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[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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