—and only as far as possible —the procedure of the Council of the
League of Nations and that if such approximation to that procedure is not
possible having regard to the voting procedure of the General Assembly of
the United Nations as laid down in Article 18 of the Charter, then the
degree of supervision must unavoidably be exceeded. The Opinion of the Court
rendered in 1950 did not Say that the degree of supervision as it existed
under the Mandates System must not be exceeded provided that that is
possible under the then existing voting procedure of the General Assembly.
On the face of it, the words "as far as possible" may be interpreted as
meaning that, within the framework of compliance with the overriding
prohibition of exceeding the degree of supervision of the League of Nations
and if there is a variety of procedures available, that procedure must be
followed which corresponds more closely to that of the Council of the League
of Nations. For reasons stated elsewhere in this Opinion, I cannot accept
the view that the words "as far as possible" contained an implied and
imperative reference to an existing and unalterable procedure of the General
Assembly and that any such interpretation has the legitimate effect of
overriding the basic prohibition of extending the degree of supervision
under the League of Nations by dint of the statement that by adopting the
rule of two-thirds majority the General Assembly went "as far as possible",
i.e., as far as is legally permissible under the Charter. That statement
must be proved by a rigorous and searching examination. Such examination may
show, as suggested in another part of this Separate [p98] Opinion, that it
was legally possible for the General Assembly to go somewhat further than
does Rule F in complying with the direction t.0 approximate "as far as
possible" to the procedure of the Council of the League.
My own conclusions with regard both to construction and the three main
questions as formulated above are such that it is not necessary for this
Court to adopt an interpretation of the Opinion given in 1950 which in my
view would amount to saying that in that Opinion the Court laid down, as the
result of an oversight or otherwise, two mutually contradictory directives,
and that, by way of an implied reference to an unalterable voting procedure
of the General Assembly, it reduced to meagre proportions the essence of its
substantive ruling on one of the principal aspects of its Advisory Opinion
on the International Status of South-West Africa.
***
Question I : Did the Rule of Absolute Unanimity obtain in the Council of the
League acting as a Supervisory Organ of the Mandates System ?
I now come to the first of the three principal legal issues with which the
Court must properly be deemed to be confronted in the present case : Does
the contemplated Rule F correctly interpret the Opinion of the Court
inasmuch as it replaces by a less stringent system the rule of absolute
unanimity which, according to the contention of the Government of South
Africa, obtained in the Council of the League of Nations in respect of its
supervisory functions under the Mandates System ? Did any such rule obtain
in the Council of the League of Nations ?
With regard to this question, I am unable to accept .the contention advanced
by the Government of the Union of South Africa that there is an
inconsistency between the proposed Rule F and the procedure followed by the
Council of the League of Nations for the alleged reason that the latter was
.based on the rule of absolute unanimity, including the vote of the
Mandatory State concerned. This has been the principal view put forward by
the Government of South Africa in the matter. I have given reasons why it
was desirable that the Court should examine it in all its aspects.
Admittedly, the procedure of the Council of the League of Nations was
governed by the principle of unanimity not only of the Members of the
Council but of States who, though not ordinarily [p99] Members thereof,
were invited to sit at its table in connection with a matter under its
consideration—a rule which applied also to the representatives of the
Mandatory State invited to take part in the proceedings of the Council.
However, having regard both to principle and practice, as I interpret them,
the ruling of the Court given in its Twelfth Advisory Opinion on the
Interpretation. of the Treaty of Lausanne must be held to apply also to the
question with which the Court is now concerned. In that case, the Court held
that the principle which was enshrined in Article 15 of the Covenant and
which excluded the vote of the parties to the dispute from the requirement
of unanimity as a condition of the validity of a recommendation made by the
Council, was of general application in so far as it embodied the "well-known
rule that no one can be judge in his own suit" (Series B, No. 12, p. 32).
That "well-known de", henceforth sanctioned by a pronouncement of the
Permanent Court of International Justice, must be held to apply to the case
in which an international organ, even when acting otherwise under the rule
of unanimity, judges in a supervisory capacity the legal propriety of the
conduct of a State administering an international mandate or trust. The
supervisory organ may do so either directly by pronouncing a verdict upon
the conformity of the action of the administering State with its
international obligations or indirectly by calling upon it to adopt—or
desist from—a certain line of action.
In the absence of cogent proof to the contrary there is no justification for
rendering legally permissible a situation in which a State, bound by virtue
of solemn international obligations to observe a definite rule of conduct
and to submit to the international supervision of its observance, is at the
same time entitled to render, by its adverse vote, such supervision nominal
and ineffective. Undoubtedly, international practice knows instances of
States reserving for themselves the right to determine the extent of their
own obligation and, in a sense, to remain judges in their own case. However,
unless such right is reserved in explicit terms, States which thus attempt
to avail themselves of their contractual capacity for purposes alien to its
primary purpose—which is the creation of binding obligations—act at their
peril. Such express reservation of this exceptional right, obnoxious to
legal principle and to tenets of good faith, cannot be conclusively inferred
from the mere fact that the basic instrument provides for the rule of
unanimity. It could not, in particular, be inferred from the rigid wording
of Article 5 of the Covenant, which laid down that, unless expressly
provided to the contrary, the de of unanimity should obtain. For, in the
absence of a clear provision to the contrary, that de is in itself qualified
by the principle laid down by the Permanent Court of International Justice
in the Advisory Opinion on the Interpretation of the Treaty of Lausanne. In
that Opinion the [p100] Court considered this rule to be of general
application for the decisions of the Council when acting in a judicial or
arbitral capacity. Its ruling was not limited to cases brought before it by
virtue of an extraneous treaty.
It must be conceded that the application of the principle nemo judex in re
sua to what is in essence a controversy between the mandatory and the
otherwise unanimous Council constitutes an extension of that principle as
laid down by the Court. However, the extension is more apparent than real.
For the reasons stated above, there does not seem to exist any solid ground
for distinguishing between decisions taken in pursuance of the supervisory
functions of an international organ and decisions of a judicial or arbitral
nature such as that with which the Council of the League was confronted in
the matter of the determination of the boundary between Turkey and Iraq. In
all cases in which there is a difference of opinion, brought to the point of
a formal discordant vote, between the supervising organ and the
administering authority as to the conformity of the conduct of the latter
with its international obligations, such difference has the essential
elements of a dispute as to the application of a binding international
instrument. In any such controversy the principle that no one is judge in
his own cause must be deemed to apply. To put it differently, there is no
valid reason for distinguishing, in connection with the applicability of the
principle that no one is judge in his own cause, between the judicial and
the supervisory organs. Both administer, in different ways, a system of
binding rules of conduct.
***
I will now turn from principle to practice. The practice, as I read it, of
the League of Nations, does not conclusively support the view that there was
an invariable, or even predominant, tendency—in cases in which a Member of
the Council was itself a party to the dispute—to attach literal importance
to the seemingly rigid or exhaustive provisions of Article 5 of the Covenant
in the matter of unanimity. On occasions, the principle of absolute
unanimity, including the votes of the parties to the dispute, was acted upon
with some rigidity. This occurred in two cases in connection with the
application of Article II of the Covenant, namely, in the dispute between
Poland and Lithuania in 1928 (Official Journal of the League of Nations,
1928, p. 896), and, in particular, in the course of the Sino-Japanese
dispute in 1931 (Official Journal of the League of Nations, 1931, p. 2358).
In both cases a resolution of the Council, assented to by all its Members
Save one of the parties to the dispute, was formally stated not to be
binding. It may be observed that with regard to [p101] the latter case,
Professor Brierly, a writer of authority noted for his restraint, stated
that the interpretation of Article n then adopted was "unexpected and
doubtfully correct" (The Covenant and the Charter, 1947, p. 15). Apart from
these rare cases, the tendency was either in the direction of an express
amendment of these provisions of the Covenant which, on the face of it, left
room for the frustration of an otherwise unanimous decision by a vote of an
interested party or in the direction of regarding such amendment as
unnecessary and of acting on the view that the principle nemo judex in re
sua was already an integral part of the Covenant. Thus, in 1921, the
Assembly recommended that, pending the ratification of an express amendment
of the Charter to that effect, the votes of the parties to the dispute
should be excluded in the voting on the question whether a Member of the
League had gone to war in breach of the Covenant (Records of the Second
Assembly, Plenary Meeting, p. 806). In 1922, the Council seems to have
proceeded in two cases on the view that when acting in an arbitral or
semi-judicial capacity it was bound to exclude the votes of the parties for
the purpose of ascertaining the unanimity required by the Covenant. The
first of these cases concerned the claim of India to be included among the
eight States of chief industrial importance in connection with
representation on the Governing Body of the International Labour
Organisation. In that case, the Council endorsed and acted on the legal
opinion submitted to it by the Secretariat to the effect that "the Council
would act in this affair as arbitrator, and that India could not be both
judge and party to the case" (Official Journal, 1922, p. 1160). The case is
of special importance in the present connection inasmuch as the Council
acted in an administrative rather than judicial capacity. In the acute
Greco-Bulgarian dispute in 1925, the Council, acting in a private meeting in
the absence of the representatives of the two parties, prepared what was
described as a "dictatorial request" for acceptance by the parties who
declared themselves ready to accept the decision of the Council thus
subsequently sanctioned by a unanimous vote (Official Journal, 1925, p.
1700). In the same year, in the Hungarian Optants dispute between Hungary
and Roumania, which came before it under Article II, paragraph 2, of the
Covenant, the Council accepted a recommendation by a unanimous vote
exclusive of the representatives of the parties after the President of the
Council stated that, in inviting the Council to pronounce itself on the
recommendation contained in the report, he "deliberately excepted two
members of the Council who are parties to the dispute" (1927, p.1413).
It would thus appear that the Twelfth Advisory Opinion of the Court, in
addition to being based on a general principle of [p102] law of cogent
application, was not without support in the practice of the League, both
prior and subsequent to the time when it was rendered. It may be useful in
this connection to draw attention to the official publication of the
Secretariat of the League of Nations, entitled "The Council of the League of
Nations, 1920-1938", in which, on page 69, according to the view of the
Secretariat, on the question of the inclusion of the votes of the parties in
determining unanimity "there is a certain division of opinion as to whether
the votes of the parties should or should not be counted".
It has been maintained that whatever may have been the practice of the
Council of the League of Nations in the matter of international disputes, in
other spheres it strictly adhered to the principle of absolute unanimity.
From this the conclusion is drawn that the Mandatory State enjoyed a power
of veto with regard to the supervisory function of the Council. I am not
persuaded of the accuracy either of what is supposed to be the factual
premise or of the conclusion which is being drawn from it. An account of
some of the practice of the Council in this sphere is given in a paper
prepared by the Secretariat of the United Nations for the working group of
the Committee on South Africa and included as No. 39 in the file of
documents put at the disposal of the Court. There are other cases to which
reference will be made presently. My reading of the practice as recorded is
that, while there is no instance of a resolution of the Council being
formally declared adopted as against the opposing vote of the mandatory
State, there is, on the evidence, no authentic and recorded instance of a
contemplated resolution of the Council being frustrated as the result of the
adverse vote of the mandatory State. A study of these cases, which were
concerned with the mandated territory of South-West Africa, shows that while
in no instance a resolution was adopted contrary to the express attitude of
the Government of South Africa, this was not necessarily so because of any
threatened exercise of the power of veto. In some of these cases, that
Government, after having stated its doubts or objections, did not insist on
them ; in two other cases the Council modified an alternative text submitted
hy the representative of South Africa ; in the sixth case the Government of
South Africa eventually decided not to be represented at the resumed
discussion of the issue in question. The same solution was adopted by the
South African Government in some other cases, of which one relating to the
status of the South African Mandate calls for special mention. In its
Report, made in 1935, the Mandates Commission noted that it had been
informed by the Mandatory Power that the latter had appointed a special
Committee to study certain constitutional problems raised by a motion of the
Legislative Assembly of the territory aiming at its incorporation as "a
fifth province of the Union". The Report concluded with the following
passage : "As the guardian of the integrity of the institution .of Mandates,
the Commission therefore expects to be informed of the Mandatory [p103]
Power's views on the question. which it will not fail to subject to that
careful examination that its international importance demands. The
Commission wishes, on this occasion, to draw attention to the Mandatory
Power's fundamental obligation to give effect, not only to the provisions of
the Mandate, but also to those of Article 22 of the Covenant." (League of
Nations Official Journal, 1935, p. 1235.) The Report of the Commission on
this and other matters was adopted by the Council which instructed the
Secretary-General to communicate to the Mandatory Powers the observations of
the Commission and to request them to take the action asked for by the
Commission (ibid., p. 1148). The Government of South Africa informed the
Secretary-General that it would not be represented at the meeting of the
Council. It may or may not be profitable to enquire into the reasons which
prompted abstention from participation in a decision which had a distinct
bearing on an important issue touching upon an essential aspect of the
rights and duties of the mandatory. At least on six other occasions the
Government of South Africa was not represented at meetings of the Council at
which Resolutions were adopted or discussions took place concerning
South-West Africa.
The fact which thus emerges with some clarity from a survey of-the practice
of the Council of the League of Nations on the subject is that it supplies
no conclusive or convincing evidence in support of the view that as a matter
of practice the rule of unanimity operated and was interpreted in a manner
substantiating any right of veto on the part of the mandatory Power. It
would probably be more accurate to say that, assuming that it existed during
the initial period of the functioning of the League, that right fell into
desuetude and lapsed as the result. Undoubtedly, importance was attached to
securing the concurring vote of the Mandatory Power by patient efforts at
compromise and accommodation, especially with respect to the language of the
Resolutions of the Council. It is therefore probable that a case,
repeatedly— though rather vaguely—referred to in the argument of the
Government of South Africa before the United Nations, in which the Council
of the League of Nations desisted in deference to the attitude of South
Africa from a proposed course of action, is not wholly apocryphal: There
were bound to be a number of cases of that nature. However, these do not
tell the whole story. In other —and probably more frequent—cases unanimity
was achieved for the reason that the Mandatory Power adapted its attitude to
the general sense of the Council, or, in some cases, for the reason that it
decided not to participate in the meeting at which the Council accepted the
Resolution. It is probable—we cannot put it higher than that—that it adopted
that course becaus2 it deemed it preferable to open disagreement with an
otherwise unanimous Council or to a public debate before an antagonistic and
practically unanimous Assembly. From this point of view there is a distinct
[p104] measure of unreality in the insistence on the absolutely unanimous
vote in the Council. The Council was not a mere voting machine.
It is of interest to note that Professor Quincy Wright, in the most
exhaustive treatise on the subject of mandates, comes to the following
conclusion : "Thus it is possible that a resolution dealing with a
particular mandatory might be effective over the adverse vote of that
mandatory. On the other hand, it may be thought that the Council in dealing
with mandates acts in an administrative rather than a quasi-judicial
character, in which case absolute unanimity might be required. It is
probable that the character of the particular question before the Council
would determine the matter but up to date there has always been absolute
unanimity." (Mandates under the League of Nations (1930), p. 132. A similar
view is expressed on p. 522.) However, as already suggested, the Council, in
passing resolutions on mandates, acted essentially in a quasi-judicial
capacity. Apart from procedural safeguards, there is probably no basic
difference between the judicial and the administrative application of the
law. As shown, the circumstance that resolutions had in fact been accepted
by absolute unanimity throws no decisive light on the legal position here
examined. When Professor Wright stated—a statement subsequently repeated by
other well-informed commentators (see Duncan Hall, Mandates, Dependencies
and Trusteeship (1948), p. 175)—that as a matter of fact decisions of the
Council in the matter of mandates were unanimous, the statement, if we
disregard the occasional abstention of the Mandatory Power from
participation in the meetings, was on the face of it correct. But, as shown,
it was clearly intended only as a statement of fact, not of law. That" fact
is open to varying—and divergent—legal construction.
There is thus in the practice of the Council no conclusive factor which is
apt to override the basic legal considerations to which I have referred
above, namely, that in an instrument such as the Covenant of the League of
Nations the general requirement of unanimity is not in itself sufficient to
displace the principle that a party cannot be judge in its own case ; that
the requirement of unanimity, however expressly stated, is implicitly
qualified by the latter principle ; and that nothing short of its express
exclusion is sufficient to justify a State in insisting that it should, by
acting as judge in its own case, possess the right to render inoperative a
solemn international obligation to which it has subscribed. This principle
ought to be kept prominently in mind when it is a question of the supervised
State claiming the right to frustrate by its own vote the legal efficacy of
the supervision. The effectiveness of international obligations may not be
the only governing consideration [p105] in the interpretation of treaties
seeing that the parties occasionally intend to render them less effective
than is indicated by their apparent purpose. But it is a consideration which
cannot be ignored. In so far as the principle nemo judex in re sua is not
only a general principle of law, expressly sanctioned by the Court, but also
a principle of good faith, it is particularly appropriate in relation to an
instrument of a fiduciary character such as a mandate or a trust in which
equitable considerations acting upon the conscience are of compelling
application. This, too, is a general principle of law recognized by
civilized States. There is therefore no sufficient reason for assuming that
if the Permanent Court of International Justice had been called upon to
apply its ruling in the Twelfth Advisory Opinion to the question of
unanimity in connection with the supervisory function of the Council in the
matter of mandates, it would have abandoned the principle there enunciated.
It may be strange that ten years after the dissolution of the League this
Court should be confronted with the same question, but this is not a valid
ground for departing from that principle. There is, it may be added, no
reason why the Court should not interpret the Covenant of the League as it
existed in 1945. The determination of rights validly acquired under treaties
or statutes which have lapsed is a frequent occurrence in judicial practice.
There is no occasion for any excess of judicial caution in this respect.
Moreover, in the present case the Court interprets primarily the Mandate
which, as it repeatedly stated in its Opinion of 1950,.continues to exist.
I cannot say that I have arrived without hesitation at my conclusion on this
aspect of the question or that I would have been prepared to base my
affirmative answer to the question put by the General Assembly solely on
this ground. am impressed by the doubts voiced in this connection by Judge
Klaestad in his Separate Opinion. For we ought to attach due weight to the
general rule of unanimity in the Covenant and the fact that there is no
explicit case on record in which the Council affirmed its right to give a
valid decision in face of a formal objection of the interested Mandatory
State. At the same time, I must attach equal —and, I believe, decisive—
weight to the general principle as here outlined and as acted upon by the
Court itself in the Twelfth Advisory Opinion ; to the preponderant practice
of the Council of the League in a sphere not confined to the settlement of
disputes; and, above all, to the custom—to what in English practice is
referred to as a constitutional convention—according to which the Mandatory
States never in fact exercised any right of veto. Also, I have some doubts
as to the existence of any vested right of South Africa to an immutable
system of voting in face of actual or potential changes in the practice of
the League of Nations on the subject of the voting procedure. There is no
doubt that, in the [p106] course of time and without any formal amendment,
the rule of absolute unanimity ceased to be a factor to which there was
invariably attached decisive importance. This, in addition to the practice
outlined above, is shown by the gradual adoption of such practices as
passing of resolutions by way of a "vœu" or recommendation by simple
majority ; by treating some substantive matters as being questions of
procedure ; by considering abstention as absence ; and by the practice of
majority voting in Committees. When in 1937 Members of the League of Nations
expressed their view as to whether absolute unanimity of the Council was
required for a request for an Advisory Opinion, a large majority of those
who formulated their attitude denied the existence of any such requirement.
This, was so although in this case there were reasons of some cogency for
maintaining the rule of absolute unanimity having regard to the principle
that States cannot be compelled, directly or indirectly, to bring their
disputes before the Court. A proper interpretation of a constitutional
instrument must take into account not only the formal letter of the original
instrument, but also its operation in actual practice and in the light of
the revealed tendencies in the life of the Organization. This being so,
although I am not prepared to say that the main contention of South Africa
was wholly unfounded, I cannot accept it as being legally correct.
For these reasons, my conclusion is that the proposed Rule F is not
inconsistent with a correct interpretation of the Opinion of the Court of
1950 inasmuch as it is based on the view that the opposing vote of the
mandatory State could not in all circumstances adversely affect the required
unanimity of the Council of the League of Nations.
***
Question 2 : Has the General Assembly the Power to Proceed by a Voting
Procedure other than that laid down in Article 18 of the Charter ?
Although the Court has decided that it is not necessary for it to consider
the South African contention in so far as it is based on the notion that the
absolute unanimity of the Council of the League was required for the
validity of its decisions, it has not thereby disposed of the issue before
it. For there remains the possibility, foreshadowed in the Request for the
present Opinion, of alternative voting procedures other than absolute
unanimity or the two-thirds majority of Rule F. The General Assembly
expressly asked the Court to indicate what other voting procedure should be
followed in case it finds that Rule F is inconsistent with its Opinion of
1950. There may be a qualified unanimity (i.e., one [p107] not including
the vote of the Administering State), or some kind of majority half-way
between unanimity and two-thirds such as a majority of three-fourths or
four-fifths, or any kind of majority which includes certain States or groups
of States such as the States represented on the Trusteeship Council or such
of these States as administer Trust Territories. Can it be said that all
these procedures, as well as that of absolute unanimity, are ruled out for
the reason that they are constitutionally inadmissible having regard to the
Charter of the United Nations and the fact that the only voting procedure
'permitted to the General Assembly is that of simple majority or of a
two-thirds majority ? Is it legally possible for the General Assembly, in
any circumstances, to adopt a voting procedure different from that laid down
in the Charter, namely, simple majority or a two-thirds majority? Is it
legally possible for it to determine that a certain type of question shall
be decided in the future by any of the alternative voting procedures as
outlined above ? If it is legally possible for the General Assembly to adopt
any of these voting systems and if Rule F, which replaces the unanimity rule
by a two-thirds majority, is not, upon examination, shown to represent the
closest possible approximation to the procedure of the Council of the League
of Nations, then there arises in an acute form the question of its
compatibility with the Opinion of the Court given in 1950. What is the
answer to these questions ?
To put it in different words, must Rule F be regarded as approximating "as
far as possible" to the procedure of the Council of the League for the
reason that under the voting system of the Charter no other voting procedure
Save that of simple majority or a two-thirds majority is possible or
permissible ? Did the Court have that limitation in mind when it used the
expression "as far as possible" ? That this was so was repeatedly asserted
during the debates in the General Assembly and in the Committee for
South-West Africa. It is a problem which is essential to the whole question.
Its examination—and an answer to it—cannot be avoided on the ground that a
positive answer constitutes a juridical impossibility. The General Assembly
did not consider it in that light for, as stated, it specifically asked the
Court to say what should be its alternative voting procedure in case the
Court should give a negative answer to the main question put to it. Neither
can the answer to the constitutional aspect of the question be taken as
self-evident by way of "construction" in the sense that as the Court held
that the supervision must lie with the General Assembly, the General
Assembly can resort for that purpose to a procedure no other than that laid
down in the Charter, and that by adopting Rule F it followed the procedure
of the Council of the League as far as possible. To do so is to beg the
question. Neither do I think it permissible to avoid it because of [p108]
the difficulty raised by a baffling practice and by conflicting
con-siderations of principle.
Principle would seem to suggest that it is not legally possible for the
General Assembly to decide—whether by an ordinary majority or a two-thirds
majority—that any question or category of questions, or all questions, shall
be in the future decided by a majority of three-fourths or four-fifths or by
a unanimous vote. The reasons for that view are persuasive. If the General
Assembly were to make any such decision, it would be depriving some, as yet
undetermined, Members of the General Assembly of the right, safeguarded by
the Charter, to have a matter determined by a two-thirds majority in which
they participate. If that is so, then it would appear that the General
Assembly is not legally in the position to adopt any such special procedure
of voting even in pursuance of an Advisory Opinion of the Court. Any such
change must be the result of an amendment of the Charter. This view is
strengthened by jurisprudential considerations of obvious cogency:
The size of the majority required for the validity of the decisions of a
corporate political body is not a mere matter of technical convenience or
mathematical computation. It is expressive of the basic political philosophy
of the organization. A study of the preparatory work of the Conference of
San Francisco, including that of the Dumbarton Oaks proposals, shows that
the adoption of the existing system of voting was the result of prolonged
deliberation. In any case it now forms part of the law of the Charter.
Unlike in the League of Nations, the basic philosophy of the Charter of the
United Nations is, to put it in a negative form, that of the rejection of
the rule of unanimity. There is not a single provision of the Charter which
prescribes or authorizes for voting in the General Assembly the requirement
of unanimity or any kind of majority other than a simple or two-thirds
majority (although, significantly, there is in Articles 108 and 109 a
provision for a majority which must include permanent Members of the
Security Council). It is outside the purpose of this Opinion to enquire into
the reason and objects of that system of voting based on the rejection of
unanimity or anything approaching it. It suffices to Say that the system as
adopted is in accordance with the structure of the United Nations conceived
as an entity existing, as it were, independently of its Members and endowed
with a personality of its own—one aspect of which is vividly illustrated by
the Opinion of the Court in the Injuries Case—as distinguished from the
League of Nations which in acting, by virtue of the principle of unanimity,
by agreement rather than by majority, bore the character of an association
of a different character. [p109]
Principle would seem to demand that whenever the basic instrument of a
corporate political body prescribes the manner in which its collective will
is to be formed and expressed, that basic instrument is in this respect
paramount and overriding and nothing Save a constitutional amendment as
distinguished from legislative action can authorize an alternative procedure
of voting. On that view it. would not seem to matter, in the case of the
United Nations, whether the action is taken in pursuance of the objects of
organization, or in pursuance of a function accepted under some extraneous
instrument such as a treaty. Such function must in any case lie within the
orbit of its competence as laid down in the Charter. For the organization
cannot accept the fulfilment of a task which lies outside the scope of its
functions as determined by its constitution. Thus, for instance, if two or
more States were to confer by treaty upon the General Assembly certain
functions in the sphere of pacific settlement—e.g., by appointing an
arbitration commission or by deciding itself the disputed issue—and if the
treaty provided that these functions shall be fulfilled by a three-fourths
or four-fifths majority or qualified unanimity, principle would seem to
suggest that the General Assembly cannot act in that way. It cannot override
a seemingly mandatory provision of the Charter by the device of accepting a
task conferred by a treaty. It might otherwise be possible to alter, through
extraneous treaties, the character of the Organization in an important
aspect of its activity.
These were probably the reasons—although they do not seem to have been
expressed in articulate language—which made some Members of the United
Nations insist that in giving its Opinion in 1950 the Court must have
envisaged the voting procedure of the General Assembly such as it is and
must have ruled out the possibility of its being adapted to the governing
requirement that the degree of supervision must not exceed that under the
System of Mandates. In doing so, they were able to point to the Advisory
Opinion No. 12 on the Interpretation of the Treaty of Lausanne in which the
Court appeared to have laid down the principle that a political body
entrusted with a decision by virtue of an extraneous instrument can proceed
in the matter only in accordance with its own procedure of voting. If that
view, so cogently supported by principle and, apparently, by the Court, is
correct, then, clearly, Rule F cannot be challenged on the ground that it is
tainted by an avoidable failure to approximate to the voting procedure of
the Council of the League. It means, to put it in different words, that Rule
F is a correct interpretation of the Opinion of 1950 for the reason : (a)
that the absolute unanimity rile, even if it were correct, could not be
given effect having regard to the binding character of the voting procedure
of the Charter; and (b) that, for the same reason, it was not legally
possible for the General Assembly to [p110] contemplate or to adopt any
alternative procedure falling short of absolute unanimity.
***
However, although the view as here outlined seems to be supported by
principle and practice, there are opposing considerations both of practice
and principle. In fact, the Permanent Court of International Justice, after
enunciating in the Twelfth Advisory Opinion the rule which seems to go one
way, qualified it in the same Opinion in the opposite direction. It began by
rejecting the view, put forward by Great Britain, that the unanimity rule as
laid down in Article 5 of the Covenant, contemplated only the exercise of
powers granted in the Covenant itself. It said : "The fact that the present
case concerns the exercise of a power outside the normal province of the
Council, clearly .cannot be used as an argument for the diminution of the
safeguards with which, in the Covenant, it was felt necessary to surround
the Council's decisions" (Series B, No. 12 p. 30). It thus seems to have
adopted the view, which I have described as seemingly being in accordance
with principle, that a political body can act only in accordance with the
procedure as laid down in its constitution. However, after having said that,
the Court proceeded to qualify the apparent general rule. It said : "On the
other hand, no one denies that the Council can undertake to give decisions
by a majority in specific cases, if express provision is made for this power
by treaty stipulations" (at p. 30). Again, after referring to the binding
character of the voting procedure of a "body already constituted and having
its own rules of organization and procedure", it qualified that statement by
adding : "unless a contrary intention has been expressed" (at p. 31).
In thus qualifying the major principle which it enunciated and on which it
acted, the Court was in fact able to rely—although it did not refer to—on
some substantial practice of the League of Nations. Of that practice the
Rules of Procedure adopted by the Assembly and the Council of the League
provide a significant example. Article 5 (1) of the Covenant laid down as
follows : "Except when otherwise provided in this Covenant or by the terms
of the present treaty, decisions of any meeting of the Assembly, or of the
Council, require the agreement of all the Members represented at the
meeting." However, the Rules of Procedure, subsequently framed with respect
to both the Assembly and the Council, effected in this matter an
important—though at first sight inconspicuous— change. In Rule 19 (1) of the
Rules of Procedure of the Assembly the words of Article 5, paragraph 1, of
the Covenant were reproduced with a significant modification. In place of
the words "by the terms of the present treaty" there were substituted the
word: "of a treaty". Article 8, paragraph (1), of the Council's Rules of
Procedure [p111] made the same change. In the Rules of Procedure of the
Council adopted on May 26th, 1933, this aspect of the matter was expressed
even more clearly. Article 9 of the revised Rules provided as follows:
"Except where otherwise expressly provided by the Covenant, or by the terms
of any other instrument which is to be applied, decisions at any meeting of
the Council require the agreement of all the Members of the League
represented at the meeting."
Moreover, in a large number of treaties adopted subsequent to the Peace
Treaties and in some cases expressly accepted by the Council, provision was
made for voting by some kind of majority as distinguished from, unanimity.
This applied in particular to the "Minorities Treaties" which all contained
provisions allowing the Council to proceed by a majority of votes in
proposing modifications to these treaties. Similar provisions were
incorporated in some other instruments such as Article 4 of the Declaration
of November 9th, 1921, of the Principal Allied Powers concerning Albania ;
Article 15 of the second Geneva Protocol of March 14th, 1924, concerning the
economic rehabilitation of Hungary ; Article 14 of Annex 2 and Article 4 of
Annex 3 of the Memel Agreement of May 8th, 1924, between the Principal
Allied Powers and Lithuania; Article 9 of the Financial Agreement of 9
December, 1927, between Bulgaria and Greece ; Article 7 of the Agreement
of20 October, 1921, concerning the non-militarization and neutralization of
the Aaland Islands ; Article 8 of the Locarno Pact of October 16th, 1925 ;
Article 28 (3) of the Agreement on Financial Assistance of 2 October, 1930.
And, of course, there were numerous provisions to that effect in the various
Peace Treaties to which, as stated, express reference was made in the
Covenant. There was no disposition among authors who commented in detail
upon the amended Rules of Procedure and the provisions of these treaties to
question their propriety in any way (see Schücking-Wehberg, Die Satzung des
Völkerbundes, 3rd ed., Vol. 1 (1931), pp. 517, 521; Ray, Commentaire du
Pacte de la Société des Nations (1930), p. 226, 227 ; Stone in British Year
Book of International Law, 14 (1933), pp. 33-35).
Having regard to the practice of the League of Nations and to the important
qualification of the apparent major principle expressed by the Court in the
Twelfth Advisory Opinion, as well as to considerations of a practical
character, it cannot be said, by way of an absolute rule, that in no
circumstances may the General Assembly act by a system of voting other than
that laid down in the Charter. There is no room for any emphasis of language
suggesting that any such modification of the voting procedure is a juridical
impossibility. Frequent practice of the League of Nations accomplished that
juridical impossibility and the Court expressly gave it its approval. On the
other hand, in view of the persuasiveness of the contrary considerations
outlined above, it does not seem to me permissible to go as far as the Rules
of Procedure of the Assembly [p112] or the Council of the League—or,
indeed, the Court itself in the Twelfth Advisory Opinion—went in this
respect and to hold that a modification of the system of voting is permitted
every time when the Organization acts under a treaty other than its own
constitutional Charter. The correct rule seems to lie half-way between these
two solutions. The available practice and considerations of utility point to
the justification of a rule which recognizes in this matter a measure of
elasticity not inconsistent with the fundamental structure of the
Organization. Within these limits, it is in mgr view a sound legal
proposition that such modification is permissible under the terms of a
general treaty, in the general international interest, and in relation to
institutions and arrangements partaking of an international status—in
particular, in cases in which the General Assembly acts in substitution for
a body which has hitherto fulfilled the functions in question. This is the
position in the present case. While the powers of the General Assembly in
the matter are to be exercised primarily in pursuance of the Charter as
interpreted by the Court in its Opinion rendered in 1950, and in particular
of Articles IO and 80, they are also to be exercised in pursuance of the
continuing system of Mandates whose obligations were declared by the Court
to be binding upon the Union of South-West Africa in respect of the
territory which continues to be held under the international Mandate assumed
by her in 1920. In view of this, there is room, as a matter of law, for the
modification of the voting procedure of the General Assembly in respect of a
jurisdiction whose source is of a dual character inasmuch as it emanates
both from the Charter and the Mandate. In so far as considerations of
international interest constitute a legitimate factor in the situation, they
do s3 with much cogency in a situation which concerns the exercise of an
international trust in respect of a territory which is endowed with an
international status, which is the subject of an Opinion of this Court, and
which has been the cause of international friction.
The question which calls for an answer is whether in the present case there
exists a treaty of a character as described above. The words of the Opinion
of 1950 seem to suggest a negative answer inasmuch as the Opinion lays down
that "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" (at p. 137). However, the
passage must be read not in isolation but in the general context of the
Opinion and in the light of the dual character of the source of the
supervisory function of the General Assembly. The true meaning of the
passage in question is that Article IO of the Charter confers upon the
General Assembly the competence to fulfil the functions as derived from the
international instrument which establishes the international status of the
territory in question, namely, the Mandate. It is the Mandate which is the
original source of the [p113] powers of the General Assembly. The
competence to apply the Mandate is derived from Article 10.
It follows from what has been said above that there is no warrant for
considering as a dogma, for which no proof is required and with regard to
which any contrary evidence can be ignored, the rule that under no
circumstances may the General Assembly act under a voting procedure other
than that laid down in Article 18. This being so, what are the modifications
of the voting procedure of the General Assembly which may properly be
contemplated in this connection ? It is clear that any application of the
principle of absolute unanimity—which in any case would be ruled out by
virtue of the answer given above to Question 1—is inadmissible under the
legal principle here formulated for the reason that it offends against a
fundamental tenet of the constitution of the United Nations, namely, the
abandonment of the doctrine of unanimity. For the same reason there would
seem to be no room for a system of qualified unanimity not including the
vote of the administering State—a system which would be open to the
additional objection that it would place South Africa in some ways in a
better position than that obtaining under the procedure of the Council of
the League. For the number of States required for unanimity in the General
Assembly is about four times as large as in the Council of the League.
Yet there was—and there is—room for exploring the practicability of voting
procedures lying half-way between qualified unanimity and a two-thirds
majority. This Opinion is not the appropriate occasion for an examination of
these solutions. There may be an element of artificiality in some of them
inasmuch as they must of necessity leave out of account the differences in
the composition of the General Assembly and the Council of the League. The
discussions on the General Assembly show a somewhat disturbing absence of
attempts to explore some of the more practicable possibilities—though this
fact may perhaps be explained b>-the repetitive and rigid adherence on the
part of the Government of South Africa, an adherence unrelieved by
alternative proposals, to the notion of absolute unanimity. In particular,
there is room for the consideration of a: solution consisting, on the
analogy of Articles 108 and 109 of the Charter, in qualifying the
requirement of a two-thirds majority, as laid down in Rule F, by the
additional requirement that it must include either all the Members of the
Trusteeship Council other than South Africa or all its Members other than
South Africa administering Trust Territories. I am not prepared to say that
some such solution, couched in the very language of Article 18 of the
Charter, would be inconsistent with it. There is only limited merit in a
judicial interpretation intent upon extracting every ounce of rigidity from
a written constitution or in simplifying the issue by concentrating
exclusively on extreme [p114] solutions. Thus, while unanimity, absolute or
qualified, may be entirely alien to the spirit of the Charter and as such
inconsistent with it, this does not apply to alternative solutions falling
short of unanimity. In particular, when the General Assembly takes over
functions from a body whose procedure it is enjoined to follow as far as
possible, it seems to me reasonable to explore, in a spirit of accommodation
free from exaggerations of language, other solutions appropriate to the
situation and not basically inconsistent with the Charter.
Accordingly, in so far as Rule F fails to provide for practicable
modifications of the voting procedure of the General Assembly, not
inconsistent with the fundamental principles of the Charter of the United
Nations on the subject, I might, if not prevented by my answer to Question
3, feel bound to hold that Rule F does not approximate as far as possible to
the voting procedure of the Council of the League and that in so far as it
involves a higher degree of supervision it fails to conform with the Opinion
rendered in 1950. However, I cannot so hold for the reason that my answer to
Question 3 is that, as the decisions of the General Assembly are not of a
legal effect equal to that of the decisions of the Council of the League,
Rule F does not involve a degree of supervision exceeding that in force
under the Mandates System and that it therefore constitutes a correct
interpretation of the Opinion rendered by the Court in 1950.
***
Question 3 : Do the decisions of the General Assembly possess the same legal
force in the system of supervision as the decisions of the Council of the
League of Nations ?
The final, and in my view, decisive question is whether it cannot correctly
be said that Rule F is in accordance with the Opinion of the Court rendered
in 1950 for the reason that what South Africa is now asked to accept are
majority decisions which are not binding or not fully binding in place of
decisions which were binding—which means in effect that she is asked to
accept a system of supervision which, far from being more exacting, is much
les so. Even if it is assumed that she was not bound by decisions of the
League Council to which she did not agree and that she could prevent any
such decision from coming into force, can it not be said that she is not [p115] bound or not fully bound by the decisions of the General Assembly for
the simple reason that these are not binding or not fully binding ? If the
Court were to accept that argument, it would have to reject the assertion
that Rule F implies a degree of supervision in excess of that obtaining
under the System of Mandates. There would be such excess of supervision if
the decision of the General Assembly reached by a two-thirds majority had
the same legal and binding force as unanimous resolutions of the Council of
the League of Nations. On the other hand, if the position is in fact that,
while the supervision by the General Assembly exceeds that of the Council of
the League of Nations inasmuch as it is exercised by a majority vote of
two-thirds and thus deprived of the safeguards of unanimity, it is at the
same time less exacting inasmuch as it is exercised by means of decisions of
a character less binding than those of the Council of the League of
Nations—if that is the position, can it not be fairly held that there is
established a rough equivalence of supervision which brings Rule F within
the terms of the ruling of the Court in its Advisory Opinion rendered in
1950 ? My view is that that contention is fully relevant to the present case
and that it is substantially correct.
Although decisions of the General Assembly are endowed with full legal
effect in some spheres of the activity of the United Nations and with
limited legal effect in other spheres, it may be said, by way of a broad
generalisation, that they are not legally binding upon the Members of the
United Nations. In some matters—such as the election of the
Secretary-General, election of members of the Economic and Social Council
and of some members of the Trusteeship Council, the adoption of rules of
procedure, admission to, suspension from and termination of membership, and
approval of the budget and the apportionment of expenses—the full legal
effects of the Resolutions of the General Assembly are undeniable. But, in
general, they are in the nature of recommendations and it is in the nature
of recommendations that, although on proper occasions they provide a legal
authorization for Members determined to act upon them individually or
collectively, they do not create a legal obligation to comply with them.
This is so although Rule F and the General Assembly's request for the
present Opinion both refer to "decisions" which, in ordinary connotation,
signify binding expressions of will. In fact, the request of the General
Assembly and the special Rule F, in referring to "decisions", contemplate
decisions in their wider, somewhat non-technical, sense as used in Article
18 of the Charter of the United Nations. The intended reference is to
Resolutions generally, a generic term which, although it does not occur in
the Charter, has found an accepted place in the practice of the United
Nations. Now "resolutions" cover two distinct matters : They cover
occasionally decisions which have a definite binding effect either in [p115] relation to Members of the United Nations or its organs or both, or the
United Nations as a whole. But normally they refer to recommendations,
properly so called, whose legal effect, although not always altogether
absent, is more limited and approaching what, when taken in isolation,
appears to be no more than a moral obligation.
This, in principle, is also the position with respect to the recommendations
of the General Assembly in relation to the administration of trust
territories. The Trusteeship Agreements do not provide for a legal
obligation of the Administering Authority to comply with the decisions of
the organs of the United Nations in the matter of trusteeship. Thus there is
no legal obligation, on the part of the Administering Authority to give
effect to a recommendation of the General Assembly to adopt or depart from a
particular course of legislation or any particular administrative measure.
The legal obligation resting upon the Administering Authority is to
administer the Trust Territory in accordance with the principles of the
Charter and the provisions of the Trusteeship Agreement, but not necessarily
in accordance with any specific recommendation of the General Assembly or of
the Trusteeship Council. This is so as a matter both of existing law and of
sound principles of government. The Administering Authority, not the General
Assembly, bears the direct .responsibility for the welfare of the population
of the Trust Territory. There is no sufficient guarantee of the timeliness
and practicability of a particular recommendation made by a body acting
occasionally amidst a pressure of business, at times deprived of expert
advice and information, and not always able to foresee the consequences of a
particular measure in relation to the totality of legislation and
administration of the trust territory. Recommendations in the sphere of
trusteeship have been made by the General Assembly frequently and as a
matter of course. To suggest that any such particular recommendation is
binding in the sense that there is a legal obligation to put it into effect
is to run counter not only to the paramount rule that the General Assembly
has no legal power to legislate or bind its Members by way of
recommendations, but, for reasons stated, also to cogent considerations of
good government and administration.
In fact States administering Trust Territories have often asserted their
right not to accept recommendations of the General Assembly or of the
Trusteeship Council as approved by the General Assembly. That right has
never been seriously challenged. There are numerous examples of express
refusal on the part of the Administering Authority to comply with a
recommendation. This occurred, for instance, with regard to the
recommendation of the Trusteeship Council at its Third Session (A/603,
Official Records of the General [p117] Assembly, Third Session, Suppl. No.
4, p. 31) which considered that the existing tribal structure in Tanganyika
is an obstacle to the political and social advancement of the indigenous
inhabitants— a recommendation which the Administering Authority rejected on
the ground that "the great mass of the people everywhere are strongly
attached to their tribal institutions and in most cases offer strong
resistance to any suggestions of serious modification" (Report for 1948, p.
52). When the Trusteeship Council recommended that consideration be given to
the introduction of a system of universal suffrage applicable to all
inhabitants of Western Samoa (A/933, Official Records of the General
Assembly, Fourth Session, Supplement No. 4, p. 58) the Administering
Authority informed the Council that "it would be entirely wrong to force on
the Samoans any radical change in their customs since the introduction of
universal suffrage at this stage would be incompatible with that respect for
Samoan culture to which it and the Government of Western Samoa are equally
urged by the Trusteeship Council" (Document A/1903/ Add. 2, p. 9). When the
Trusteeship Council recommended in respect of Nauru that the long-term
royalty investment funds should not necessarily be limited to Australian
Government securities, but should be invested freely in the best interest of
the Nauruans, the Administering Authority explained why it was unable to act
upon the recommendation (A/933, Official Records of the General Assembly,
Fourth Session, Suppl. No. 4, p. 77, A/1306, Fifth Session, Suppl. No. 4, p.
134). When the Trusteeship Council recommended the reconsideration of the
head tax in the Pacific Islands, the Administering Authority explained why
in its opinion this was a satisfactory and desirable form of tax under the
economic and political conditions prevailing in the Trust Territory (S/1358,
p. 13 ; S/1628, p. 15 : Reports of the Trusteeship Council to the Security
Council).
***
I have elaborated at what may appear to be excessive length a point which
seems non-controversial, namely, that recommendations of the General
Assembly are not binding. I have done it by reference to recommendations
which are relevant to the issue now before the Court, namely, the
recommendations with respect to Trust Territories. They are so relevant
although, of course, the territory of South-West Africa is not a Trust
Territory. However, unless adequately explained and qualified, this
statement of the legal position is bound to be incomplete to the point of
being misleading. For reasons stated at the end of this Opinion, although I
am basing my answer to this question on the view that the decisions of the
General Assembly do not possess the same legal value [p118] as those of the
Council of the League, I consider it essential to explain and to qualify
this aspect of the present Separate Opinion. It is one thing to affirm the
somewhat obvious principle that the recommendations of the General Assembly
in the matter of trusteeship or otherwise addressed to the Members of the
United Nations are not legally binding upon them in the sense that full
effect must be given to them. It is another thing to give currency to the
view that they have no force at all whether legal or other and that
therefore they cannot be regarded as forming in any sense part of a legal
system of supervision.
In the first instance, not all the resolutions of the General Assembly in
the matter are in the form of recommendations addressed to the Administering
Authority. They are often, in form and in substance, directives addressed to
the organs of the United Nations such as the Trusteeship Council or the
Secretary-General. As such, they are endowed with legal validity and effect.
They are measures of supervision of a force comparable with the legal
effects of such acts of the General Assembly as the election of members of
the Trusteeship Council or the confirmation of the Trusteeship Agreements. A
survey of the resolutions passed by the General Assembly in the sphere of
trusteeship shows the frequency of this aspect of the supervisory function
of the General Assembly.
However, even in relation to the Administering Authority the question of the
effect of the decision of the General Assembly cannot accurately be answered
by the simple statement that they are not legally binding. In general it is
clear that as the General Assembly has no power of decision—as distinguished
from recommendation—imposing itself with binding force upon the substantive
action of the Member States, its Resolutions have per se no binding force in
relation to the Administering State. Thus that State is not bound to comply
with any specific Resolution recommending it to undertake or to abstain from
any particular legislative or administrative action. As stated, no
considerations of practical persuasiveness permit any different
interpretation of the existing law on the subject. I have referred to cases
in which the Administering Authority has expressly declined to act upon the
recommendation addressed to it. Its right to do so has never been
challenged. What has been challenged—and, I believe, properly challenged—is
its right simply to ignore the recommendations and to abstain from adducing
reasons for not putting them into effect or for not submitting them for
examination with the view to giving effect to them. What has been questioned
is the opinion that a recommendation is of no legal effect whatsoever. A
Resolution recommending to an Administering State a specific course of
action creates some legal obligation which, however rudimentary, elastic[p119] and imperfect, is nevertheless a legal obligation and constitutes a
measure of supervision. The State in question, while not bound to accept the
recommendation, is bound to give it due consideration in good faith. If,
having regard to its own ultimate responsibility for the good government of
the territory, it decides to disregard it, it is bound to explain the
reasons for its decision. These obligations appear intangible and almost
nominal when compared with the ultimate discretion of the Administering
Authority. They nevertheless constitute an obligation ; they have been
acknowledged as such by the Administering Authorities. This appears with
some clarity from the searching discussion at the Sixth General Assembly in
1952 which followed upon the presentation by the Secretary-General, in
pursuance of a previous recommendation of the General Assembly, of a series
of documents entitled Information on the Implementation of Trusteeship
Council and General Assembly Resolutions relating to Trust Territories
(Documents A/1903; A/1903/Add.1 ; A/1903/Add.2 ; October 1952. In Resolution
436 (V) of I December, 1950, the General Assembly requested the
Secretary-General to report to it on the measures taken by the Administering
Authorities to implement the Resolutions of the General Assembly and the
Trusteeship Council and if there had been no action on the part of an
Administering Authority in respect of any particular Resolution to set forth
the reasons given concerning that matter). While pointing to the
difficulties in the way of giving effect to some of the recommendations. and
while affirming their own final responsibility and their own right of
ultimate decision, various delegations of the Administering States made no
attempt to assert that these recommendations were bruta fulmina devoid of
any element of legal obligation. Thus at the Sixth General Assembly, in the
course of the debate of the Trusteeship Committee, the representative of the
United Kingdom stated as follows : "The United Kingdom considered that, in
cases where the Trusteeship Council and the General Assembly had adopted
Resolutions concerning the Trust Territories, they were perfectly entitled
to be informed of the decisions taken by the Administering Authorities in
regard to them." (245th Meeting of 12 January, 1952 ; Sixth General
Assembly, IVth Committee, p. 295.) Although, as stated, the Trusteeship
Agreements do not provide for a legal obligation of the Administering
Authority to comply with the decisions of an organ of the United Nations,
they are not in this respect devoid of an element of legal obligation. In
practically all of them the Administering Authority undertakes to
collaborate fully with the General Assembly and the Trusteeship Council in
the discharge of their functions, to facilitate periodic missions, and the
like. Such collaboration, which is a matter of legal duty, is initiated by
decisions of the organs of the United Nations. [p120]
Both principle and practice would thus appear to suggest that the discretion
which, in the sphere of the administration of Trust Territories or
territories assimilated thereto is vested in the Members of the United
Nations in respect of the Resolutions of the General Assembly, is not a
discretion tantamount to unrestricted freedom of action. It is a discretion
to be exercised in good faith. Undoubtedly, the degree of application of
good faith in the exercise of full discretion does not lend itself to rigid
legal appreciation. This fact does not destroy altogether the legal
relevance of the discretion thus to be exercised. This is particularly so in
relation to a succession of recommendations, on the same subject and with
regard to the same State, solemnly reaffirmed by the General Assembly.
Whatever may be the content of the recommendation and whatever may be the
nature and the circumstances of the majority by which it has been reached,
it is nevertheless a legal act of the principal organ of the United Nations
which Members of the United Nations are under a duty to treat with a degree
of respect appropriate to a Resolution of the General Assembly. The same
considerations apply to Resolutions in the sphere of territories
administrated by virtue of the principles of the System of Trusteeship.
Although there is no automatic obligation to accept fully a particular
recommendation or series of recommendations, there is a legal obligation to
act in good faith in accordance with the principles of the Charter and of
the System of Trusteeship. An administering State may not be acting
illegally by declining to act upon a recommendation or series of
recommendations on the same subject. But in doing so it acts at its peril
when a point is reached when the cumulative effect of the persistent
disregard of the articulate opinion of the Organization is such as to foster
the conviction that the State in question has become guilty of disloyalty to
the Principles and Purposes of the Charter. Thus an Administering State
which consistently sets itself above the solemnly and repeatedly expressed
judgment of the Organisation, in particular in proportion as that judgment
approximates to unanimity, may find that it has overstepped the
imperceptible line between impropriety and illegality, between discretion
and arbitrariness, between the exercise of the legal right to disregard the
recommendation and the abuse of that right, and that it has exposed itself
to consequences legitimately following as a legal sanction.
Moreover—and for similar reasons—even if the view is adopted that the effect
of a decision of the General Assembly is no greater than its moral force, a
decision thus conceived still constitutes a measure of supervision. A system
of supervision devoid of an element of legal obligation and legal sanction
can nevertheless provide a powerful degree of supervision because of the
moral force inherent [p121] in its findings and recommendations. It will be
noted—and the matter is not without significance—that the Advisory Opinion
of 1950 lays down not only that the new system must not add to the legal
obligations of South Africa; it says that the degree of supervision must not
exceed that obtaining under the League of Nations. The phrase "degree of
supervision" used in the Advisory Opinion of 1950 does not refer necessarily
or exclusively to supervision exercised by means of legally binding or
enforceable pronouncements. Moral reprobation following upon non-compliance
with a valid recommendation adopted in conformity with the Charter may
provide a means of supervision as potent or more potent than a legal
sanction.
This absence of a purely legal machinery and the reliance upon the moral
authority of the findings and the reports of the Mandates Commission were in
fact the essential feature of the supervision of the Mandates System. Public
opinion—and the resulting attitude of the Mandatory Powers—were influenced
not so much by the formal Resolutions of the Council and Assembly as by the
reports of the Mandates Commission which was the true organ of supervision.
In legal theory the Mandates Commission was no more than a subsidiary and
expert organ of the Council which received and approved its reports and
which occasionally softened their impact by the use of diplomatic language
intent upon not offending the susceptibilities of the Mandatory Power. The
Commission could not communicate directly with the Mandatory Powers and was
often reminded of the limitations of its authority. Its representatives who
appeared before the Council often acknowledged those limitations and
deprecated any intention of exceeding them. But it was a fact which was
generally recognized .and of which judicial notice must be taken that the
actual scrutiny of the conduct of the Mandatory Power rested with the
Mandates Commission. Yet no legal sanction was attached to non-compliance
with or disregard of the recommendations, the hopes and the regrets of the
Commission. The legal sanction of the judicial supervision by the Permanent
Court of International Justice, although forming part of all Mandates, was
never invoked. The occasional public and detailed discussions before the
General Assembly and the Council, which influenced powerfully public opinion
and the conduct of the Mandatory, were in pursuance of the reports of the
Mandates Commission.
There are two reasons why I have considered it essential to elaborate the
point—which in a sense seems to put in doubt the grounds of my own final
conclusion—that decisions of the General [p122]Assembly in the matter of
territories administered under the principles of trusteeship have, after
all, some legal and certainly some moral effect and that they may therefore
be regarded as a factor in the legal system of supervision in which the
system of voting is relevant:
In the first instance, the preceding observations show that I have not
reached the final conclusion without some hesitation and without having
fully weighed the correctness of an opposite conclusion, which is that
although the decisions of the General Assembly have no full legal effect
they are nevertheless a weighty factor in the system of supervision and that
therefore the procedure of the voting by which they are reached is decisive
for the purpose of the Opinion of the Court.
The second reason is that, after full allowance has been made for the
necessity of stating what is the inexorable legal position resulting from
the very nature of "recommendations", it is not admissible to give currency
to an interpretation, without qualifying it in all requisite detail, which
gratuitously weakens the effectiveness of the Charter. It would be wholly
inconsistent with sound principles of interpretation as well as with highest
international interest, which can never be legally irrelevant, to reduce the
value of the Resolutions of the General Assembly—one of the principal
instrumentalities of the formation of the collective will and judgment of
the community of nations represented by the United Nations—and to treat
them, for the purpose of this Opinion and otherwise, as nominal,
insignificant and having no claim to influence the conduct of the Members.
International interest demands that no judicial support, however indirect,
be given to any such conception of the Resolutions of the General Assembly
as being of no consequence.
These considerations, as well as actual practice, prevent me from basing my
conclusion on the proposition that the decisions of the General Assembly
have no binding effect at all. However, there is no escape from the fact
that they are of a legal potency lower than that implicit in the Resolutions
of the Council of the League. To that fact I must attach decisive
importance. It is unreasonable to claim that decisions of distinctly more
limited legal value than that inherent in the decisions of the Council of
the League of Nations must be reached by the same exacting and rigid system
of voting. The fact that some resolutions of the General Assembly in the
matter of trusteeship and elsewhere have a definite legal effect does not
alter decisively the normal situation. This being so, I come to the
conclusion, with regard to Question 3, that Rule F constitutes a correct
interpretation of the Opinion of the Court given in 1950. [p123]
***
Accordingly, while I have reached the final result on grounds different from
those underlying the Opinion of the Court, I concur in its operative part
for the reason :
(1) that, in so far as the doubts as to the correctness of Rule F were
prompted by the contention that the vote of the General Assembly on reports
and petitions from South Africa is subject to the rule of absolute unanimity
on the ground that this was the rule obtaining in the Council of the League
of Nations, there is doubt whether such rule can correctly be held to have
been in actual operation at the time of the dissolution of the League in the
Council of the League acting as the supervisory organ of the Mandates System
;
(2) that, in so far as it is contended that the vote of the General Assembly
on these questions might be subject to some other procedure of voting more
exacting than a two-thirds majority, though falling short of absolute
unanimity, Rule F is nevertheless in accordance with a correct
interpretation of the Opinion of the Court given in 1950. This is so for the
reason that the decisions of the General Assembly in the meaning of Rule F
do not possess a degree of legal authority equal to that of the decisions of
the Council of the League of Nations. In view of this, although adopted
through a less stringent voting procedure, they cannot be held to involve a
degree of supervision exceeding that which obtained under the Mandates
System. These considerations would also apply if, contrary to the conclusion
(1), it could be held that the decisions of the Council of the League on the
subject required absolute unanimity.
(Signed) H. Lauterpacht. |
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