1 June 1956

 

General List No. 31

 
     

international Court of Justice

     
     
     

Admissibility of Hearings by the Committee on South West Africa

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE: President: Hackworth;
Vice-President: Badawi;
Judges: Basdevant, Winiarski, Klaestad, Read, Hsu Mo, Armand-Ugon, Kojevnikov, Sir Muhammad Zafrulla Khan, Sir Hersch Lauterpacht, Moreno Quintana, Cordova
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1956.06.01_admissibility_of_hearing.htm
   
Citation: Admissibility of Hearings by the Committee on South West Africa, Advisory Opinion, 1956 I.C.J. 23 (June 1)
 
     
 
 
     
 

[p23]

In the matter of the Admissibility of Hearings of Petitioners by the Committee on South West Africa,

The Court,

composed as above,

gives the following Advisory Opinion:

By a letter of December 19th, 1955, filed in the Registry on December 22nd, the Secretary-General of the United Nations informed the Court that, by a Resolution adopted on December 3rd, 1955, the General Assembly of the United Nations decided to request the Court to give an Advisory Opinion on the following question:

"Is it consistent with the advisory opinion of the International Court of Justice of 11 July 1950 for the Committee on South West Africa, established by General Assembly resolution 749 A (VIII) of 28 November 1953, to grant oral hearings to petitioners on matters relating to the Territory of South West Africa?"

The Secretary-General enclosed with that letter a certified true copy of the Resolution which may be referred to as Resolution 942 A (X) and which is in the following terms :

"The General Assembly,

Having been requested by the Committee on South West Africa to decide whether or not the oral hearing of petitioners on matters relating to the Territory of South West Africa is admissible before that Committee (A/2913/Add.2),

Having instructed the Committee, in General Assembly resolution 749 A (VIII) of 28 November, 1953, to examine petitions as far as possible in accordance with the procedure of the former Mandates System,

Requests the International Court of Justice to give an advisory opinion on the following question:

'Is it consistent with the advisory opinion of the International Court of Justice of 11 July 1950 for the Committee on South West Africa, established by General Assembly resolution 749 A (VIII) of 28 November 1953, to grant oral hearings to petitioners on matters relating to the Territory of South West Africa?"'

In accordance with Article 66, paragraph 1, of the Statute, notice was given, on December 24th, 1955, 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.

In pursuance of paragraph 2 of the same Article, the President of the Court having considered that the States Members of the [p25] United Nations were likely to be able to furnish information on the questions referred to the Court, the Registrar notified these States, by letters of December 24th, 1955, 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 February 15th, 1956. The Governments of the United States of America and of the Republic of China availed themselves of this opportunity to submit written statements. The Government of India sent a letter stating that it did not consider it necessary to submit any written statement, in view of the fact that their views in the matter had already been indicated in the relevant records of the Tenth Session of the General Assembly of the United Nations.

The Secretary-General of the United Nations later transmitted to the Court the documents likely to throw light upon the question, together with an Introductory Note.

The written statements submitted to the Court were communicated to all States which had been notified on December 24th, 1955 in accordance with paragraph 2 of Article 66 of the Statute. These States were also informed that the Court would be prepared to hear oral statements on March 15th, 1956. This date was later changed to March 22nd, 1956, and a public hearing was held on that date when the Court heard the Rt. Hon. Sir Reginald Manningham-Buller, Q.C., M.P., Attorney-General, representing the Government of the United Kingdom of Great Britain and Northern Ireland.

***

It is necessary at the outset to indicate the Court's understanding of the question submitted for its opinion. The Court understands that the expression "grant oral hearings to petitioners" relates to persons who have submitted written petitions to the Committee on South West Africa in conformity with its Rules of Procedure.

A question arises as to whether the request for the Court's Opinion relates to the authority of the Committee on South West Africa to grant oral hearings in its own right or only under prior authorization of the General Assembly.

The General Assembly having accepted the Court's Advisory Opinion of 11 July 1950, proceeded to establish, by Resolution 749 A (VIII), referred to in the request for the Opinion of the Court contained in Resolution 942 A (X), a subsidiary organ which, inter alia, was to "examine ... such information and documentation as may be available in respect of the Territory of South West Africa", to "examine ... reports and petitions which may be submitted to the Committee or to the Secretary-General", and to "transmit to the General Assembly a report concerning conditions in the Territory...". This organ is the Committee on South West Africa referred to in the question submitted to the Court for its [p26] opinion. Its functions are analogous to those of the Permanent Mandates Commission established by the Council of the League of Nations, pursuant to paragraph 9 of Article 22 of the Covenant.

It appears from Resolution 749 A (VIII) that the Mandatory was refusing to assist in the implementation of the Advisory Opinion of the Court and to co-operate with the United Nations concerning the submission of reports and the transmission of petitions in accordance with the procedure of the Mandates System. As the Mandatory continued in its refusal to co-operate, the Committee found itself handicapped in the examination of petitions. It lacked both the Mandatory's comments on the petitions and the supplementary information which the Mandatory might have been expected to supply to the Committee directly or through its accredited representative. These were the circumstances prevailing at the time that the Committee requested the General Assembly to decide whether or not the oral hearing of petitioners by the Committee would be admissible.

Before deciding whether the Committee should or should not be authorized to grant oral hearings, the General Assembly deemed it advisable to obtain the Opinion of the Court on the question whether the grant of oral hearings by the Committee on South West Africa would be consistent with the Advisory Opinion of the Court of 11 July 1950.

It was in these circumstances that the question was submitted to the Court. While the question in terms refers to the grant of oral hearings by the Committee, the Court interprets it as meaning: whether it is legally open to the General Assembly to authorize the Committee to grant oral hearings to petitioners. The Court must therefore deal with the broader question as to whether it would be consistent with its previous Opinion of 11 July 1950 for the General Assembly to authorize the Committee on South West Africa to grant oral hearings to petitioners.

**

The meaning of the question having been thus defined, the Court will proceed to its examination.

In the operative part of the Advisory Opinion of 11 July 1950, the Court stated:

"that South-West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th, 1920;
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 [p27] 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;"

Accordingly, the obligations of the Mandatory continue unimpaired with this difference, that the supervisory functions exercised by the Council of the League of Nations are now to be exercised by the United Nations. The organ of the United Nations exercising these supervisory functions, that is, the General Assembly, is legally qualified to carry out an effective and adequate supervision of the administration of the Mandated Territory, as was the Council of the League.

In determining the question whether in these circumstances it would be consistent with the Opinion of the Court of 11 July 1950 for the Committee on South West Africa to grant oral hearings to petitioners, the Court must have regard to the whole of its previous Opinion and its general purport and meaning.

In that Opinion the Court, having concluded that South West Africa is a territory under the international Mandate and that the Mandatory continues to have the obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate, as well as the obligation to transmit reports and petitions and to submit to the supervision of the General Assembly, made it clear that the obligations of the Mandatory were those which obtained under the Mandates System. These obligations could not be extended beyond those to which the Mandatory had been subject by virtue of the provisions of Article 22 of the Covenant and of the Mandate for South West Africa under the Mandates System. The Court stated, therefore, that the degree of supervision to be exercised by the General Assembly should not exceed that which applied under the Mandates System. Following its finding regarding the substitution of the General Assembly of the United Nations for the Council of the League of Nations in the exercise of supervision, the Court stated that the degree of supervision should conform as far as possible to the procedure followed by the Council of the League of Nations in that respect. The Court observed that these considerations were particularly applicable to annual reports and petitions.

At the same time the Court stated that "the effective performance of the sacred trust of civilization by the Mandatory Powers required that the administration of mandated territories should be subject to international supervision" and said: "The necessity for supervision continues to exist despite the disappearance of the supervisory organ under the Mandates System."

In discussing the effect of Article 80 (1) of the Charter, preserving the rights of States and peoples under existing international agreements, the Court observed: "The purpose must have been [p28] to provide a real protection for those rights,; but no such rights of the peoples could be effectively safeguarded without international supervision and a duty to render reports to a supervisory organ."

The general purport and meaning of the Opinion of the Court of 11 July 1950 is that the paramount purpose underlying the taking over by the General Assembly of the United Nations of the supervisory functions in respect of the Mandate for South West Africa formerly exercised by the Council of the League of Nations was to safeguard the sacred trust of civilization through the maintenance of effective international supervision of the administration of the Mandated Territory.

Accordingly, in interpreting any particular sentences in the Opinion of the Court of 11 July 1950, it is not permissible, in the absence of express words to the contrary, to attribute to them a meaning which would not be in conformity with this paramount purpose or with the operative part of that Opinion.

***

Before proceeding further, it is necessary to refer briefly to the way in which the question of the grant of oral hearings to petitioners was dealt with during the regime of the League of Nations. The Permanent Mandates Commission had under consideration at various meetings the question of the grant of oral hearings to petitioners, both at the request of petitioners and on its own initiative. The Commission felt that in some cases oral hearings would be useful, if not indispensable, in determining whether petitions were well-founded or not. In 1926, the Commission laid the matter before the Council, but refrained from making a definite recommendation on the subject. The Council, in turn, decided that, before taking action, it should consult the Mandatory Powers. After obtaining the views of those Powers, all of whom were opposed to the grant of oral hearings on various grounds, the Council, by Resolution of March 7, 1927, decided that there was no occasion to modify the procedure theretofore followed by the Commission in regard to the question. In his Report to the Council, the Rapporteur stated that, if in any particular case the circumstances should show that it was impossible for all the necessary information to be secured by the usual means, the Council could "decide on such exceptional procedure as might seem appropriate and necessary in the particular circumstances". By its Resolution, the Council directed that copies of the Resolution, of the Report of the Rapporteur and of the replies of the Mandatory Powers, should be transmitted to the Permanent Mandates Commission. It is clear that oral hearings were not granted to petitioners by the Permanent Mandates Commission at any time during the regime of the League of Nations. [p29]

The right of petition was introduced into the Mandates System by the Council of the League on January 31st, 1923, and certain rules relating to the matter were prescribed. This was an innovation designed to render the supervisory function of the Council more effective. The Council having established the right of petition, and regulated the manner of its exercise, was, in the opinion of the Court, competent to authorize the Permanent Mandates Commission to grant oral hearings to petitioners, had it seen fit to do so.

***

It has been contended that the Court, in its Opinion of 11 July 1950, intended to express the view that the Mandates System and the degree of supervision to be exercised by the General Assembly in respect of the Territory of South West Africa must be deemed to have been crystallized, so that, though the General Assembly replaced the Council of the League as the supervisory organ in respect of the Mandate, it could not, in the exercise of its supervisory functions, do anything which the Council had not actually done, even if it had authority to do it. The Court does not consider that its Opinion of n July 1950 supports this position.

There is nothing in the Charter of the United Nations, the Covenant of the League, or the Resolution of the Assembly of the League of April 18th, 1946, relied upon by the Court in its Opinion of 1950, that can be construed as in any way restricting the authority of the General Assembly to less than that which was conferred upon the Council by the Covenant and the Mandate; nor does the Court find any justification for assuming that the taking over by the General Assembly of the supervisory authority formerly exercised by the Council of the League had the effect of crystallizing the Mandates System at the point which it had reached in 1946.

The Court having determined that the General Assembly had replaced the Council of the League as the supervisory organ, it was proper for it to point out that the General Assembly could not enlarge its authority but must confine itself to the exercise of such authority as the Mandates System had conferred upon the supervisory organ. The Court was not called upon to determine whether the General Assembly could or could not exercise powers which the Council of the League had possessed but for the exercise of which no occasion had arisen.

The Court held that the obligations of the Mandatory under the Mandate continued unimpaired, and that the supervisory functions in respect of the Mandate were exercisable by the United Nations, the General Assembly replacing in this respect the Council of the League. It followed that the General Assembly in carrying out its [p30] supervisory functions had the same authority as the Council. The scope of that authority could not be narrowed by the fact that the Assembly had replaced the Council as the supervisory organ.

Reliance has been placed upon the following sentence in the Court's Opinion of 1950:

"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."

It has been suggested that the grant of oral hearings by the Committee on South West Africa to petitioners would involve an excess in the degree of supervision to be exercised by the General Assembly and that the sentence should be interpreted as intended to restrict the activity of the General Assembly to measures which had actually been applied by the League of Nations. On these grounds it has been contended that the grant of oral hearings by the Committee would not be consistent with the Court's Opinion of 1950.

The Court will deal first with the suggestion that the grant of oral hearings to petitioners would, in fact, add to the obligations of the Mandatory and thus (lay?) upon it a heavier burden than it was subject to under the Mandates System. The Court is unable to accept this suggestion. The Committee on South West Africa at present receives petitions from the inhabitants of the Mandated Territory and proceeds to examine them without the benefit of the comments of the Mandatory or of the assistance of its accredited representative during the course of the examination. In many cases, the material available to the Committee from the petitions or from other sources may be sufficient to enable the Committee to form an opinion on the merits of the petitions. In other cases the Committee may not be able to come to a decision on the material available to it. If the Committee cannot have recourse to any further information for the purpose of testing whether a petition is or is not well-founded, it may lead in certain cases to acceptance of statements in the petitions without further test. Oral hearings in such cases might enable the Committee to submit its advice to the General Assembly with greater confidence. If as the result of the grant of oral hearings to petitioners in certain cases the Committee is put in a better position to judge the merits of petitions, this cannot be presumed to add to the burden of the Mandatory. It is in the interest of the Mandatory, as well as of the proper working of the Mandates System, that the exercise of supervision by the General Assembly should be based upon material which has been tested as far as possible, rather than upon material which has not been subjected to proper scrutiny either by or on behalf of the Mandatory, or by the Committee itself. [p31]

The Court will deal next with the suggestion that the statement "the degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System" should be interpreted as intended to restrict the activity of the General Assembly to measures which had actually been applied by the League of Nations. This could not have been the intention of the Court. Neither the Covenant of the League, nor the Mandate for South West Africa, nor the Charter of the United Nations, contains any provision which could justify such a restriction. That it cannot have been the intention of the Court to impose on the General Assembly a rigid limitation on its supervisory function is evidenced by the second part of the same sentence, according to which the degree of supervision "should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations". With regard to this statement, the Court said in its Opinion of 1955:

"When the Court stated in its previous Opinion that in exercising its supervisory functions the General Assembly should conform '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 was 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."

***

The Court notes that, under the compulsion of practical considerations arising out of the lack of co-operation by the Mandatory, the Comittee on South West Africa provided by Rule XXVI of its Rules of Procedure an alternative procedure for the receipt and treatment of petitions. This Rule became necessary because the Mandatory had refused to transmit to the General Assembly petitions by the inhabitants of the Territory, thus rendering inoperative provisions in the Rules concerning petitions and directly affecting the ability of the General Assembly to exercise an effec-tive supervision. This Rule enabled the Committee on South West Africa to receive and deal with petitions notwithstanding that they had not been transmitted by the Mandatory and involved a departure in this respect from the procedure prescribed by the Council of the League.

The particular question which has been submitted to the Court arose out of a situation in which the Mandatory has maintained its refusal to assist in giving effect to the Opinion of 11 July 1950. and to co-operate with the United Nations by the submission of [p32] reports, and by the transmission of petitions in conformity with the procedure of the Mandates System. This sort of situation was provided for by the statement in the Court's Opinion of 1950 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".

***

The Court holds that it would not bé inconsistent with its Opinion of 11 July 1950 for the General Assembly to authorize a procedure for the grant of oral hearings by the Committee on South West Africa to petitioners who had already submitted written petitions: provided that the General Assembly was satisfied that such a course was necessary for the maintenance of effective inter-national supervision of the administration of the Mandated Territory.

For these reasons,

The Court is of opinion,
by eight votes to five,

that the grant of oral hearings to petitioners by the Committee on South West Africa would be consistent with the Advisory Opinion of the Court of 11 July 1950.

Done in English and French, the English text being authoratitive, at The Peace Palace, The Hague, this first day of June; one thousand nine hundred and fifty-six, 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. Hackworth,
President.

(Signed) J. López Olivan,
Registrar. [p33]


Judge Winiarski, while voting in favour of the Opinion of the Court, makes the following declaration:

I regret that I am unable to accept the whole of the reasoning on which the Court has based its reply. In particular I think that as the Opinion of 1950 was not based on the idea of the United Nations as a successor in title of the League of Nations, the question of a devolution of the powers of the Council of the League of Nations to the General Assembly does not arise. I am in agreement with the minority opinion in considering that the whole structure of the Opinion of 1950 was founded on the objective elements of the situation which arose as a result of the disappearance of the League of Nations, and that that Opinion found in the General Assembly the organ qualified to exercise those functions which could not be allowed to go by default.

I also believe that the maintenance of the previously existing situation constitutes the dominant theme of the Opinion and that the decisive test is to be found in what was formerly done, and I therefore think that any enquiry as to the extent of the powers of the Council and of the General Assembly respectively is pointless. The powers of the supervisory organ, which are determined by the continuing obligations of the mandatory Power, are at the same time duties, and it is quite natural that, conscious of its responsibilities, the General Assembly should have put to the Court the question relating thereto.

I agree with the Court in considering that, though drafted in absolute terms, the question is to be understood as relating to the actual situation existing and I hesitate to reply to it as though this situation were normal, that is to say, as if the Mandatory were discharging its undertakings as it did under the regime of the League of Nations; the raison d'etre of the question cannot be ignored. If then, in these circumstances, the General Assembly, in order to secure further information, grants a hearing to a petitioner, its decision cannot be held to be irregular. If, on the same basis, it should authorize the Committee, which is its organ, to grant a hearing in a particular case in its stead, I should be unable to regard such a decision, which is one for the Assembly, as conflicting with the Opinion of 1950; if, in the same circumstances, it deemed it necessary to authorize the Committee to undertake such hearings, that, while not in accordance with the former practice, would be justified if warranted by imperative considerations and if kept within reasonable limits and governed by the rule of good faith.

Judge Kojevnikov, while voting in favour of the Opinion of the Court, makes the following declaration:

While accepting the operative clause of the Advisory Opinion, I am unable to concur in certain respects with the reasoning, in [p34] particular with that part which would attribute to the Opinion a limited and conditional character, for I am of opinion that petitions may be in writing or oral, or both in writing and oral, that hearings granted to petitioners by the Committee on South West Africa are consistent with the Advisory Opinion of the Court of July nth, 1950, and that the presentation even of oral petitions is one of the indefeasible rights of the population of the Territory of South West Africa, rights which accrue from the Covenant of the League of Nations, and still more from the Charter of the United Nations, in conformity with which this Territory should be included in the Trusteeship System of the United Nations.

Judge Sir Hersch Lauterpacht, availing himself of the right conferred on him by Articles 57 and 68 of the Statute, appends to the Opinion of the Court a statement of his separate Opinion.

Vice-President Badawi and Judges Basdevant, Hsu Mo, Armand-Ugon and Moreno Quintana, availing themselves of the right conferred on them by Articles 57 and 68 of the Statute, append to the Opinion of the Court the joint statement of their dissenting Opinion, to which is attached a declaration by Vice-President Badawi;

(Initialled) G. H. H.

(Initialled) J. L. O. [p35]


SEPARATE OPINION OF SIR HERSCH LAUTERPACHT

While I am in general agreement with the Opinion of the Court, I have concurred in it subject to reservations both with regard to the scope of the operative part of the Opinion and the reasons adduced in support of it. Moreover, I feel it my duty to elaborate in more detail certain questions relating to the main problem confronting the Court.

I

There arises in the present case a preliminary issue which is to a large extent responsible for the division of the Court and which is connected in a significant manner with the exercise of its advisory function.

The request for the present Advisory Opinion of the Court is stated in apparently general terms. It runs as follows: "Is it consistent with the Advisory Opinion of the International Court of Justice of n July 1950 for the Committee on South West Africa, established by General Assembly Resolution 749 A (VIII) of 28 November 1953, to grant oral hearings to petitioners on matters relating to the territory of South West Africa?" Thus put, the question does" not seem to refer to any specific situation. In view of this, it has been suggested—a suggestion to which the Court, rightly in my view, has declined to accede—that the reply of the Court must be of a general character unrelated to the events and providing no answer to the difficulty which underlay the request for the Opinion. Yet it is clear from the documents transmitted to the Court by the Secretary-General that in asking the Court for an Opinion on the question whether oral hearings of petitioners on matters relating to the territory of South West Africa are consistent with the Opinion of the Court of 11 July 1950, the General Assembly was referring not to this question in general but to one aspect of that question as it results from a particular situation. The gist of that situation is that, while the General Assembly has with practical unanimity approved the Opinion of the Court of 11 July 1950, the Union of South Africa has declined to accept it as expressing the correct legal position and that it has refused to comply with its principal obligations in respect of the supervision of the legal regime of the mandated territory of South West Africa as ascertained by the Court in its Opinion of 11 July 1950. In particular, it has declined to provide the supervising authority with annual reports and to lend its assistance by forwarding, commenting upon, or participating in the examination of written petitions [p36] submitted to the Committee on South West Africa. It is on account of that situation that the Court has been requested to give the present Advisory Opinion. So far as I am aware, no suggestion has been made from any quarter that the Committee on South West Africa is or should be entitled to grant oral hearings even if the Union of South Africa fulfils her obligations as Mandatory in the matter of annual reports and petitions. It cannot be reasonably assumed that in framing its request the General Assembly intended no more than to obtain the confirmation of a proposition which has not been disputed and which is not at issue. The General Assembly could not have intended to confine the task of the Court to an academic exercise not requiring any notable display of judicial effort.

This being so, the Court cannot answer the question put to it without direct reference to a situation of which a complete picture is presented in the documents which have been sent to it by the Secretary-General and of which it must also otherwise take judicial notice. Moreover, that particular situation is set out in the very terms of the request for an Advisory Opinion. The request expressly refers to Resolution 749 A (VIII) of 28 November 1953 which, in its recitals, includes an account of the attitude adopted by the Union of South Africa. Even if the Court were to ignore the official documents, minutes and reports submitted to it by the Secretary-General, the wording of the request, in embodying Resolution 749 A (VIII), must be held to give, in considerable detail, a picture of the problem confronting the General Assembly. It is clear, therefore, that there is no warrant in the present case for extracting from the wording of the request for the Opinion of the Court all possible element of generality and abstraction with the object of producing an answer which is entirely academic in character.

There occurs in the Advisory Opinion of 28 May 1948 on the Conditions of Admission of a State to Membership in the United Nations a passage which, when read in isolation, seems to give support to a view contrary to that here advanced. In that case the Court said: "It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it ; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases' or to particular circumstances." (I. C. J. Reports 1947-1948, p. 61.) That passage seems to lend colour to the suggestion that the Court ought also in the present case to answer the question put to it without reference to the circumstances which prompted the General Assembly to make the request. However, on reading the relevant paragraph as a whole it is clear that the passage quoted is not germane to the present issue. The Court was on that occasion concerned with the objection that "the question put [to it] must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the Court". The Court rejected that contention on the ground that it "cannot attribute a [p37] political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision" and that "it is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which took place in that body". There followed the sentence quoted at the beginning, of this paragraph. It will thus be seen from this bare recital that the passage in question is not relevant to the issue now before the Court.

At the same time, while I am in agreement with the present Opinion of the Court as to this aspect of the matter, I do not consider that the question put to it by the General Assembly can accurately be answered by way of a simple affirmative. The difficulty arises from the fact that the General Assembly, although actually desirous of an answer of the Court bearing upon a specific situation, cast its request in an apparently general form unrelated to that situation. This being so, a bare affirmative answer does not seem to me to meet the exigencies of the case. It is a matter of common experience that a mere affirmation or a mere denial of a question does not necessarily result in a close approximation to truth. The previous practice of the Court supplies authority for the proposition that the Court enjoys considerable latitude in construing the question put to it or in formulating its answer in such a manner as to make its advisory function effective and useful. Thus, for instance, in the Jaworzina. case (Series B, No. 8, p. 50) the Court amplified the question sub-mitted to the Court. Although the request for an Advisory Opinion in that case seemed to be confined to the frontier region of Spisz, the Court came to the conclusion that it must express an opinion on the other parts of the frontier in so far as the delimitation of the frontiers in the entire region may be interdependent. In the case concerning the Competence of the International Labour Organisation, it restated and limited the question put to it (Series B, No. 3, p. 59). In the Advisory Opinion on the Interpretation of the Greco- Turkish Agreement, the Court held that as the request for its Opinion did not state exactly the question upon which the Opinion was sought, "it is essential that it should determine what this question is and formulate an exact statement of it" (Series B, No. 16, p. 14). In the field of the contentious procedure the previous jurisprudence of the Court as formulated in its Judgment No. 11 on the Interpretation of Judgments Nos. 7 & 8 (pp. 15, 16) contains authority for the proposition that the Court, for the purpose of the interpretation of its Judgments —a matter of some importance for the purposes of the present Advisory Opinion designed to interpret a previous Opinion—does not consider itself as bound simply to reply "yes" or "no" to the propositions formulated by the parties and that "it cannot be bound by formulae chosen by the Parties concerned, but must be able to take an unhampered decision". [p38]

Undoubtedly it is desirable that the request for an Advisory Opinion should not, through excess of brevity, make it necessary for the Court to go outside the question as formulated. Reference may be made in this connection to suggestions bearing upon possible developments in the procedure followed by the General Assembly in making requests for an Advisory Opinion of the Court (see Sir Gerald Fitzmaurice in Transactions of Grotius Society, 38 (1952), p. 139). However, the absence of the requisite degree of precision or elaboration in the wording of the request does not absolve the Court of the duty to give an effective and accurate answer in conformity with the true purpose of its advisory function. For these reasons I consider that, having regard to the apparently general form in which the request for the Opinion is framed, the Opinion of the Court in the present case could not properly be couched in terms of "yes" or "no" but ought to have been given in relation both to the specific situation underlying the request for the Advisory Opinion and to the powers of the Committee on South West Africa irrespective of that situation. An answer which concentrates on only one of these two aspects may well be such as either to ignore the true issue before the Court or to open the other for yet another interpretative Opinion.

It may be convenient if, in order to illustrate the above aspect of the present Separate Opinion, I reverse the customary order and give my own version as to what ought to be the answer of the Court in the present case:

(1) It may or may not be consistent with the Advisory Opinion of 11 July 1950 for the Committee on South West Africa to grant oral hearings to petitioners on matters relating to the territory of South West Africa.

(2) In circumstances in which there is present the requisite cooperation on the part of the Mandatory complying with his obligation to send reports and transmit petitions to the supervising authority as envisaged in the Opinion of n July 1950, it is not consistent with that Opinion to grant oral hearings to petitioners.

(3) It is consistent with the Advisory Opinion of 11 July 1950 for the Committee on South West Africa to grant oral hearings to petitioners from that territory whenever, and so long as, owing to the absence of such co-operation on the part of the Mandatory, the Committee feels constrained, in order to fulfil the duty entrusted to it by the General Assembly, to use sources of information other than those which would be normally available to it if the Mandatory were willing to assist the Committee in obtaining information in accordance with the procedure as it existed under the League of Nations. [p39]

It will be seen that on the main issue, as formulated under (3), my view is substantially identical with that of the operative part of the Opinion of the Court. I differ from it inasmuch, in consequence of the generality of its answer, the latter may be interpreted as meaning that the Committee on South West Africa is entitled to grant oral hearings even if there is present the neces-sary co-operation on the part of the Union of South Africa. Any such finding would, in my view, be unwarranted and inconsistent with the Opinion of 11 July 1950.

II

I now propose to examine the main substantive question which is relevant to the answer of the Court, namely, whether oral hearings are consistent with that qualifying clause of its Opinion of 11 July 1950 which laid down 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". That qualifying clause was in the nature of an elaboration—a necessary elaboration—of the governing consideration which underlay that Opinion, namely, that in the absence of a new arrangement agreed to by the Union of South Africa her obligations and her position in the matter of supervision were, in principle, to continue unaltered. No other object can properly be attributed to that qualifying clause. In particular, no intention can reasonably be imputed to the Court to crystallize in absolute terms and in every detail the degree of supervision and the procedure obtaining under the Mandates System. The object was to preserve the degree and the procedure of supervision not as an end in itself or because of any immutable virtue inherent in it, but merely as a means of obviating an extension or diminution of the obligations of the Union of South Africa as a Mandatory. If, as I believe to be the case, the grant of oral hearings does not, upon examination of the entire position ensuing from the attitude of the Union of South Africa, result in any addition to its obligations, then the issue of crystallizing the degree and procedure of supervision cannot properly be deemed to arise.

So far as the language of the above-mentioned qualifying clause is concerned, I have come to the conclusion that normally, i.e., so long as there are available the regular sources of information through annual reports and petitions transmitted by the Union of South Africa in accordance with the Opinion of 11 July 1950, the grant of oral hearings to petitioners would exceed the degree of supervision which applied during the Mandates System and that it would not conform to the procedure followed in this respect, i.e., in the matter of supervision, by the Council of the League of Nations. [p40]

Obtaining of information through oral hearings results in a degree of supervision more stringent than that implied in the system of written petitions. Oral hearings were not permitted under the system applied by the Council of the League of Nations. They were expressly disallowed by it on repeated occasions. As will be submitted later on, that attitude of the Council must be viewed in the light of the circumstances which explained its refusal to authorize oral hearings. However, these circumstances, although they are relevant to the more general issue now before the Court, do not alter the fact that oral hearings found no place in the procedure of supervision as applied under the Mandates System. I have little doubt that this would have been the answer—in the nature of a simple and obvious constatation—if that question had been asked during the existence of the League of Nations, at the time of its formal demise in 1946, or when the Advisory Opinion of the Court was given in 1950.

Neither have I found it possible to rely to any substantial extent on the view that although the Council of the League did not permit and that although it expressly rejected the procedure of oral hearings, it was entitled to grant oral hearings by virtue of its inherent powers in the matter of supervision and that these powers passed from the Council of the League of Nations to the General Assembly of the United Nations in conformity with the Opinion of the Court of 11 July 1950. Any devolution of powers in this respect could take place only subject to the governing rule as laid down in that Opinion, namely, that the degree of supervision by the General Assembly should not exceed that applied under the Mandates System. I find it difficult to accept as a substantial ground for the present Opinion of the Court an interpretation which construes that qualifying rule as referring not necessarily to the system which actually applied but to one which could or might have been applied in certain circumstances. The doctrine of implied powers of the Council might, if resorted to, render meaningless—to a large extent—the rule that there must be no excess of supervision. As the Council of the League, in the exercise of its alleged inherent powers, could introduce any means of supervision not patently inconsistent with the mandate, no means of supervision thus introduced by the General Assembly could conceivably be in excess of the supervision "applied" under the Mandates System. I cannot accept any such interpretation of the Advisory Opinion of 1950 which may go a long way towards reducing its principal qualifying provision to a mere form of words. The word "applied" in the qualifying passage, quoted above, of -the Opinion of 1950 means "actually" (and not "potentially") applied just as the words "procedure followed in this respect by the Council" mean the procedure as actually followed and not as it might have been followed. [p41]

It may also be borne in mind that there is a distinct element of unreality in relying, in this and in other matters, on the inherent powers of the Council of the League. Such powers, if any, were powers not of an ordinary legislature or executive proceeding by a majority vote. They were powers of a body acting under the rule of unanimity scrupulously observed. There was, as a matter of reasonable estimate, little prospect of the Council, which included the principal Mandatory Powers as its Members, decreeing by an unanimous vote the authorization of oral hearings which encountered the emphatic opposition of these Powers. There is accordingly no persuasive merit in the argument which relies on inherent powers whose exercise hung on the slender thread of unanimity in circumstances such as these.

***

While I am of the view that in normal circumstances the grant of oral hearings to petitioners would result in exceeding the degree of supervision as actually applied under the Mandates System and that it would not conform with the procedure followed in this respect by the Council of the League, I believe that both the excess and the departure are of limited compass. This fact, although it does not affect my answer to the more limited aspect of the question here examined, has a bearing upon what I consider to be the proper basis of the Opinion of the Court.

With regard to degree of supervision, it is difficult to deny that oral hearings, as compared with written petitions, result to some extent in exceeding the degree of supervision obtaining under the League of Nations. In so far as oral hearings accompanied by a detailed examination of petitioners add to the reality and the effectiveness of the scrutiny of the conduct of the administering authority—and it is difficult to deny that they do so—they increase the degree of supervision as compared with a system which knows of no oral hearings of petitioners. It has been suggested that as oral hearings may disclose the spurious or fraudulent nature of some petitions, such hearings are to the advantage of the Mandatory and that they do not therefore increase his obligations in the matter of supervision. This argument I find unconvincing. It assumes that fraudulent petitions are the rule, and not the exception.

Similar considerations apply to the question whether oral hearings constitute a departure from the procedure obtaining under the League of Nations. By and large, oral hearings before the Mandates Commission were not admissible under the procedure of the League of Stations and, in fact, they were never resorted to. On the face of it, recourse to oral hearings would therefore constitute a departure [p42] from the procedure of the Mandates Commission and the Council of the League of Nations.

***

Admittedly, the above findings ought to be qualified by reference to certain factors which suggest that the departure consisting in the admission of oral hearings is—although real—less radical than appears at first sight. In the first instance, although the Mandates Commission, in compliance with the attitude of the Council of the League, did not grant oral hearings, that practice was not expressive of its view of the usefulness and of the necessity, in some cases, of relying on that procedure. The record shows that the Mandates Commission felt itself free to approach the Council on future occasions with a view to obtaining a modification of its attitude. Secondly, although the Commission as such did not grant oral hearings, its members and its Chairman, in their individual capacity, did in fact grant oral hearings to petitioners in private interviews outside the meetings of the Commission. Although subsequently some fine psychological distinctions were made between the minds of the members of the Commission as influenced outside its meetings and as formed inside the Commission, the reality of that distinction is limited. Thirdly, the refusal of the Council of the League of Nations to authorize oral hearings did not bear any mark of finality. In stating repeatedly that there was no reason, on the occasions before it, to depart from the previous practice, the Council left the door open for a modification of its practice in exceptional circumstances. It is not certain to what extent such possible modifications included the admissibility of oral hearings. In the report accompanying the Resolution approved by the Council on the last occasion when it declined to authorize oral hearings, it was stated that if in any particular circumstances it should be impossible for all the necessary information to be secured with the assistance of the Mandatory Power, the Council could "decide on such exceptional procedure as might seem appropriate and necessary in the particular circumstances". (Report approved on 7th March 1927.) It is possible -—we cannot put it higher than that—that, having regard to the circumstances which brought about the Resolution, the Council, in referring to "such exceptional procedure", was referring to oral hearings. The particular situations, referred to in the Resolution, may fairly be assumed to arise when, owing to an attitude of total non co-operation on his part, no assistance whatsoever is forthcoming from the Mandatory. Fourthly, it appears from the replies which the Mandatory Powers gave in 1926 and in which they rejected the principle of oral hearings that one of the main reasons for their attitude was the assumption of the continuing co-operation and assistance on the part of the Mandatory. It is [p43] noteworthy that throughout the existence of the League of Nations there were no instances of a Mandatory Power refusing to supply information with regard to a complaint brought before the Mandates Commission. (In the case of the Bondelzwarts rebellion, which has been referred to as an instance of that nature, although the Government of South Africa refused to accept and comment on a report of a local commission of enquiry, the South African administrator of the territory in question was questioned at length by the Mandates Commission in the presence of the South African representative and submitted a detailed memorandum on the subject of the complaint (Permanent Mandates Commission, Minutes of Third Session, 1923).)

When, therefore, it is said that oral hearings did not exist under the League and that recourse to them by the Committee on South West Africa would be a departure from that practice, this state-ment—although strictly true—is a simplification of the situation. This is so not. only because the exclusion of the oral hearings was less rigid than cursory examination seems to indicate. This is so mainly because the exclusion of oral hearings was a practice adopted within the orbit of the normal operation of other aspects of the machinery of supervision. These have now ceased to operate in consequence of the attitude adopted by the Union of South Africa. To put it in different words, the departure from the legal procedure involved in the system of oral hearings is substantial only if viewed against the background of the situation as it obtained during the existence of the League when reports and petitions were regularly transmitted by the Mandatory. The departure is less drastic when viewed in the light of the cessation of that system as the result of the attitude of non co-operation as adopted by South Africa. For this reason there is no warrant for treating the practice under the League of Nations as being so unequivocal and decisive as to rule out all other factors of a legal or practical nature.

***

The above considerations do not decisively affect my answer to the general question whether oral hearings are consistent with the Court's Opinion of 1950. That question, when answered in the abstract —i.e., without reference to the existing situation underlying the request for the Advisory Opinion—must be answered in the negative. However, as already explained, it is not open to the Court to confine itself to an answer hi the abstract. For this reason these considerations are of some indirect importance for the specific question as to whether oral hearings are consistent with the Opinion of 1950 having regard to the actual situation in respect of the territory of South West Africa. [p44]

III

As stated, if the Court were not confronted with a situation created by the attitude of the Government of South Africa and if it were merely called upon to reply in the abstract to the question put to it, I would feel bound to answer that the grant of oral hearings-constitutes a sufficient addition to the degree of supervision and that it departs sufficiently from the procedure obtaining under the League of Nations to bring it within the two restrictive clauses, referred to above, of the Opinion of n July 1950. However, this is not the situation with which the Court is faced. The Court is now called upon to answer not an abstract question, but—primarily— the question as to the consistency of oral hearings with its Opinion of 11 July 1950 in a situation in which the two positive dispositions of that Opinion „for securing the international supervision of the Territory have become inoperative. These are the provisions, repeatedly affirmed in the Opinion, referring to the obligation of the Mandatory Power to submit annual reports and to transmit petitions from the inhabitants of the Mandated Territory. They are the basic provisions whose place as such must be kept in mind. For this reason any preoccupation with the two limitative clauses of the Opinion ought not to be allowed to overshadow its main purport. There has been a tendency to describe these limitative clauses as the basic provisions of the Opinion of 11 July 1950. Any such emphasis distorts that Opinion.

***

It is submitted that in answering the question put to it against the background of the fact that the two basic provisions of the operative part of its Opinion of 1950 are in abeyance owing to the attitude adopted by the Union of South Africa, the Court must be guided by established principles of interpretation and the applicable general principles of law.

In the first instance, in accordance with a recognized principle of interpretation, its Opinion of 11 July 1950 must, like any other legal text, be read as a whole. It must be read as a comprehensive pronouncement providing for the continuation of the administration and the continued supervision, by the United Nations, of the administration of South West Africa as a Mandated Territory. All other dispositions, injunctions and qualifications of the Opinion of 11 July 1950 must be regarded as subservient to that overriding purpose. The principal means for fulfilling that purpose—namely, annual reports supplied by the Mandatory and written petitions transmitted, commented upon and explained by him before the supervising body—which were in operation under the Mandates System [p45] are now in abeyance owing to the attitude adopted by the Union of South Africa. If the Opinion of n July 1950 is read as a whole, then it is impossible, without destroying its effect, to maintain fully and literally provisions qualifying the operation of a system whose main characteristics have become inoperative. It seems unreasonable to uphold fully and literally the limitations of a rule after the possibility of giving effect to the rule itself has disappeared. To do that is to elevate the exception into a rule and to reduce the governing rule to a nullity. A court of law cannot give its sanction to any such simplification of logic. Neither can it avoid its judicial duty by declaring that only a political or legislative body is competent to resolve the conflict which has arisen, as the result of the action of a party, between the overriding purpose of the instrument and its individual provisions and limitations. To resolve that conflict, in the light of the instrument as a whole, is an essential function of a judicial tribunal.

In particular, if we act on the principle that the Opinion of 11 July 1950 must be read and interpreted as a whole, then it is necessary to apply that principle to the interpretation of that clause of that Opinion which lays down that the degree of supervision must not exceed that obtaining under the Mandates System. That clause, properly interpreted, does not rigidly and automatically apply to each and every aspect of supervision. If, owing to the attitude of the Government of South Africa, the degree of supervision as applied under the Mandates System is in danger of being severely reduced with regard to the principal aspects of its operation, it is fully consistent with the Opinion of the Court of 11 July 1950 that in some respects that supervision should become more stringent provided that it can be said, in reason and in good faith, that the total effect is not such as to increase the degree of supervision as previously obtaining. It is in accordance with sound principles of interpretation that the Court should safeguard the operation of its Opinion of 11 July 1950 not merely with regard to its individual clauses but in relation to its major purpose. This is, in the present context, the meaning of the principle that that Opinion must be interpreted as a whole. The question is not whether the admission of oral hearings of petitioners implies an excess of supervision with regard to this particular means of supervision. The decisive question is whether, owing to the situation brought about by the Union of South Africa, oral hearings of petitioners would result in an excess of supervision as a whole. It may be admitted that the procedure of oral hearings of petitioners connotes in itself a degree of supervision of a stringency greater than that obtaining in the matter of petitions under the Mandates System. But if, as the result of the attitude of the Union of South Africa, the degree [p46] of supervision is substantially reduced in other respects, then the total effect of the departure here contemplated will not be such as to result in exceeding the degree of supervision as a whole. On the contrary, however effective oral hearings of petitioners may be, they are unlikely to restore to the procedure of supervision the effectiveness of which it is being deprived as the result of the attitude of non co-operation on the part of the Union of South Africa. Thus viewed, the authorization of oral hearings is no more than a specific application of the principle that a legal text must be interpreted as a whole.

***

The second principle of law of general import in the present case is connected with the nature of the regime of the territory of South West Africa as declared in the Opinion of n July 1950. Inasmuch as that Opinion laid down, by reference to the Covenant of the League of Nations and the Charter of the United Nations, the status of South West Africa—a regime in the nature of an objective law which is legally operative irrespective of the conduct of the Union of South Africa—that status must be given effect except in so far as its application is rendered impossible, in terms of its general purpose, having regard to the attitude adopted by the Union. To that extent there are permissible such modifications in its application as are necessary to maintain—but no more— the effectiveness of that status as contemplated in the Court's Opinion of 1950. It is a sound principle of law that whenever a legal instrument of continuing validity cannot be applied literally owing to the conduct of one of the parties, it must, without allowing that party to take advantage of its own conduct, be applied in a way approximating most closely to its primary object. To do that is to interpret and to give effect to the instrument-not to change it.

Consequently, there can be no question here of the Union of South Africa having been divested, owing to the attitude adopted by her, of any safeguards which the Opinion of n July 1950 provided in her interest as the Mandatory with the view to not increasing her obligations. No countenance can be given to the suggestion that, as the result of the attitude adopted by South Africa, the regime as established by that Opinion of the Court is liable to changes—except in pursuance of the principle that that regime as a whole must be and remain effective. The Opinion of 11 July 1950 has been accepted and approved by the General Assembly. Whatever may be its binding force as part of international law—a question upon which the Court need not express a view—it is the law recognized by the United Nations. It continues to be so although the Government of South Africa has declined to [p47] accept it as binding upon it and although it has acted in disregard of the international obligations as declared by the Court in that Opinion.
***

At the same time, and for the same reasons, in so far as the Opinion of 1950 is relied upon for the purpose of upholding literally all the safeguards and restrictions formulated in the interest of the Mandatory, it must, like any other legal instrument, be interpreted reasonably and in accordance with legal principle. The jurisprudence of the Court in the matter of treaties and otherwise provides by analogy some useful instruction in this respect. In the fifteenth Advisory Opinion on the Jurisdiction of the Courts of Danzig, the Court formulated the principle that a State cannot avail itself of an objection which would amount to relying on the non-fulfilment of an obligation imposed on it by an international engagement (Series B, No. 15, p. 27). It is not suggested that these principles are directly germane or applicable to the present case. For this is not the case of a treaty—although the Opinion of 11 July 1950 did no more than to formulate a regime resulting from two multilateral conventional instruments, namely, the Covenant of the League of Nations and the Charter of the United Nations. Neither do I suggest that this is technically a case of estoppel—though there is a measure of contradiction, reminiscent of situations underlying estoppel, in the fact that an instrument repudiated by a Government is being invoked for the benefit of that Government. (While the Government of South Africa did not participate in the present proceedings before the Court, in the Fourth Committee of the General Assembly of 1955 it opposed oral hearings in reliance on the Advisory Opinion of 11 July 1950 (Official Records, Fourth Committee, 500th Meeting, 8 November 1955, p. 182).) Finally, I do not attach any decisive importance to the possible submission that this is an instance of a Government claiming to benefit from its own wrong by declining to supply and transmit information which, according to the Opinion of 11 July 1950, it is legally bound to supply and transmit and at the same time resisting the contemplated effort to obtain alternative information. For it may not be easy to characterize pre-cisely in legal terms a situation in which South Africa declines to act on an Advisory Opinion which it was not legally bound to accept but which gave expression to the legal position as ascertained by the Court and as accepted by the General Assembly.

Nevertheless, the above considerations are not wholly extraneous to the case now before the Court. For these are not technical rules of the law of contract or treaties. They are rules of common sense [p48] and good faith. As such they are relevant to all legal instruments, of whatsoever description, inasmuch as their effect is not to permit a party which repudiates an instrument to rely literally on it—or have it invoked for its benefit—in a manner which renders the fulfilment of its purpose impossible. In particular, these principles are relevant to the question—which ought not to remain unanswered—as to the legal basis of a judicial decision which by way of interpretation substitutes a measure of supervision or an act of performance for one repudiated or frustrated by the party affected by the instrument in question. What, apart from the general principles of interpretation as set out above, is the authority for the proposition that the Court may replace one means of supervision by another, not previously authorized—nay, expressly disallowed? This, it may be objected, is not the way in which courts normally proceed in the matter of contracts between individuals (though in many countries courts, when confronted with a situation in which a substantive provision of the instrument governing succession is in danger of being frustrated owing to an obscurity of expression or an event subsequently arising, will vary the original disposition in such a way as to make it approximate so far as possible to the general intention of its author. It will be noted that the supervision by the United Nations of the mandate for South West Africa constitutes the most important example of succession in international organization).

However, this is not a case of a contract or even of an ordinary treaty analogous to a contract. As alreadv pointed out, this is a case of the operation and application of multilateral instruments, as interpreted by the Court in its Opinion of 11 July 1950, creating an international status—an international regime—transcending a mere contractual relation (I.C.J. Reports 1950, p. 132). The essence of such instruments is that their validity continues notwithstanding changes in the attitudes, or the status, or the very survival of individual parties or persons affected. Their continuing validity implies their continued operation and the resulting legitimacy of the means devised for that purpose by way of judicial interpretation and application of the original instrument. The unity and the operation of the regime created by them cannot be allowed to fail because of a breakdown or gap which may arise in consequence of an act of a party or otherwise. Thus viewed, the issue before the Court is potentially of wider import than the problem which has provided the occasion for the present Advisory Opinion. It is just because the regime established by them constitutes a unity that, in relation to instruments of this nature, the law—the existing law as judicially interpreted—finds means for removing a clog or filling a lacuna or adopting an alternative device in order to prevent a standstill of the entire system on account of a failure in any particular link or part. This is unlike the case of a breach of the [p49] provisions of an ordinary treaty—which breach creates, as a rule, a right for the injured party to denounce it and to claim damages. It is instructive in this connection that with regard to general texts of a law-making character or those providing for an international regime or administration the principle of separability of their provisions with a view to ensuring the continuous operation of the treaty as a whole has been increasingly recognized by international practice. The treaty as a whole does not terminate as the result of a breach of an individual clause. Neither is it necessarily rendered impotent and inoperative as the result of the action or inaction of one of the parties. It continues in being subject to adaptation to circumstances which have arisen.

IV

It is now necessary to enquire to what extent the situation with which the General Assembly—and the Court—are confronted call for and permit the application of the principles of law as here outlined. To what extent has the refusal of the Union of South Africa to submit annual reports and to transmit and comment on written petitions in conformity with the obligations established in the Opinion of 11 July 1950, created a gap so serious in the system there contemplated as—in conformity with these principles—to render legitimate alternative sources of information not exceeding the total degree of supervision envisaged in that Opinion? These principles are that the Opinion of 1950 must be read as a whole; that it cannot be deprived of its effect by the action of the State which has repudiated it ; and that the ensuring of the continued operation of the international regime in question is a legitimate object of the interpretative task of the Court.

Having regard to the non co-operation of the Mandatory, what is the position in the matter of the sources of information available to the supervising agency and indispensable for the proper working of the system of supervision and the implementing of the Opinion of the Court of 11 July 1950?
In the first instance, the annual report of the Mandatory, as provided by the Opinion of the Court of 1950 and as forming an integral part of the procedure of the League of Nations, has disappeared. It has been replaced by a conscientious and well-documented volume prepared by the Secretary-General and entitled "Information and Documentation in respect of the Territory of South West Africa" (such as in Doc. A/AC 73 L 3; Doc. A/AC 73/L 7). That volume provides, to a considerable extent, the substance of the report which the Committee on South West Africa submits to the General Assembly. But this is not a document in the same category as a report submitted by the Man-[p50]datory and explained by it point by point, if necessary, at the meetings of the Committee. The supervising authority is thus deprived of an authentic source of information which is one of the two main pillars of the system of supervision. There is a gap here and a resulting diminution of the degree of supervision as previously existing and as envisaged by the Court in its Opinion of 1950. It is consistent with that Opinion to interpret it in a manner which authorizes the filling of that gap—provided that the result is not to increase the total degree of supervision of the system as a whole.

The second main source of information which forms an important part of the system of supervision and to which the Opinion of the Court of 1950 refers in passages of particular emphasis are petitions sent by the inhabitants of the administered territory. Under the League of Nations only petitions in writing were admissible. These, when supplemented by the observations of the Mandatory and the explanations supplied by him in the course of the proceedings of the supervising organ, are a weighty instrument of supervision and an important factor in the formation of the judgment of the supervising authority. As the result of the attitude of non co-operation adopted by the Union of South Africa, the efficacy of that source has been substantially reduced. The Mandatory, who is absent from the meetings of the Committee, provides no comment of his own and does not assist the supervisory body by explanations supplied at its request during or subsequent to its meetings. Moreover, the Mandatory has declined to transmit petitions submitted by the inhabitants of the administered territory. If the procedure of the Mandates Commission were adhered to in this respect, it is difficult to see how written petitions from the inhabitants of the territory could come at all before the Committee on South West Africa. That Committee has now adopted a deliberate change in the procedure obtaining under the Mandates System. The rules of procedure as adopted in 1923 by the League of Nations provided that petitions by communities or sections of the population of mandated territories shall be sent to the Secretariat of the League through the mandatory governments concerned and that any petitions received by the Secretary-General of the League through any channel other than the mandatory government should be returned to the signatories with the request that they should re-submit the petitions in accor-dance with the above procedure. As the Government of South Africa has refused to transmit the petitions thus received, the Committee on South West Africa has provided in its Provisional Rules of Procedure—Rule 26—that on receipt of a petition the Secretary-General shall request the signatories to submit the petition to the Committee through the Government of South Africa but that if, after a period of two months, the petition has not been received through the Government of South Africa, the Com-[p51]mittee shall regard the petition as validly received. It is also provided that the Committee shall subsequently notify the Government of South Africa as to the conclusions it has reached on the petition. It does not appear that objection has been raised against that particular—and important—departure from the procedure obtaining under the Mandates System.

However, although thus made available to the supervising organ, the written petition no longer fulfils the same function and no longer partakes of the same effectiveness as written petitions examined in the presence and with the co-operation of the Mandatory. It is in the nature of ex parte information which may or may not be capable of verification. This does not mean that the written petition examined without the assistance of the Mandatory is without value or that it can never provide a basis for the conclusions of the supervising Committee. But it is clear that it is not the same thing as and that it is a lesser thing than written petitions within the framework of a machinery operating with the participation of the Mandatory.

***

The interpretation, in this matter, of the Opinion of the Court of 11 July 1950 is thus confronted with the fact that owing to the attitude of South Africa the potency of the two principal instruments of supervision is substantially reduced and that other means, not fundamentally inconsistent with that Opinion, must be found in order to give effect to its essential purpose. The crucial question which the Court has now to answer is: Are oral hearings one of these means? Are they truly necessary and effective for filling the gap that has arisen? Do they secure the reality of the task of supervision otherwise reduced below the level contemplated by and underlying the Opinion of 1950? I am of the view that, in the circumstances, they fulfil that purpose. Oral hearings contribute one of the tangible elements of supervision which otherwise—i.e., in the absence of other means of supervision—operates in an atmosphere of unreality. Undoubtedly, the information received through oral hearings may be exaggerated, false and misleading. Oral hearings may be abused by fanatics and seekers for self-advertisement. But these difficulties and dangers are also present, and less capable of correction, in the case of written petitions—especially when examined in the absence of the Mandatory. Moreover, it is clear that the importance of oral hearings increases in proportion as the effectiveness of the other instruments of supervision has been reduced as the result of the attitude of the Union of South Africa. If the United Nations were not confronted with the refusal of the Union of South Africa to abide by its obligations as a Mandatory in conformity with the Opinion of the Court of 1950 and if there remained, in their full effectiveness, the other instruments of supervision therein [p52] provided, then the advantages of oral hearings, considerable as they may be and though being, according to some, in keeping with the recognition within the United Nations of the right of oral hearing as a corollary of the fundamental right of petition, would be no more than an improvement on the existing machinery of supervision. They would not be essential to it. In fact, being in the nature of an excess of supervision as it existed under the League of Nations, they would be contrary, on that account, to the Opinion of 1950. But this is not the position with which the Court is confronted. The Court is not here called upon to express a view on the controversial question of the merits of oral hearings in general. The question before it is the necessity for oral hearings in a situation amounting to a substantial drying up of other sources of information.

There is therefore little force in the argument that, after all, oral hearings are not the only source of information. Admittedly, they are not. There are other sources. In particular, written petitions are still available. However, if the effectiveness of these available means has become drastically reduced owing to the attitude of the Mandatory, then it is open to the Committee on South West Africa, as a matter of effectiveness of the instrument which it has to apply, to fulfil that duty by other means.

It may be objected that oral hearings in the absence of the Mandatory are a procedure which amounts to passing of judgment in default upon that authority in its absence and that for that, if no other, reason it constitutes a particularly flagrant excess of supervision. But is that so? When the Committee on South West Africa examines written petitions in the absence of the Mandatory, that procedure may also be said to amount to passing of judgment by default. The Committee simply informs the Government of South Africa of its conclusions. But it has not been denied that the Committee is entitled to do so and that the rule of procedure which it has adopted for that purpose is in accordance with the Opinion of the Court of 11 July 1950. Moreover, when the supervising authority hears petitioners in person it has the opportunity of checking and verifying their statements by a direct and efficacious method which is not available when written petitions are examined in the absence of their authors.

This, then, is the principal question before the Court. Is the need for oral hearings real? If permitted, would they, in the situation before the Court, contribute to exceeding the total degree of supervision as circumscribed in the Opinion of the Court of 1950? For it is only under the following two conditions that oral hearings of petitioners can be held to be consistent with that Opinion: the need for them must be real in terms of implementing the two [p53] basic provisions of that Opinion of the Court; secondly, they must not add to the degree of supervision in such a way that in the aggregate it becomes more stringent than under the League of Nations. Oral hearings of petitioners would not be permissible if they were attempted not because of that real need but as an expression of the disapproval of the attitude of South Africa. Any such innovation implying that the Opinion of 1950 has lost its regulating and restraining force would not be permissible. The Opinion of IQSO is not a treaty whose provisions can be discarded for the reason that South Africa has declined to comply with them. It gives expression to an objective legal status recognized by the United Nations and it must be acted upon. But it must be acted upon in a reasonable—and not in a one-sided and literal—manner.

My conclusion is, therefore, that there is a true need for oral hearings in order to supplement sources of information which have become incomplete in consequence of the attitude of the Union of South Africa and that, if adopted, they would not result in exceeding the total degree of supervision as laid down in the Opinion of 11 July 1950. This being so, they must be held to be consistent with that Opinion. They would be so consistent even if the Opinion of 11 July 1950 were in absolute terms, namely, if it did not contain the qualification "as far as possible".

V

In view of the preceding observations I need only refer briefly to the second qualifying clause of the Opinion of 11 July 1950, namely, that "the degree of supervision ... should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations". The expression "as far as possible" is a form of words of pronounced elasticity. Its interpretation is a matter of degree. It is "possible" for a system of supervision to continue without reports of the Mandatory, without written petitions accompanied by his comments and explanations, without the representatives of the latter being present at the meetings of the supervisory organ, and without oral hearings filling the gap which has thus arisen. But that would not be a supervision as contemplated by the Opinion of 1950. It would be a supervision falling short not only of the assumption of effectiveness which underlay that Opinion of the Court, but also of what must be regarded as a reasonable measure of effectiveness. It has been suggested that the Committee would meet with no difficulty if it were to abstain from oral hearings of petitioners. Admittedly, there is as a rule no difficulty encountered by doing nothing or little, but this is hardly a reasonable standard by which to gauge the fulfilment of the task of the supervising authority. There is no occasion to go to the extreme length [p54] in thus interpreting away the requirements of satisfactory supervision in deference to a persistent attitude of non co-operation on the part of the Mandatory. There is no general interest involved in weakening the system of supervision so considerably below the level contemplated in the Opinion of 1950. For these reasons I find no difficulty in accepting the view that the saving expression "so far as possible" can properly be relied upon in this case so as to permit oral hearings of petitioners. I cannot accept the argument that the expression "as far as possible" should be reduced to insignificance for the reason that the Opinion of 1950 intended to crystallize the substantive and procedural status quo as it then existed. Reasons have been given above why there is no merit in the view that the Court ought to lend its authority to the continued and unaltered maintenance of that status quo by upholding the two qualifying clauses of its Opinion of 1950 after the two basic provisions which it thus qualified have ceased to be operative as the result of the attitude of the Mandatory.

***

There is one point which requires some explanation in this connection. In its Opinion of 7 June 1955 on the Voting Procedure, the Court, in explaining the expression "as far as possible" as being "designed to allow for adjustments and modifications necessitated by legal or practical considerations" (at p. 77)—an explanation which fully covers the issue now before the Court—seemed to give a restricted scope to that expression. It explained that phrase as "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" (ibid.). It might thus appear that the Court was limiting the operation of the "as far as possible" principle to the exigencies of the Charter and of the procedure of the General Assembly. It is not believed that this is so. In the case of the Voting Procedure the Court was concerned with this particular aspect of the question and it was therefore natural that its reasoning should have concentrated on that issue. There is no reason to assume that it intended to limit generally the apparent comprehensiveness of the clause "as far as possible". Similar considerations apply to those passages of the Opinion of 1955 in which the Court attached importance to stating that the expression "degree of supervision", inasmuch as it related to the "measure and means of supervision" and to "the means employed by the supervisory authority in obtaining adequate information", should not be interpreted as relating to procedural [p55] matters (at p. 72). The correct view is that the issue of oral hearings is both a question of substantive supervision and of procedure. It is clear that a procedural measure may decisively affect the rights and. obligations of the parties. There would be a disadvantage in basing" the Judgments and Opinions of the Court not on legal considerations of general application but on controversial technicalities and artificial classifications.

VI

There remains the question whether, assuming that there has been created a real gap in the system of supervision and that oral hearings may be instrumental to some extent in filling that gap, the consistency of oral hearings with the Opinion of 11 July 1950 can be ascertained by way of judicial interpretation or whether it can only be decreed, by way of legislative change, by the General Assembly. This question, it is believed, must be answered affirmatively in the light of the general legal considerations outlined above.

There are three possible methods of approach for a court of law confronted with a situation such as the present, namely, that of a party refusing to recognize or to act upon a legal instrument which purports to express the legal obligations of that party and whose validity must, as in the present case, be regarded as continuing:

(1) It is possible to hold that, even if that party refuses to be bound by any of the obligations or limitations of the legal instrument in question, the other party—in this case the United Nations and the Committee on South West Africa are the other party— must fulfil literally and abide by all the restraining provisions enacted for the benefit of the recalcitrant party even if such onesided application results in reducing substantially the effectiveness of the instrument. Any such method I consider to be unsound.
(2) The second method is to assert that, as the legal instrument in question has been repudiated by one party, a new factual and legal situation has arisen in which the other party is free to act as it pleases and to disregard all the restraints of the instrument. This, I believe, is not the view which the Court can properly adopt. The Opinion of 1950 continues to be the law. It established —or recognized—a legal status of the Territory. It is the law binding upon the Committee for South West Africa.
(3) The third possibility, which appears to me most appropriate as a legal proposition and in accordance with good faith and common sense, is to interpret the instrument as continuing in validity and as fully applicable subject to reasonable re-adjust[p56]ments calculated to maintain the effectiveness, though not more than that, of the major purpose of the instrument.

Similarly, it is in the light of the general principle as thus stated that there must be considered the contention that if as the result of the attitude of South Africa and the situation which has thus arisen it is necessary to effect changes in the Opinion of the Court of 11 July 1950, such changes must be accomplished by the General Assembly and not by the Court. For it would appear that that argument begs the question. The Court, in finding that oral hearings are consistent with its Opinion of 11 July 1950, is not changing the law as laid down in that Opinion. It interprets it in accordance with good sense and sound legal principle. This in fact was the method which the Court followed in its Opinion of 11 July 1950, when it was called upon to interpret the relevant clauses of the Covenant of the League of Nations and of the Charter of the United Nations. In answering the question as to the existing international legal position of South West Africa it applied the relevant international instruments in so far as this was possible. It did not change the law as contained therein. The essence of that Opinion was that the Court declined to apply literally the legal regime which it was called upon to interpret. It declined to admit that the continuity of the mandatory system meant necessarily that only the League of Nations—and no one else— could act as the supervising authority. On the face of it, the Opinion, inasmuch as it held that the United Nations must be substituted for the League of Nations as the supervisory organ, signified a change as compared with the letter of the Covenant. Actually, the Opinion did no more than give effect to the main purpose of the legal instruments before it. That is the true function of interpretation. The Opinion gave effect to the existing law in a situation in which otherwise its purpose, as the Court saw it, would have been endangered. This is essentially the situation with which the Court is confronted in the present case.

There is one further consideration which must be borne in mind in relation to the suggestion that although the Court cannot declare oral hearings of petitioners to be consistent with its Opinion of 1950, the General Assembly—and the General Assembly only— has the power to do so. The Preamble to the request for the present Opinion begins as follows: "The General Assembly, having been requested by the Committee on South West Africa to decide whether or not the oral hearing of petitioners on matters relating to the territory of South West Africa is admissible before that Committee..." The Court is requested to advise the General Assembly whether, as a matter of law embodied in the Opinion of the Court of 11 July 1950, the General Assembly is entitled to decide that oral hearings are admissible. In view of this, it is hardly possible for the Court to give a negative answer to the question put to it and to say—or imply—that if any change [p57] is required as the result of the attitude of South Africa then that change must be effected by the General Assembly and not the Court. For this is the very question which the Court has been asked to answer. It is not possible for the Court to say that it would be contrary to the Opinion of u July 1950 for the General Assembly to authorize oral hearings and at the same time to say, or imply, that the General Assembly may do it. If the General Assembly had felt at liberty to authorize oral hearings regardless of whether such authorization is consistent with the Opinion of 11 July 1950 or not, it would have hardly found it necessary to request the Court to give the present Advisory Opinion. This being so, the Court could not, in the present case, renounce its legitimate function on the ground that the appropriate result can be achieved by the legislative action of the political organ. Reluctance to encroach upon the province of the legislature is a proper, manifestation of judicial caution. If exaggerated, it may amount to unwillingness to fulfil a task which is within the orbit of the functions of the Court as defined by its Statute. The Court cannot properly be concerned with any political effects of its decisions. But it is important, as a matter of international public policy, to bear in mind the indirect consequences of any pronouncement which, by giving a purely literal interpretation of the Opinion of 11 July 1950, would have rendered it impotent in face of obstruction by one party.

In fact, from whatever angle the request for the present Advisory Opinion is viewed, a substantive answer to it seems indicated by reference to general legal considerations such as outlined in this and in the preceding parts of this Separate Opinion. This applies also to that part of the Opinion in which I have come to the conclusion that oral hearings of petitioners would—apart from the situation actually confronting the United Nations—be inconsistent with the Opinion of 11 July 1950 inasmuch as they depart from the system which obtained under the League of Nations. But, as explained, that system was predicated on the fulfilment by the Mandatory of his obligations in the matter of reports and petitions. As the result of the attitude now adopted by the Union of South Africa, that assumption no longer applies. The maxim cessante ratione cessat lex ipsa is a trite legal proposition. This circumstance does not affect the propriety and the necessity of its judicial application.

***

It is necessary in this connection to refer to the apparent inconsistency between the view which is put forward in this Separate Opinion (and which in effect underlies the present Opinion of the Court) and that on which the Court seems to have based its Opinion [p58] of 18 July 1950 on the Interpretation of the Peace Treaties (Second Phase). In the latter case the Court declined to hold that the failure, contrary to their international obligations, of certain States to appoint representatives to the Commissions provided by the treaties in question for settling disputes justified some alternative method of appointment not contemplated by these treaties. As in the present case, the conduct of the States in question had thus created a gap—in fact, a breakdown—in the operation of the system of supervision contemplated by the treaties. Yet the Court refused to admit the legality of an alternative method designed to remedy the situation. It said:

"The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties is one thing; international responsibility is another. The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of Commission contemplated by the Treaties. It is the duty of the Court to interpret the Treaties, not to revise them." (I.C.J. Reports 1950, p. 229.)

The resemblance of the two cases is as striking as the apparent discrepancy between the present Opinion of the Court and that in the case of the Interpretation of the Peace Treaties. In view of this it is appropriate and desirable to state the reasons, if any, for this seeming departure from a previous Opinion. Without expressing a view as to the merits of the Opinion of the Court on the Interpretation of the Peace Treaties, I consider that, in fact, the two cases are dissimilar in a vital respect. The clauses of the Peace Treaties of 1947 relating to settlement of disputes were, as shown in their wording and the protracted history of their adoption, formulated in terms which clearly revealed the absence of agreement to endow them with a full measure of effectiveness—including safeguards to be resorted to in the event of the failure of one of the parties to participate in the procedure of settlement of disputes. This was a case in which the application of the principle of effectiveness in the interpretation of treaties found, in the view of the Court, a necessary limit in the circumstance that the parties had failed—not accidentally, but by design—-to render them fully effective. This is not the position in the present case when the Court is confronted with the interpretation of provisions concerning a regime in the nature of an international status of established and continuous operation; provisions in relation to which the Court, in the Opinion of 11 July 1950 and that of 7 June 1955 on Voting Procedure, affirmed in emphatic language the necessity of securing the unimpeded and effective application of the system of supervision in accordance with the fundamental provisions of the Covenant and the Charter; and with regard to which it qualified the notion of any literal and rigid continuity of the Mandates System by making it obligatory only "so far as possible"—an expression expressly [p59] "designed to allow for adjustments and modifications necessitated by legal or practical considerations" (I.C.J. Reports 1955, p. 77).

This being so, the present Advisory Opinion of the Court seems to be fully in accordance with its previous practice of interpreting treaties and other international instruments in a manner calculated to secure their effective operation. For this reason, subject to some doubts as to the formulation of the operative part of the Opinion and as to some aspects of its reasoning such as the extent of the reliance on the implied powers of the Council of the League of Nations, I have no hesitation in concurring in the Opinion of the Court.

(Signed) H. Lauterpacht. [p60]


DISSENTING OPINION OF VICE-PRESIDENT BADAWI AND JUDGES BASDEVANT, HSU MO, ARMAND-UGON AND MORENO QUINTANA

[Translation]

We regret that we are unable to concur in the Opinion of the Court and we believe it necessary to state the main grounds upon which we dissent.

***

The Court has usefully defined the meaning which it attaches to the question which has been put to it by the General Assembly.

In the first place, it has stated that it understood this question as having reference to the hearing, by the Committee on South West Africa, of persons having submitted written petitions. This clarification is useful, for in the debates in the Committee on South West Africa and in the Fourth Committee there were those who discussed what have been called "oral petitions".

We shall place ourselves on the same ground as the Court, namely, that of the hearing of a person who has previously submitted a written petition in due form. We shall merely make one observation in this connection. If it be considered that the grant of a hearing to one who has submitted a written petition is not consistent with the Opinion of 1950, the same will be true a fortiori of permission to submit an oral petition. If, on the other hand, the hearing of one who has submitted a written petition is found to be consistent with the Opinion of 1950, that view will leave open the question whether it is consistent with that Opinion to permit the submission of an oral petition.

It is further stated in the reasoning of the present Opinion, though not repeated in the operative part, that, while the question submitted to the Court in terms refers to the grant of oral hearings by the Committee on South West Africa, the Court interprets this question as meaning: whether it is legally open to the General Assembly to authorize the Committee to grant oral hearings to petitioners. We accept this interpretation, which seems to us to follow from the fact that the Committee having requested the General Assembly to decide whether or not the oral hearing of petitioners is admissible before that Committee, the General Assembly considered it desirable to seek the opinion of the Court.

***

The request for an Opinion submitted to the Court on December 19th, 1955, in stating the question put to it, refers solely [p61] to the compatibility with the Opinion of 1950 of a decision to grant hearings to petitioners. "Is it consistent with the advisory opinion ... [of 1950] for the Committee on South West Africa ... to grant oral hearings to petitioners...?" It is thus compatibility with the Opinion of 1950 which is to be appraised, and nothing else. The Request for an Opinion, in this respect, contains an exact statement of the question upon which an Opinion is sought, as required by Article 65, paragraph 2, of the Statute. One can understand why the General Assembly should have put the question on this ground, since it had previously adopted the Opinion of the Court as the basis for its action. In putting the question in this way, it has submitted a legal question to the Court.
It is therefore in the Opinion of 1950 that the Court must seek the elements for its reply.

The General Assembly has not asked it to seek them in factual or legal considerations outside the scope of that Opinion, in particular in the attitude of the Union of South Africa, nor to take note of the latter's refusal to submit to the exercise of supervision by the United Nations. The Request for an Opinion makes no allusion either to that attitude or to that refusal. These facts were subsequent in date to the Opinion of 1950, which was confined to describing the legal position in the light of then existing factors: they cannot therefore constitute factors to be considered in ascertaining the meaning and scope of that Opinion.

The Resolution setting forth the Request for an Opinion twice refers to Resolution 749 A (VIII). The first reference, in the preamble, is designed to serve as an indication of a function assigned to the Committee on South West Africa; the second, in the operative clause, has as its purpose the identification of that Committee. There is nothing there which expressly or impliedly indicates the General Assembly's intention to request the Court, which is called upon to determine the meaning and scope of its Opinion of 1950, to have regard to all that is stated in Resolution 749 A (VIII), and particularly to what is said concerning the attitude of the Union of South Africa, its refusal to co-operate in the exercise of supervision and the sentiments of the General Assembly in this regard. The facts thus set out and the regret expressed with regard to them in Resolution 749 A (VIII) are not repeated in the Request for an Opinion : it is not there stated that the Court should itself take note of these facts, still less that it should evaluate them for the purpose of arriving at a conclusion as to the compatibility of the grant of hearings to petitioners with its Opinion of 1950.

It is not, moreover, clear how a resolution adopted by the General Assembly in 1953 could, by referring to facts subsequent to the Opinion of 1950, enlighten the Court as to the meaning and scope of that Opinion which is precisely what is now the issue. [p62]

It may furthermore be observed that it is only if it should be found that a proper interpretation of the Opinion of 1950 leads to the conclusion that the hearing of petitioners is not consistent with that Opinion, that the question may arise whether the refusal of the Union of South Africa to submit to the exercise of supervision constitutes a new element such as nevertheless to justify such a hearing. That would be neither to have regard to the meaning of the Opinion of 1950 nor to ascertain whether the hearing of petitioners is or is not consistent with that Opinion, which is a purely legal question and, as such, one suitable for submission to the Court. It would be to enquire whether that refusal constitutes a ground justifying the supervising authority in departing in this respect from observance of the Opinion of 1950. Such a question might be asked, but the considerations upon which a reply to it might be based would go beyond the scope of legal considerations and would involve political elements the appraisal of which is not within the domain of the Court, and such a question has not been put to it.

To confine attention to the question which has been put and to the terms in which it has been stated, where that statement is an exact one, is the normal course to adopt and one which accords with the respective roles of the General Assembly, which has put the question, and of the Court, which is called upon to give its reply. That was the course adopted by the Court in the case relating to Conditions of Admission of a State to Membership in the United Nations (I.C.J. Reports 1947-1948, p. 61). We would gladly repeat to-day what the Court then said, namely, that it "is not concerned with the motives which may have inspired [the] request".

***

Since the reply to the question now put to the Court is to be sought in the Opinion of 1950, it is necessary to seek, in the statements made in that Opinion—in anything which may shed light upon the ideas inspiring it and in the references which it contains—the elements which will determine that reply.

In answer to the first question then put to the Court, the Opinion of 1950 stated "that South West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th, 1920". The operative clause of the Opinion there found that the previously existing situation was maintained.

Having been questioned, in the second place, as to the continued existence and as to the nature of the international obligations upon the Union of South Africa under the Mandate for South West Africa, the Court, in order to reply to this question, made use, both in quotations on which it relied and in the considerations which it directly stated, of expressions such as: "continue to[p63] administer the mandated territories in accordance with their respective Mandates", "will continue to administer the Territory scrupulously in accordance with the obligations of the Mandate", "to maintain the status quo and to continue to administer the Territory in the spirit of the existing Mandate", "recognition by the Union Government of the continuance of its obligations under the Mandate". Passing then to the mandatory Power's obligation to submit to supervision, the Opinion, in its reasoning, again adopted this idea of continuity and of maintenance of the status quo when it said : "It cannot be admitted that the obligation to submit to supervision has disappeared", as the result of the disappearance of the Council of the League of Nations, which together with other considerations upon which there is no need to dwell here, led the Court to "the conclusion that the General Assembly of the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations ... and that the Union of South Africa is under an obligation to submit" to such supervision: again the Court speaks of "supervisory functions exercised by the League" and "taken over by the United Nations".

This notion of continuity, of maintenance of the status quo, is found again in the Opinion when it sees the right of petition admitted by the Council of the League of Nations as a "right which the inhabitants of South West Africa had ... acquired" and one which the Opinion regarded as "maintained" by Article 80 of the Charter.

The same idea appears again, still more clearly, when the Opinion, in view of the fact of the substitution of the United Nations for the League of Nations in respect of the exercise of supervision, draws this consequence: "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". This wording corresponds exactly to the proposition recalled above, to the effect that "the supervisory functions exercised by the League would be taken over by the United Nations".
In harmony with these considerations set out in its reasoning, the Opinion states, in its operative clause, that "the Union of South Africa continues to have" its obligations as a mandatory Power, both in respect of substantive obligations and in respect of the exercise of supervision.

There are thus many statements in the Opinion which express the idea of the maintenance of the former régime in respect of the position of the Territory of South West Africa, the international obligations upon the Union of South Africa as a mandatory Power and the exercise of supervision. [p64]

Is this observation confirmed by the spirit of the Opinion of 1950?

***

The spirit of the Opinion; which may serve as a guide to its interpretation and therefore to the reply to be given to the question relating to compatibility with that Opinion which has now been submitted to the Court, may be found from a consideration of its purpose and of the circumstances in which it was requested and given.

The purpose of the Opinion of 1950 was to reply to the questions then put to the Court by the General Assembly. These questions related to the status of the Territory of South West Africa and to the obligations of the Union of South Africa. It was necessary to determine with regard to each point whether the former position was maintained. The Court's reply was in the affirmative.

The General Assembly had not requested the Court to determine and to say whether the General Assembly had a part to play in this connection, nor to what extent and in what way such a role was to be performed. The Court was faced with this question only incidentally, because recognition of the continuance of the Mandate and of the corresponding obligations on the Union of South Africa might encounter objections based on the disappearance of the supervisory organ, the Council of the League of Nations. The Court then pointed out the importance of "the administration of mandated territories" being "subject to international supervision", but it did not then seek to determine what the powers of the supervising authority should be. It simply sought to ascertain whether, after the disappearance of the League of Nations, there still existed an international authority qualified to exercise this function of supervision. It found it in the General Assembly of the United Nations, and having reached this solution on the basis of the provisions of the Charter, it went no farther: it was unnecessary for it to define the powers with which the Council of the League of Nations had been invested or to have recourse to the notion of a transfer to the General Assembly of the powers of the Council of the League of Nations. The provisions of the Charter were sufficient for the Court to give expression to the main idea to which it held, namely, the need for the maintenance of the supervisory function, that is to say, the idea of continuity.

The position, at the time when the Opinion of 1950 was requested and given, was that resulting from the disappearance of the League of Nations and the termination of the Covenant under which the Mandate for South West Africa had been entrusted to the Union of South Africa. This situation raised the question whether the Mandate continued to exist and what were the obligations of the Union of South Africa in this connection. It was to this question that the [p65]
Court was called upon to reply, and the main feature of its reply was that there had been no change but that there was continuity.

An important element of the situation then existing was referred to on a number of occasions by the Court in the reasoning of its Opinion: that is, the willingness expressed by the Union of South Africa to regard itself as continuing to exercise its Mandate, to continue to administer, the Territory in accordance with the provisions of the Mandate and to continue to render reports to the United Nations.

The spirit of the Opinion thus fully confirms what is expressed by its letter: the continuity of the Mandate and of the international obligations of the Union of South Africa which result therefrom.

***

What is the meaning of this continuity, of this maintenance of the status quo? Does it, so far as the point at present under consideration is concerned, refer to the supervision which was in fact applied during the existence of the League of Nations or does it refer to the powers possessed by the Council of the League of Nations in the matter of supervision, whether any such powers had been actually exercised by the Council or not?

In dealing with the question to which it gave its reply in 1950, the Court was not required to express an opinion as to the powers of the Council of the League of Nations. The Opinion of 1950 nowhere alludes to these powers or seeks to determine what they were or what were their limits; nor is it concerned with the question whether or not they were exercised by the Council.

A consideration of the powers with which the Council was invested would have been necessary if the Court had accepted the idea of the United Nations' succession to the League of Nations, of the transfer of powers from one organization to the other. The Court did not overlook this particular aspect of the problem.

Resolution 24 (I) adopted by the General Assembly on February 12th, 1946, had made provision with regard to the method to be adopted for the examination of any request "that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character". Here appeared the idea of a possible transfer of powers entrusted to the League of Nations. But the course indicated by that Resolution was not followed. The Union of South Africa has not submitted to the General Assembly any request that the latter should assume the "powers entrusted" to the Council of the League of Nations. The Opinion of 1950 did not therefore place itself on the same ground as Resolution 24 (I). On the contrary, it stated in its reasoning that "the supervisory functions of the League with regard to mandated territories not placed under the new Trusteeship System were neither expressly transferred to the United [p66]
Nations nor expressly assumed by that organization". The Opinion does not base itself on the idea of succession, on the idea of the transfer of powers.

The Court, unattracted by the idea of succession, of the transfer of powers, based itself on the objective elements of the situation—the importance of international supervision under the Mandates System as well as the provisions of the Charter of the United Nations. It was in these elements that the Court, in its Opinion of 1950, found "decisive reasons" for the view that "the General Assembly of the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations".

At no time did the Court base itself on the extent of the powers which the Council of the League of Nations exercised or could have exercised. An opportunity was in fact offered to it to embark upon such a consideration when it referred to the innovation brought about in 1923 by the institution of the right of petition. But the Court did not raise the question whether that had constituted the exercise of a power' belonging to the Council of the League of Nations or whether it was the result of an express or tacit agreement. Here, as elsewhere, the Opinion did not seek to determine with what powers the Council was invested. It limited itself to stating the existing situation for the purpose of asserting the maintenance of the right of petition, just as it had referred to that situation in saying that the General Assembly was qualified to exercise the supervisory functions "previously exercised by the League of Nations"—the functions previously "exercised" and not those which it was entitled to exercise or could have exercised.

This reference to the existing situation, to the exercise of the function of supervision as it had been exercised during the time of the League of Nations, is again encountered when the Opinion— defining the proper exercise of that same function by the General Assembly of the United Nations—states, not as a new or isolated proposition but as a consequence of what had previously been said with regard to the continuance of the obligations of the Union of South Africa and the competence of the General Assembly, that "the degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System". The words are "which applied"—not "which might have been applied" or "which was applicable". These words refer to the practice which was established, whether that practice remained within or went beyond the powers conferred upon the Council. The established practice is the only criterion.

This is, moreover, implicitly confirmed by the remainder of the sentence, if not by its letter, at least in its spirit. This second part of the sentence introduces an element of flexibility in the domain of procedure, when it states that the degree of supervision "should conform as far as possible to the procedure followed in [p67] this respect by the Council of the League of Nations". The General Assembly is thus invited to conform to the procedure previously followed, but it is given certain discretionary freedom, as indicated by the words "as far as possible". This restriction is of value after the principle has been laid down that the degree of supervision should not exceed what it was in the former practice. But if the idea be accepted as a basis that the General Assembly has the same powers as the Council of the League of Nations, and if it be admitted that the latter had the power to modify its procedure in respect of supervision, the General Assembly would ipso facto have the same power of modifying its procedure: the second part of the sentence in question would then be pointless, since it purports to confer on the General Assembly a discretionary power which, on that interpretation, the Assembly would already possess. Indeed, by the idea of conformity stated in that sentence, it would limit the freedom of the General Assembly, a freedom which on that interpretation should remain unimpaired.
This confirms that the Opinion, when speaking of supervision, intended to maintain the former practice and not to refer to powers which might subsequently be held to have belonged to the Council, although the latter never exercised them. It was a little late in 1950, and it is still later at the present time, to seek to list such powers for the purpose of ascertaining those of the General Assembly.

The maintenance of the former regime, that is the dominant idea in the determination by the Opinion of 1950 of the status of the Territory of South West Africa and of the obligations of the Union of South Africa, particularly of that obligation which relates to the point at present under consideration: the obligation to submit to the exercise of supervision.

It follows from the maintenance of the former regime that the functions of the General Assembly, in its capacity as supervising organ, are limited to those which the Council of the League of Nations in fact exercised before its disappearance. The General Assembly cannot introduce any method of supervision which the Council did not in fact establish, even if it could have done so, in accordance with the terms of the Covenant and of the Mandate. Any such new method would exceed "the degree of supervision which applied under the Mandates System".

This stabilization of the former regime may be explained by the fact that the Court was unable to find any decision that it should be modified at the time of the disappearance of the League of Nations. That no such decision was taken may be fully explained by the expectation that the mandatory States would conclude Trusteeship Agreements, an expectation to which the Court referred in its Opinion. At the time when it gave that Opinion, the Court did not regard this expectation as a forlorn one, since it considered it appropriate to repeat that "the normal [p68] way of modifying the international status of the Territory would be to place it under the Trusteeship System".

***

Having thus come to the conclusion that the criterion of compatibility with the Opinion of 1950 involves reference to the former practice, it is necessary to determine the position in this respect with regard to the hearing of petitioners.

The hearing of petitioners is not referred to in the Opinion of 1950, which had to determine what were the obligations of the Union of South Africa. The Opinion referred to the obligation to submit to the exercise of supervision: it did not refer to the hearing of petitioners, nor, consequently, to any obligation to accept such hearings. This may give rise to a presumption that such hearings by the Committee on South West Africa would not be consistent with the Opinion of 1950. It may, however, be thought that such a presumption should be submitted to closer consideration.

The Opinion of 1950 having, as has been said, found that the Mandates System continued to be applicable to South West Africa and that the obligations of a mandatory Power, including the obligation to submit to the exercise of supervision and the maintenance of the system of supervision in accordance with the former practice, except for the substitution of the United Nations for the League of Nations for the exercise of supervision, remained binding on the Union of South Africa, it is necessary to consider what was the position, under the system in force in the League of Nations, with regard to the hearing of petitioners.

The Court has in this connection made two observations with which we are in agreement. It has stated in the first place that the functions of the Committee on South West Africa are analogous to those of the Permanent Mandates Commission established by the Council of the League of Nations, pursuant to Article 22 of the Covenant: the Court had already so stated' in its Opinion of 1955 (I.C.J. Reports 1955, p. 72). In the second place, the Court has stated that oral hearings were not granted to petitioners by the Permanent Mandates Commission at any time.

The Permanent Mandates Commission had, however, been concerned with the question of such hearings and in 1926 it expressed the opinion that in certain cases "it might appear indispensable to allow the petitioners to be heard by it". It submitted the question to the Council of the League of Nations, which considered that there was no occasion to introduce this innovation (Resolution of March 7th, 1927).

The Report, on the conclusions of which the Council of the League of Nations adopted this negative solution, stated, among other things, that it was important that the Commission should have [p69] "at its disposal all proper means for obtaining ... information". It thus placed the question on the ground of what the Opinion of 1950 called "the degree of supervision". The Report added that "it would not, however, be desirable to seek to attain this object by means which might alter the very character of the Commission". It tempered the negative conclusion which it reached, or sought to quiet the fears which that conclusion might arouse in the minds of some, by adding: "If in any particular case the circumstances should show that it was impossible for all the necessary information to be secured ... the Council could ... decide on such exceptional procedure as might seem appropriate and necessary in the particular circumstances."

This reservation was not repeated in the Resolution adopted by the Council of the League of Nations. The Council directed the Secretary-General to transmit copies of the Report, of the Resolution and of the replies of the mandatory Powers to the Permanent Mandates Commission.

In the view of the Rapporteur, consideration of a "particular case" such as he envisaged was to be within the domain of the Council of the League of Nations, and it was not a matter in respect of which provision should be made in advance by means of any "general rules". It would therefore be contrary to the proposal enunciated by the Rapporteur to proceed by virtue of a delegated power authorizing the Committee on South West Africa to assess the requirements of a particular case and to determine the exceptional procedure warranted by the particular circumstances, or for the General Assembly to proceed on the basis of "general rules" authorizing, in greater or lesser measure, the hearing of petitioners. Lastly, it is to be observed that, although the Report was prepared with reference to the question of the hearing of petitioners, "such exceptional procedure as might seem appropriate and necessary in the particular circumstances" which it envisages need not necessarily involve hearings, but might consist of something else.

If it were necessary to determine what were, in the view of the Rapporteur, the powers of the Council, this point would require more detailed consideration. But having regard to the question which has been put to the Court and to what is, in our view, the meaning of the Opinion given by the Court in 1950, it is sufficient for us to observe that the Report had no practical consequences, so far as the hearing of petitioners was concerned, and that the Permanent Mandates Commission continued to refrain from hearing petitioners. [p70]

***

Since the Opinion of 1950 made reference to the former practice and since the Permanent Mandates Commission did not have recourse to the hearing of petitioners, we are compelled to take the view that such hearings by the Committee on South West Africa would not be consistent with the Opinion given by the Court in 1950.

In reaching this conclusion, we have not had regard to the fact, noted by the General Assembly in Resolution 749 A (VIII), that the Union of South Africa is not submitting to the exercise of super-vision. Consideration of this fact did not appear to us to fall within the scope of an examination of the question put to the Court in the Request for an Opinion submitted to it.

We do not, however, overlook the fact that the question of the hearing of petitioners by the Committee on South West Africa might be placed on another ground than that of the compatibility of such hearings with the Opinion of 1950. The General Assembly might be led to enquire whether that refusal, which it had noted, of the Union of South Africa to submit to the exercise of supervision by the United Nations did not authorize it to allow the hearing of petitioners, even though it should thereby depart from the Opinion of 1950 which it had adopted as a rule governing its action. Certain considerations of a legal character might enter into an examination of that question: the importance of international supervision under the Mandates System and the obligation of the Mandatory Power to submit to the exercise of supervision, both of which were recalled in the Opinion of 1950. It might also be recalled that, while proposing that the hearing of petitioners should not be sanctioned by any provision more or less general in character, the Rapporteur indicated to the Council of the League of Nations in 1927 that in any particular case it would be open to the Council to "decide on such exceptional procedure as might seem appropriate and necessary in the particular circumstances". Whatever the importance of such considerations, they would not be sufficient by themselves to provide an answer to such a question: in considering that question the General Assembly could not avoid taking into account considerations of a political and practical character which are within its own competence and not within that of the Court.

The question here envisaged, which relates to the possibility of the General Assembly's authorizing the hearing of petitioners even if, by so doing, it should depart from the Opinion of the Court, is, by reason of its object and of the considerations which its examination would involve, different from the question of compatibility with that Opinion. It is the latter question only that the Dissenting Opinion seeks to answer. The answer which we give cannot prejudge the General Assembly's answer to the altogether different question to which reference has just been made. [p71]

***

For these reasons, it is not possible for us to subscribe to the Opinion now given by the Court.

(Signed) A. Badawi.
Basdevant.
Hsu Mo.
Armand-Ugon.
Lucio M. Moreno Quintana.

Declaration by Vice-President Badawi

[Translation]

While subscribing to the above opinion, I feel it proper to add the following consideration.

In fact, the former practice under the Mandates System in respect of the hearing of petitioners was as described in the foregoing opinion. However, the decision of the Council of the League of Nations to communicate to the Permanent Mandates Commission—together with the Resolution of 1927 according to which "there is no occasion to modify the procedure which has hitherto been followed by the Commission in regard to this question"— the Report on the basis of which that Resolution was adopted and the replies of the mandatory Powers, conferred upon these documents the character of an explanatory note to the Resolution of the Council. The Report should accordingly, in my view, be regarded as forming part of the Resolution.

Looked upon in this light, the Report made available to the Council, and now makes available to the General Assembly, the possibility, in the particular cases there referred to, of undertaking the hearing of petitioners as such an "exceptional procedure as might seem appropriate and necessary in the particular circumstances". Any decision authorizing such a course would essentially be a decision on the particular facts of the case and should be taken by the General Assembly itself wherever it considers that it would be desirable to authorize such a hearing: in other words, any general delegation to another organ of the powers of the General Assembly in this connexion should be excluded.

(Initialled) A. B.

 
     

 

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