|
[p.15]
The Court,
composed as above,
delivers the following Judgment.
On 30 May 1961 the Ambassador of Cameroon to France handed to the Registrar
an Application which, referring to a dispute between his Government and the
Government of the United Kingdom, prayed the Court to adjudge and declare
that, in the application of the Trusteeship Agreement for the Territory of
the Cameroons under British Administration approved by the General Assembly
of the United Nations on 13 December 1946, the United Kingdom failed, with
regard to the Northern Cameroons, to respect certain obligations directly
or indirectly flowing from that Agreement. To found the jurisdiction of the
Court the Application relies on Article 19 of the Trusteeship Agreement.
In accordance with Article 40, paragraph 2, of the Statute of the Court, the
Application was communicated to the Government of the United Kingdom. In
accordance with paragraph 3 of the same Article, the other Members of the
United Nations and the non-member States entitled to appear before the Court
were notified.
Time-limits for the filing of the Memorial and the Counter-Memorial were
fixed by an Order of 6 July 1961 and subsequently extended at the request of
the Parties by Orders of 2 November 1961, 25 April and 10 July 1962. The
Memorial and Counter-Memorial were filed within the time-limits so extended.
In the Counter-Memorial, filed on 14 August 1962, the Government of the
United Kingdom not only referred to the merits of the case but also raised
preliminary objections under Article 62 of the Rules of Court. Accordingly,
an Order of 3 September 1962 recorded that by virtue of the provisions of
Article 62, paragraph 3, of the Rules of Court, the proceedings on the
merits were suspended and fixed 1 December 1962 as the time-limit within
which the Government of Cameroon might present a written statement of its
observations and submissions on the preliminary objections. At the request
of the Government of Cameroon this time-limit was extended to 1 March 1963
by an Order of 27 November 1962 and further extended to 1 July 1963 by an
Order of 11 January 1963. [p 18]
The statement having been presented within the time-limit so extended, the
case became ready for hearing in respect of the preliminary objections.
Pursuant to Article 31, paragraph 2, of the Statute, the Government of
Cameroon chose M. Philémon Beb a Don, Ambassador of Cameroon to France, to
sit as Judge ad hoc in the present case.
On 19-23, 25-27, 30 September and I and 3 October 1963, hearings were held
in the course of which the Court heard the oral arguments and replies of Sir
Francis Vallat, Agent, and Sir John Hobson, Counsel, on behalf of the
Government of the United Kingdom; and of M. Vincent de Paul Ahanda, Agent,
Mr. Paul Engo, Assistant Agent, and M. Prosper Weil, Counsel, on behalf of
the Government of Cameroon.
In the written proceedings, the following Submissions were presented by the
Parties:
On behalf of the Government of Cameroon, in the Application:
"May it please the Court:
…………………………………………………………………………………………
to notify the present Application, in accordance with Article 40, paragraph
2, of the Statute of the Court to the Government of the United Kingdom;
to adjudge and declare, whether the Government of the United Kingdom appears
or not, and after such time-limits as the Court may fix: that the United
Kingdom has, in the application of the Trusteeship Agreement of 13 December
1946, failed to respect certain obligations directly or indirectly flowing
therefrom on the various points set out above";
in the Memorial:
"The submissions of the Federal Republic of Cameroon are as follows: may it
please the Court to find in favour of the submissions of its Application
instituting proceedings and, in particular, to adjudge and declare:
that the United Kingdom has, in the application of the Trusteeship Agreement
of 13 December 1946, failed to respect certain obligations directly or
indirectly flowing therefrom on the various points set out above."
On behalf of the Government of the United Kingdom,
in the Counter-Memorial:
"112. The British Government submit that the Court should hold and
declare:[p 19]
(i) that, for the reasons stated in Part 1 of this Counter-Memorial, the
Court has no jurisdiction in this case;
(ii) that, if, contrary to the submission of the British Government, the
Court holds that it has jurisdiction, for the reasons stated in Parts II and
III of this Counter-Memorial, the allegations made by the Republic of
Cameroon of breach of the obligations of the United Kingdom under the
Trusteeship Agreement are without foundation."
On behalf of the Government of Cameroon,
in the Observations and Submissions on the preliminary objection:
"On the basis of the foregoing observations, and reserving all its rights
with regard to the merits of the case, the Federal Republic of Cameroon has
the honour to lay the following submissions before the Court:
May it please the Court:
1.To dismiss the preliminary objection of the United Kingdom to the effect
that the Court should declare that it has no jurisdiction;
2.To dismiss the preliminary objection of the United Kingdom based on
failure to observe the provisions of Article 32, paragraph 2,of the Rules of
Court;
3.To adjudge and declare that the United Kingdom has, in the interpretation
and application of the Trusteeship Agreement for the Territory of the
Cameroons under British Administration, failed to respect certain
obligations directly or indirectly flowing from the said Agreement, and in
particular from Articles 3, 5, 6 and 7 thereof."
In the oral proceedings the following Submissions were presented by the
Parties:
On behalf of the Government of the United Kingdom, at the hearing on 23
September 1963:
"For the reasons which I have presented to the Court, I now submit that it
should hold and declare that the Court has no jurisdiction in this case, and
I sustain the first conclusion in paragraph 112 of the United Kingdom
Counter-Memorial."
On behalf of the Government of Cameroon, after the hearing on 27 September
1963:
"May it please the Court:
1.To dismiss the preliminary objection of the United Kingdom to the effect
that the Court should declare that it has no jurisdiction;
2.To dismiss the preliminary objection of the United Kingdom based on
failure to observe the provisions of Article 32, paragraph 2,of the Rules of
Court;
3.To adjudge and declare that the United Kingdom has, in the interpretation
and application of the Trusteeship Agreement for [p 20] the Territory of the
Cameroons under British Administration, failed to respect certain
obligations directly or indirectly flowing from the said Agreement, and in
particular from Articles 3, 5, 6 and 7 thereof."
On behalf of the Government of the United Kingdom,
at the hearing on 1 October 1963:
"For the reasons given in the Counter-Memorial and the oral statements
presented on behalf of the United Kingdom during the present hearing, the
United Kingdom makes the following submissions :
(1) that there has not at any time been a dispute as alleged in the
Application in this case;
(2) that there has not been or was not on 30 May 1961, as alleged in the
Application, a dispute falling within Article 19 of the Trusteeship
Agreement for the Territory of the Cameroons under United Kingdom
Administration;
(3) that, in any event, there is no dispute before the Court upon which the
Court is entitled to adjudicate.
May it, therefore, please the Court:
Having regard to each and all of the above submissions, to uphold the
preliminary objections of the United Kingdom and to declare that the Court
is without jurisdiction in the present case and that the Court will not
proceed to examine the merits."
On behalf of the Government of Cameroon,
at the hearing on 3 October 1963:
"For the reasons given in its pleadings and oral statements, the Federal
Republic of Cameroon has the honour to make the following submissions:
May it please the Court:
1.To dismiss the preliminary objections of the United Kingdom to the effect
that the Court should declare that it has no jurisdiction;
2.To declare that it has jurisdiction to examine the merits of the claim of
the Federal Republic of Cameroon to the effect that the Court should adjudge
and declare that the United Kingdom has, in the interpretation and
application of the Trusteeship Agreement for the Territory of the Cameroons
under British Administration, failed to respect certain obligations directly
or indirectly flowing from the said Agreement, and in particular from
Articles 3, 5, 6and 7 thereof."
The President having asked the Agent of the Government of the United Kingdom
whether he had any observations to make on the submissions thus presented by
the Government of Cameroon, the Agent stated that he had no comment to make
in so far as the submissions related to the question of jurisdiction and the
preliminary objections of the United Kingdom.
***
[p 21] In order to be in a position to pass upon the submissions of the
Parties, the Court must take into account certain facts which underlie the
Applicant's complaints. Although the Court will subsequently enter into
some points in greater detail, it will, at the outset, present in broad
outline the facts which it has found to be important to an appreciation of
the case.
The historical background of the Application filed by the Republic of
Cameroon on 30 May 1961 relates to one of the several important political
developments affecting certain territories in the continent of Africa which
have taken place in recent years. The territory here in question, known as
the Northern Cameroons, formed part of the "oversea possessions" the rights
and titles to which Germany renounced under Article 119 of the Treaty of
Versailles of 28 June 1919, and which were placed under the Mandates System
of the League of Nations. In conformity with a decision of the Council of
Four at the Peace Conference, the Governments of France and Great Britain
recommended that the territory which had been known as the German
protectorate of Kamerun should be divided into two Mandates, the one to be
administered by France and the other by Great Britain. This recommendation
was accepted and the Mandates were established.
After the creation of the United Nations, the French and British Governments
proposed to place these mandated territories under the International
Trusteeship System. Trusteeship Agreements for the Territory of the
Cameroons under British Administration and for the Territory of the
Cameroons under French Administration with the approval of the General
Assembly of the United Nations entered into force on 13 December 1946.
The Government of the United Kingdom as the Administering Authority
maintained in the Trust Territory of the Cameroons the same administrative
arrangements which it had first instituted when the Mandate was accepted.
Under these arrangements the territory was divided into a northern region
and a southern region. The Northem Cameroons was itself not a geographical
whole but was in two sections, separated by a narrow strip of the territory
of what was then the British Protectorate of Nigeria which bordered the
entire western side of the Mandate. The Northern Cameroons was administered
as part of the two northern provinces of Nigeria, Bornu and Adamawa. The
Southern Cameroons was administered until 1939 as a separate Cameroons
Province of Southern Nigeria. Thereafter, the Southern Cameroons was joined
for administrative purposes to the eastern provinces of Nigeria as a
separate province.
The Trust Territory of the Cameroons under French Administration, which
formed the entire eastern and most of the northern frontier of the Trust
Territory of the Cameroons under British [p 22] Administration, attained
independence as the Republic of Cameroon on I January 1960. On 20 September
1960 the Republic of Cameroon became a Member of the United Nations. On 1
October 1961, pursuant to the results of a plebiscite conducted under the
auspices of the United Nations, the Southern Cameroons joined the Republic
of Cameroon within which it then became incorporated.
Meanwhile, also consequent upon a plebiscite conducted under the auspices of
the United Nations on 11 and 12 February 1961, the Northern Cameroons on 1
June 1961 joined the Federation of Nigeria which had become independent on 1
October 1960 and which was admitted as a Member of the United Nations six
days later. The Northern Cameroons became and remains a separate province of
the Northern Region of Nigeria.
The situation of the Trust Territories of the Cameroons under French
Administration and of the Cameroons under British Administration received
much attention from the Trusteeship Council of the United Nations and from
the General Assembly itself. Indeed, the General Assembly on 5 December 1958
decided to resume its thirteenth session in February 1959 "to consider
exclusively the question of the future of the Trust Territories of the
Cameroons under French Administration and the Cameroons under United Kingdom
Administration". In addition, the whole question of administrative unions in
trust territories was over many years the subject of repeated study within
the United Nations.
The reports of visiting missions to the two Trust Territories of the
Cameroons under French and British administration respectively, the
proceedings of the Trusteeship Council and of the Fourth Committee of the
General Assembly as well as the reports of the United Nations Plebiscite
Commissioner who supervised plebiscites held in the Trust Territory of the
Cameroons under British Administration, afford abundant background for the
questions raised by the Republic of Cameroon in its Application of 30 May
1961 instituting proceedings against the United Kingdom. Since proceedings
on the merits were suspended as recorded in the Order of 3 September 1962,
the Court, as already noted, refers to this body of material only for the
purpose of indicating the setting in which it has been called upon to
consider the Application and Memorial of the Republic of Cameroon and the
Preliminary Objections thereto which have been filed by the United Kingdom.
It is necessary, however, by way of clarification of what follows, to refer
specifically to three of the resolutions adopted by the General Assembly of
the United Nations.
On 13 March 1959, the General Assembly adopted resolution 1350 (XIII). It
recommended that the Administering Authority, in consultation with a United
Nations Plebiscite Commissioner, organize under the supervision of the
United Nations separate plebiscites in the northern and southern parts of
the Cameroons under British administration "in order to ascertain the wishes
of [p 23] the inhabitants of the Territory concerning their future". In the
Southern Cameroons, the plebiscite was held on n February 1961: the vote
registered a decision "to achieve independence by joining the independent
Republic of Cameroun". In the Northern Cameroons a first plebiscite was held
on 7 November 1959; the vote was in favour of deciding their future at a
later date. Accordingly, by resolution 1473 (XIV) of 12 December 1959, the
General Assembly recommended that a second plebiscite be held in the
Northern Cameroons in which the people would be asked whether they wished
"to achieve independence" by joining the independent Republic of Cameroon or
by joining the independent Federation of Nigeria. By the same resolution,
the General Assembly recommended that the United Kingdom should meanwhile
take various steps including the initiation without delay of the
"separation of the administration of the Northern Cameroons from that of
Nigeria and that this process should be completed by 1 October 1960". It is
one of the complaints of the Republic of Cameroon as Applicant here, that
the United Kingdom as Administering Authority failed to take the necessary
steps to comply with this recommendation.
The plebiscite was held on II and 12 February 1961, and on 21 April 1961 the
General Assembly adopted resolution 1608 (XV) which has special significance
in this case. The resolution includes the following three paragraphs:
"2. Endorses the results of the plebiscites that:
(a) The people of the Northern Cameroons have, by a substantial majority,
decided to achieve independence by joining the independent Federation of
Nigeria;
(b) The people of the Southern Cameroons have similarly decided to achieve
independence by joining the independent Republic of Cameroun;
3. Considers that, the people of the two parts of the Trust Territory having
freely and secretly expressed their wishes with regard to their respective
futures in accordance with General Assembly resolutions 1352 (XIV) and 1473
(XIV), the decisions made by them through democratic processes under the
supervision of the United Nations should be immediately implemented;
4. Decides that, the plebiscites having been taken separately with differing
results, the Trusteeship Agreement of 13 December1946 concerning the
Cameroons under United Kingdom administration shall be terminated, in
accordance with Article 76 b of the Charter of the United Nations and in
agreement with the Administering Authority, in the following manner:
(a) With respect to the Northern Cameroons, on 1 June 1961, upon its joining
the Federation of Nigeria as a separate province of the Northern Region of
Nigeria;[p 24]
(b) With respect to the Southern Cameroons, on I October 1961, upon its
joining the Republic of Cameroun;".
The Republic of Cameroon voted against the adoption of this resolution.
Although in a Memorandum of I May 1961 from the Republic of Cameroon
Ministry of Foreign Affairs transmitted to the United Kingdom (which
hereafter will more particularly be referred to) the position was taken that
the Trusteeship could not be terminated without the consent of the Republic
of Cameroon "in its capacity as a State directly concerned", the Applicant
did not maintain this position and the fact that the Trusteeship Agreement
was terminated by the General Assembly's resolution 1608 (XV), is now
admitted by both Parties.
Even before the discussions which led up to resolution 1608 (XV), the
Republic of Cameroon expressed its dissatisfaction with the manner in which
the separation of the administration of the Northern Cameroons from that of
Nigeria was being implemented by the United Kingdom. As early as May 1960,
before the Republic of Cameroon became a Member of the United Nations, its
point of view was expounded on its behalf by the representative of France in
the Trusteeship Council. After its admission to membership of the United
Nations, by a communiqué attached to a note verbale of 4 January 1961 to the
United Kingdom, the Republic of Cameroon asserted on its own behalf that
this administrative separation had not been made effective and that the
United Kingdom as Administering Authority had not conducted the peoples of
the Northern Cameroons to self-government as provided in Article 76 (b) of
the Charter of the United Nations. Thereafter, and after the plebiscite of
February 1961, representatives of the Republic of Cameroon through numerous
interventions in the Fourth Committee of the General Assembly and in the
plenary sessions of the Assembly, made known its objections to certain
alleged practices, acts or omissions on the part of the local trusteeship
authorities during the period preceding the plebiscite and during the course
of the plebiscite itself which it claimed altered the normal course of the
consultation with the people and involved consequences in conflict with the
Trusteeship Agreement. Throughout, the Republic of Cameroon emphasized its
view that the "rule of unity" had been disregarded by the Administering
Authority and thereby the political development of the Trust Territory had
been altered.
These objections, together with the allegations by the Republic of Cameroon
that the Administrative separation recommended in General Assembly
resolution 1473 (XIV) had not been effected, and the complaint that the
whole Trust Territory had not been adrninistered as a single administrative
unit, were developed in a Cameroon White Book distributed by it to all
Members of the United Nations in March 1961 when the results of the second
[p 25] plebiscite in the Northern Cameroons were being debated in the Fourth
Committee of the General Assembly. In response to this White Book, letters
in rebuttal were similarly distributed by the representatives of the United
Kingdom and of Nigeria. It was following this exchange and the attendant
debates that the General Assembly adopted resolution 1608 (XV) previously
referred to.
Following the adoption of the General Assembly's resolution 1608 (XV), the
Republic of Cameroon, on 1 May 1961, addressed a communication to the United
Kingdom in which it referred to complaints "of a legal character" which had
been advanced by it and which it wished to have considered by this Court.
The complaints are listed in its communication and they correspond with
those which in the Application are stated to be the matters relating to the
execution of the Trusteeship Agreement on the part of the Administering
Authority and constituting the subject of the dispute between the Republic
of Cameroon and the United Kingdom. Its communication referred to a dispute
concerning the application of the Trusteeship Agreement and requested the
United Kingdom to enter into a special agreement for the purpose of bringing
the same before this Court. No reference was made in the communication of
the Republic of Cameroon to Article 19 of the Trusteeship Agreement which
hereafter will be referred to.
To this communication the United Kingdom replied on 26 May 1961 stating that
the dispute did not appear to be between it and the Republic of Cameroon but
between the latter and the United Nations General Assembly. The policies or
practices with which the Republic of Cameroon found fault, the reply goes on
to state, had been endorsed by the United Nations and the United Kingdom did
not deem it proper to submit to the International Court a dispute concerning
these. To refer the matter to this Court, the letter proceeded to Say, would
call in question the decision of the General Assembly as set out in its
resolution 1608 (XV) and introduce an element of uncertainty into a matter
decided by the Assembly. For these stated reasons the United Kingdom
declared they were unable to comply with the request of the Republic of
Cameroon to refer the matter to this Court.
Four days later, on 30 May 1961, the Republic of Cameroon submitted its
Application to the Court, basing the jurisdiction of the Court on Article 19
of the Trusteeship Agreement which reads as follows:
"Article 19. If any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to the
interpretation or application of the provisions of this Agreement, such
dispute, if it cannot be settled by negotiation or other means, shall be
submitted to the International Court of Justice, provided for in Chapter XIV
of the United Nations Charter." [p 26]
Pursuant to General Assembly resolution 1608 (XV), the Trusteeship
Agreement was terminated, with respect to the Northern Cameroons, two days
later, on 1 June 1961.
***
The Application lists the following complaints:
"(a) The Northern Cameroons have not, in spite of the text of Article 5, $
B, of the Trusteeship Agreement, been administered as a separate territory
within an administrative union, but as an integral part of Nigeria.
(b) Article 6 of the Trusteeship Agreement laid down as objectives the
development of free political institutions, a progressively increasing
share for the inhabitants of the Territory in the administrative services,
their participation in advisory and legislative bodies and in the government
of the Territory. These objectives, in the opinion of the Republic of
Cameroon, have not been attained.
(c) The Trusteeship Agreement did not authorize the Administering Power to
administer the Territory as two separate parts, contrary to the rule of
unity, in accordance with two administrative systems and following separate
courses of political development.
(d) The provisions of §7 of Resolution 1473 relating to the separation of
the administration of the Northern Cameroons from that of Nigeria have not
been followed.
(e) The measures provided for in §6 of the same Resolution in order to
achieve further decentralization of governmental functions and the effective
democratization of the system of local government have not been implemented.
(f) The conditions laid down by §4 of the Resolution for the drawing up of
electoral lists were interpreted in a discriminatory manner, by giving an
improper interpretation to the qualification of ordinary residence.
(g) Practices, acts or omissions of the local Trusteeship authorities during
the period preceding the plebiscite and during the elections themselves
altered the normal course of the consultation and involved consequences in
conflict with the Trusteeship Agreement."
The formulation of the grievances of the Republic of Cameroon is stated in
differing language in the Application, its Memorial, its Written
Observations and Submissions and its Final Submissions. It suffices at this
point, and in the light of what has already been said, to quote from the
Final Submissions the prayer—
"that the Court should adjudge and declare that the United Kingdom has, in
the interpretation and application of the Trusteeship Agreement for the
Territory of the Cameroons under British Administration, failed to respect
certain obligations directly or indirectly flowing from the said Agreement,
and in particular from Articles 3, 5, 6 and 7 thereof". [p 27]
The Counter-Memorial of the United Kingdom, in Part II thereof, dealt with
the merits of the case, the stated reason being that the United Kingdom
thought assertions of the Republic of Cameroon should not remain unanswered.
Part 1 of the Counter-Memorial raised a number of preliminary objections.
These objections were developed at considerable length during the course of
the oral hearing. For reasons which will subsequently appear, the Court does
not find it necessary to consider all the objections, nor to determine
whether all of them are objections to jurisdiction or to admissibility or
based on other grounds. During the course of the oral hearing little
distinction if any was made by the Parties themselves between "jurisdiction"
and "admissibility". There are however two objections which the Court thinks
should be disposed of at this stage.
The first of these objections is the contention of the United Kingdom that
there is no "dispute" between itself and the Republic of Cameroon. If any
dispute did at the date of the Application exist, it is the United Kingdom's
contention that it was between the Republic of Cameroon and the United
Nations or its General Assembly.
The Court is not concerned with the question whether or not any dispute in
relation t:, the same subject-matter existed between the Republic of
Cameroon and the United Nations or the General Assembly. In the view of the
Court it is sufficient to Say that, having regard to the facts already
stated in this Judgment, the opposing views of the Parties as to the
interpretation and application of relevant Articles of the Trusteeship
Agreement, reveal the existence of a dispute in the sense recognized by the
jurisprudence of the Court and of its predecessor, between the Republic of
Cameroon and the United Kingdom at the date of the Application.
The other preliminary objection, that the Court finds it convenient at this
stage to deal with, is based on Article 32 (2) of the Rules of Court which
provides that when a case is brought before it by means of an application,
the application must not only indicate the subject of the dispute as laid
down in Article 40 of the Court's Statute but it must also "as far as
possible” specify the provision on which the Applicant founds the
jurisdiction of the Court, and state the precise nature of the claim and the
grounds on which it is based.
In the Observations and Submissions of the Republic of Cameroon, this
objection is treated separately as one to the admissibility of the
Application and the Memorial.
The Court cannot be indifferent to any failure, whether by Applicant or
Respondent, to comply with its Rules which have been framed in accordance
with Article 30 of its Statute. The Permanent Court of International
Justice in several cases felt called upon to consider whether the formal
requirements of its Rules had been met. In such matters of form it tended to
"take a broad [p 28]view". (The "Société Commerciale de Belgique", P.C.I.
J., Series A/B, No. 78, p. 173.) The Court agrees with the view expressed by
the Permanent Court in the Mavrommatis Palestine Concessions case (P.C.I.J.,
Series A, No. 2, p. 34):
"The Court, whose jurisdiction is international, is not bound to attach to
matters of form the same degree of importance which they might possess in
municipal law."
The Court is quite conscious of the Applicant's deeply felt concern over
events referred to in its pleadings and if there were no other reason which
in its opinion would prevent it from examining the case on the merits, it
would not refuse to proceed because of the lack of what the Permanent Court
in the case of the Interpretation of the Statute of the Memel Territory,
called a "convenient and appropriate method in which to bring the difference
of opinion before the Court" (P.C.I.J., Series A/B, No. 49, p. 311).
The Court notes that whilst under Article 40 of its Statute the subject of a
dispute brought before the Court shall be indicated, Article y2 (2) of the
Rules of Court requires the Applicant "as far as possible" to do certain
things. These words apply not only to specifying the provision on which the
Applicant founds the jurisdiction of the Court, but also to stating the
precise nature of the claim and giving a succinct statement of the facts and
grounds on which the claim is based. In the view of the Court the Applicant
has sufficiently complied with the provisions of Article 32 (2) of the Rules
and the preliminary objection based upon non-compliance therewith is
accordingly without substance.
***
The arguments of the Parties have at times been at cross-purposes because of
the absence of a common meaning ascribed to such terms as "interest" and
"admissibility". The Court recognizes that these words in differing contexts
may have varying connotations but it does not find it necessary in the
present case to explore the meaning of these terms. For the purposes of the
present case, a factual analysis undertaken in the light of certain guiding
principles may suffice to conduce to the resolution of the issues to which
the Court directs its attention.
The geographical propinquity of the Republic of Cameroon to the former Trust
Territory of the Northern Cameroons, and the degree of affinity between the
populations of the two regions, led the Republic of Cameroon to view the
developments regarding the former Trust Territory with intense concern. The
Court cannot blind its eyes to the indisputable fact that if the result of
the plebiscite in the Northern Cameroons had not favoured joining the
Federation of Nigeria, it would have favoured joining the Republic of
Cameroon. No third choice was presented in the questions framed [p 29] by
the General Assembly and no other alternative was contemporaneously
discussed.
The Republic of Cameroon, as a Member of the United Nations as from 20
September 1960, had a right to apply to the Court and by the filing of the
Application of 30 May 1961 the Court was seised. This procedural right to
apply to the Court, where, whatever the outcome, all aspects of a matter can
be discussed in the objective atmosphere of a court of justice, is by no
means insubstantial. The filing of an application instituting proceedings,
however, does not prejudge the action which the Court may take to deal with
the case.
In its Judgment of 18 November 1953 on the Preliminary Objection in the
Nottebohm case (I.C.J. Reports 1953, p. 122), the Court had occasion to deal
at some length with the nature of seisin and the consequences of seising the
Court. As this Court said in that Judgment: "the seising of the Court is one
thing, the administration of justice is another". It is the act of the
Applicant which seises the Court but even if the Court, when seised, finds
that it has jurisdiction, the Court is not compelled in every case to
exercise that jurisdiction. There are inherent limitations on the exercise
of the judicial function which the Court, as a court of justice, can never
ignore. There may thus be an incompatibility between the desires of an
applicant, or, indeed, of both parties to a case, on the one hand, and on
the other hand the duty of the Court to maintain its judicial character. The
Court itself, and not the parties, must be the guardian of the Court's
judicial integrity.
In the Free Zones case, the Permanent Court referred to three different
considerations which would lead it to decline to give judgment on questions
posed by the parties. These were raised by the Court proprio motu. In the
Order of 19 August 1929 (P.C.I.J., Series A, No. 22, p. 15), the Court in
the first place said that—
"the Court cannot as a general rule be compelled to choose between
constructions [of a treaty] determined beforehand none of which may
correspond to the opinion at which it may arrive..."
In the second place, in its Judgment of 7 June 1932 in the same case
(P.C.I.J., Series A/B, No. 46, p. 161) the Court said:
"After mature consideration, the Court maintains its opinion that it would
be incompatible with the Statute, and with its position as a Court of
Justice, to give a judgment which would be dependent for its validity on the
subsequent approval of the Parties."
Finally the Court went on to Say (at p. 162), in regard to paragraph 2 of
Article 2 of the Special Agreement which would have involved a [p 30]
decision by the Court on questions such as specific tariff exemptions to be
established, that the task thus assigned to the Court by the parties was
"unsuitable to the role of a Court of Justice". Moreover, the "interplay of
economic interests" posed questions—
"outside the sphere in which a Court of Justice, concerned with the
application of rules of law, can help in the solution of disputes between
two States".
The Court may, of course, give advisory opinions—not at the request of a
State but at the request of a duly authorized organ or agency of the United
Nations. But both the Permanent Court of International Justice and this
Court have emphasized the fact that the Court's authority to give advisory
opinions must be exercised as a judicial function. Both Courts have had
occasion to make pronouncements concerning requests for advisory opinions,
which are equally applicable to the proper role of the Court in disposing of
contested cases; in both situations, the Court is exercising a judicial
function. That function is circumscribed by inherent limitations which are
none the less imperative because they may be difficult to catalogue, and may
not frequently present themselves as a conclusive bar to adjudication in a
concrete case. Nevertheless, it is always a matter for the determination of
the Court whether its judicial functions are involved. This Court, like the
Permanent Court of International Justice, has always been guided by the
principle which the latter stated in the case concerning the Status of
Eastern Carelia on 23 July 1923:
"The Court, being a Court of Justice, cannot, even in giving advisory
opinions, depart from the essential rules guiding their activity as a
Court." (P.C.I.J., Series B, No. 5, p. 29.)
In the Hay a de la Torre case (I.C.J. Reports 1951, pp. 78-79), the Court
noted that both parties sought from the Court a decision "as to the manner
in which the asylum should be terminated". It ordered that the asylum should
terminate but refused to indicate means to be employed to give effect to its
order. The Court said:
"The interrogative form in which they have formulated their Submissions
shows that they desire that the Court should make a choice amongst the
various courses by which the asylum may be terminated. But these courses are
conditioned by facts and by possibilities which, to a very large extent, the
Parties are alone in a position to appreciate. A choice amongst them could
not be based on legal considerations, but only on considerations of
practicability or of political expediency; it is not part of the Court's
judicial function to make such a choice." [p 31]
To determine whether the adjudication sought by the Applicant is one which
the Court's judicial function permits it to give, the Court must take into
account certain facts in the present case.
***
The Applicant's explanations of what it does and does not ask the Court to
decide, are variously formulated in its written and oral pleadings. The
Court believes that the clearest explanation is to be found in the
Applicant's Observations and Submissions as follows:
"When a State brings an action before the Court on the basis of a provision
of the nature of Article 19 of the Trusteeship Agreement for the Cameroons
under British administration, it may no doubt in certain cases, in addition
to seeking a finding that a violation of the Trusteeship Agreement has been
committed, ask the Court to declare that the administering Power is under an
obligation to put an end to that violation. Thus, in the South West Africa
cases, Ethiopia and Liberia in their submissions asked the Court both for a
finding of certain violations (the policy of apartheid, failure to render
annual reports, failure to transmit petitions, etc.) and for a declaration
that South Africa is under an obligation to bring these violations to an
end. But this can only be so when what is involved is what might be called a
'continuing violation' capable of being stopped pursuant to the Court's
Judgment. When, on the other hand, the breach of the agreement has been
finally consummated and it is physically impossible to undo the past, the
Applicant State is no longer in a position to ask the Court for more than a
finding, with force of res judicata, that the Trusteeship Agreement has not
been respected by the administering Power.
In the case in point the violations referred to have been finally
consummated, and the Republic of Cameroon cannot ask for a restitutio in
integrum having the effect of non-occurrence of the union with Nigeria and
non-division of the Territory, or fulfilment of the objectives laid down in
Article 6 of the Agreement, or observance of Resolution 1473; it can only
ask for a finding by the Court of the breaches of the Trusteeship Agreement
committed by the Administering Authority."
In the course of his oral argument, Counsel for the Applicant said:
"The Republic of Cameroon considers in fact that, by administering the
Northern Cameroons as it did, the Administering Authority created such
conditions that the Trusteeship led to the attachment of the northern part
of the Cameroons to a State other than the Republic of Cameroon."
In the Cameroon White Book already mentioned, it is said that "failure to
separate the administrations of the two territories destroyed an essential
guarantee of impartiality and effectively sabotaged the plebiscite". The
White Book continued by saying: [p 32]
"The only acceptable solution to avoid a monstrous injustice ... is to
declare the plebiscite ... null and void..."
The injustice alleged seems clearly enough to have been "the attachment of
the northern part of the Cameroons to a State other than the Republic of
Cameroon".
But the Court is not asked to redress the alleged injustice; it is not asked
to detach territory from Nigeria; it is not asked to restore to the Republic
of Cameroon peoples or territories claimed to have been lost; it is not
asked to award reparation of any kind.
It was not to this Court but to the General Assembly of the United Nations
that the Republic of Cameroon directed the argument and the plea for a
declaration that the plebiscite was null and void. In paragraphs numbered 2
and 3 of resolution 1608 (XV), the General Assembly rejected the Cameroon
plea. Whatever the motivation of the General Assembly in reaching the
conclusions contained in those paragraphs, whether or not it was acting
wholly on the political plane and without the Court finding it necessary to
consider here whether or not the General Assembly based its action on a
correct interpretation of the Trusteeship Agreement, there is no doubt—and
indeed no controversy—that the resolution had definitive legal effect. The
plebiscite was not declared null and void but, on the contrary, its results
were endorsed and the General Assembly decided that the Trusteeship
Agreement should be terminated with respect to the Northern Cameroons on 1
June 1961. In the event, the termination of the Trusteeship Agreement was a
legal effect of the conclusions in paragraphs 2 and 3 of reso-lution 1608
(XV). The Applicant here has expressly said it does not ask the Court to
revise or to reverse those conclusions of the General Assembly or those
decisions as such, and it is not therefore necessary to consider whether
the Court could exercise such an authority. But the Applicant does ask the
Court to appreciate certain facts and to reach conclusions on those facts at
variance with the conclusions stated by the General Assembly in resolution
1608 (XV).
If the Court were to decide that it can deal with the case on the merits,
and if thereafter, following argument on the merits, the Court decided,
inter alia, that the establishment and the maintenance of the administrative
union between the Northern Cameroons and Nigeria was a violation of the
Trusteeship Agreement, it would still remain true that the General Assembly,
acting within its acknowledged competence, was not persuaded that either the
administrative union, or other alleged factors, invalidated the plebiscite
as a free expression of the will of the people. Since the Court has not, in
the Applicant's submissions, been asked to review that conclusion of the
General Assembly, a decision by the Court, for example that the
Administering Authority had violated the [p 33] Trusteeship Agreement, would
not establish a causal connection between that violation and the result of
the plebiscite.
Moreover, the termination of the Trusteeship Agreement and the ensuing
joinder of the Northern Cameroons to the Federation of Nigeria were not the
acts of the United Kingdom but the result of actions of the General
Assembly, actions to which the United Kingdom assented. Counsel for the
Republic of Cameroon admitted that it was the United Nations which
terminated the Trusteeship. He said:
"Cameroon is not asking the Court to criticize the United Nations; Cameroon
is not asking the Court to Say that the United Nations was wrong in
terminating the Trusteeship; Cameroon is not asking the Court to pronounce
the annulment of resolution 1608. The Court, of course, would not be
competent to do that..."
The administrative union, as established during the Trusteeship, whether
legally or illegally, no longer exists. The Republic of Cameroon, however,
contends that its interest in knowing whether that union was a violation of
the Trusteeship Agreement, is not a merely academic one. It in fact contends
that there was a causal connection between the allegedly illegal
administrative union and the alleged invalidity of the plebiscite. Counsel
for the Republic of Cameroon made this contention clear in a passage already
quoted.
But the Applicant has stated that it does not ask the Court to invalidate
the plebiscite; indeed as noted, it recognizes the Court could not do so. It
has not asked the Court to find any causal connection between the alleged
maladministration and the result of the vote favouring union with the
Federation of Nigeria. As a result, the Court is relegated to an issue
remote from reality.
If the Court were to proceed and were to hold that the Applicant's
contentions were all sound on the merits, it would still be impossible for
the Court to render a judgment capable of effective application. The role of
the Court is not the same as that of the General Assembly. The decisions of
the General Assembly would not be reversed by the judgment of the Court. The
Trusteeship Agreement would not be revived and given new life by the
judgment. The former Trust Territory of the Northern Cameroons would not be
joined to the Republic of Cameroon. The union of that territory with the
Federation of Nigeria would not be invalidated. The United Kingdom would
have no right or authority to take any action with a view to satisfying the
underlying desires of the Republic of Cameroon In accordance with Article 59
of the Statute, the judgment would not be binding on Nigeria, or on any
other State, or on any organ of the United Nations. These truths are not
controverted by the Applicant.
The function of the Court is to state the law, but it may pronounce judgment
only in connection with concrete cases where there [p 34] exists at the time
of the adjudication an actual controversy involving a conflict of legal
interests between the parties. The Court's judgment must have some practical
consequence in the sense that it can affect existing legal rights or
obligations of the parties, thus removing uncertainty from their legal
relations. No judgment on the merits in this case could satisfy these
essentials of the judicial function.
***
The Trusteeship Agreement with respect to the Northern Cameroons having been
validly terminated by resolution 1608 (XV), the Trust itself disappeared;
the United Kingdom ceased to have the rights and duties of a trustee with
respect to the Cameroons; and what was formerly the Trust Territory of the
Northern Cameroons has joined the independent Federation of Nigeria and is
now a part of that State.
Looking at the situation brought about by the termination of the Trusteeship
Agreement from the point of view of a Member of the United Nations, other
than the Administering Authority itself, it is clear that any rights which
may have been granted by the Articles of the Trusteeship Agreement to other
Members of the United Nations or their nationals came to an end. This is not
to Say that, for example, property rights which might have been obtained in
accordance with certain Articles of the Trusteeship Agreement and which
might have vested before the termination of the Agreement, would have been
divested by the termination. It is the fact, however, that after I June 1961
when the Trust over the Northern Cameroons ceased to exist, no other Member
of the United Nations could thereafter claim any of the rights or privileges
in the Northern Cameroons which might have been originally granted by the
Trusteeship Agreement. No such claim could be made on the United Kingdom
which as trustee was functus officio and divested of all power and authority
and responsibility in the area. No such claim could be made on Nigeria,
which now has sovereignty over the territory, since Nigeria was not a party
to the Trusteeship Agreement and never had any obligations under it. Nor is
it apparent how such a claim could be made against the United Nations
itself. Moreover, pursuant to Article 59 of the Statute a judgment of the
Court in this case would bind only the two Parties.
The claim of the Republic of Cameroon is solely for a finding of a breach of
the law. No further action is asked of the Court or can be added. Normally
when the Court pronounces a judicial condemnation there is room for the
application of Article 94 of the Charter. That is not the case here.
Normally under the International Trusteeship System such a finding, if the
Court were competent to make it, might lead the General Assembly to do
whatever it thought
[p 35] useful or desirable in the light of the judgment pronounced as
between a Member of the United Nations and an Administering Authority for
the territory in question. In the present case, however, the General
Assembly is no longer competent pursuant to the termination of the
Trusteeship as a result of resolution 1608 (XV).
Nevertheless, it may be contended that if during the life of the Trusteeship
the Trustee was responsible for some act in violation of the terms of the
Trusteeship Agreement which resulted in damage to another Member of the
United Nations or to one of its nationals, a claim for reparation would not
be liquidated by the termination of the Trust. Of course Article 19 of the
Agreement which provided for the jurisdiction of the Court in the cases
which it covered, was terminated with all other Articles of the Agreement,
so that after 1 June 1961 it could not be invoked as a basis for the Court's
jurisdiction. The Application in the instant case was filed before 1 June
1961 but it does not include, and the Applicant has expressly stated that it
does not make, any claim for reparation.
The Court is aware of the fact that the arguments of both Parties made
frequent references to the Judgment of the Court of 21 December 1962 in the
South West Africa cases. The arguments dealt with the question whether
conclusions arrived at in the consideration of the Mandates System under the
League of Nations were applicable to the Trusteeship System under the
United Nations, and whether, and if so to what extent, Article 19 of the
Trusteeship Agreement of 1946 for the Cameroons was to be given in certain
respects an interpretation similar to that given to Article 7 of the Mandate
for South West Africa.
The Court does not find it necessary to pronounce an opinion on these points
which, in so far as concerns the operation or administration of the
Trusteeship for the Northern Cameroons, can have only an academic interest
since that Trusteeship is no longer in existence, and no determination
reached by the Court could be given effect to by the former Administering
Authority.
Nevertheless, for the purpose of testing certain contentions in this case,
the Court will consider what conclusions would be reached if it were common
ground that Article 19 of the Trusteeship Agreement of 13 December 1946 for
the Cameroons under British Adminis-tration was designed to provide a form
of judicial protection in the particular interest of the inhabitants of the
territory and in the general interest in the successful functioning of the
International Trusteeship System; that this judicial protection was
provided and existed side by side with the various provisions for
administrative supervision and control through the Trusteeship Council, its
visiting missions, hearing of petitioners, and action by the General
Assembly; that any Member of the United Nations had a right to [p 36] invoke
this judicial protection and specifically that the Republic of Cameroon had
the right to invoke it by filing an application in this Court. It would then
follow that in filing its Application on 30 May 1961, the Republic of
Cameroon exercised a procedural right which appertained to it—a procedural
right which was to be exercised in the general interest, whatever may have
been the material individual interest of the Republic of Cameroon. But
within two days after the filing of the Application the substantive interest
which that procedural right would have protected, disappeared with the
termination of the Trusteeship Agreement with respect to the Northern
Cameroons. After 1 June 1961 there was no "trust territory" and no
inhabitants for whose protection the trust functions could be exercised. It
must be assumed that the General Assembly was mindful of the general
interest when, acting within its competence, it decided on the termination
of the Trust with respect to the Northern Cameroons and the joinder of the
Northern Cameroons to the Federation of Nigeria. Thereafter, and as a result
of this decision of the General Assembly, the whole system of administrative
supervision came to an end. Thereafter the United Nations could not, under
the authority of Article 87 of the Charter, send into the Territory a
visiting mission to report on prevailing conditions. The Trusteeship Council
could no longer examine petitions from inhabitants of the Territory, as
indeed it decided at its 1178th meeting on 11 January 1962. The General
Assembly could no longer make recommendations based upon its functions under
Chapters XII and XII1 of the Charter.
The Court cannot agree that under these circumstances the judicial
protection claimed by the Applicant to have existed under the Trusteeship
System, would have alone survived when all of the concomitant elements to
which it was related had disappeared. Accordingly, the Republic of Cameroon
would not have had a right after 1 June 1961, when the Trusteeship Agreement
was terminated and the Trust itself came to an end, to ask the Court to
adjudicate at this stage upon questions affecting the rights of the
inhabitants of the former Trust Territory and the general interest in the
successful functioning of the Trusteeship System.
***
Throughout these proceedings the contention of the Republic of Cameroon has
been that all it seeks is a declaratory judgment of the Court that prior to
the termination of the Trusteeship Agreement with respect to the Northern
Cameroons, the United Kingdom had breached the provisions of the Agreement,
and that, if its Application were admissible and the Court had jurisdiction
to proceed to the merits, such a declaratory judgment is not only one the
Court could make but one that it should make. [p 37]
That the Court may, in an appropriate case, make a declaratory judgment is
indisputable. The Court has, however, already indicated that even if, when
seised of an Application, the Court finds that it has jurisdiction, it is
not obliged to exercise it in all cases. If the Court is satisfied, whatever
the nature of the relief claimed, that to adjudicate on the merits of an
Application would be inconsistent with its judicial function, it should
refuse to do so.
Moreover the Court observes that if in a declaratory judgment it expounds a
rule of customary law or interprets a treaty which remains in force, its
judgment has a continuing applicability. But in this case there is a dispute
about the interpretation and application of a treaty—the Trusteeship
Agreement—which has now been terminated, is no longer in force, and there
can be no opportunity for a future act of interpretation or application of
that treaty in accordance with any judgment the Court might render.
In its Interpretation of Judgments Nos. 7 and 8 (the Chorzów Factory)
(P.C.I.J., Series A, No. 13, p. 20) the Court said:
"The Court's Judgment No. 7 is in the nature of a declaratory judgment, the
intention of which is to ensure recognition of a situation at law, once and
for all and with binding force as between the Parties; so that the legal
position thus established cannot again be called in question in so far as
the legal effects ensuing therefrom are concerned."
The Applicant, however, seeks to minimize the importance of the forward
reach of a judgment of the Court. It has maintained that it is seeking
merely a statement of the law which would "constitute a vital pronouncement
for the people of Cameroon". It has indeed asked the Court not to consider
the aftermath of its judgment and in this connection it has cited the
judgment of the Court in the Haya de la Torre case, quoted above. But there
is a difference between the Court's considering the manner of compliance
with its Judgment, or the likelihood of compliance, and, on the other hand,
considering whether the judgment, if rendered, would be susceptible of any
compliance or execution whatever, at any time in the future.
As the Court said in the Haya de la Torre case, it cannot concern itself
with the choice among various practical steps which a State may take to
comply with a judgment. It may also be agreed, as Counsel for the Applicant
suggested, that after a judgment is rendered, the use which the successful
party makes of the judgment is a matter which lies on the political and not
on the judicial plane. But it is not the function of a court merely to
provide a basis for political action if no question of actual legal rights
is involved. Whenever the Court adjudicates on the merits of a dispute, one
or the other party, or both parties, as a factual matter, are in a position
to take some retroactive or prospective action or avoidance of [p 38]
action, which would constitute a compliance with the Court's judgment or a
defiance thereof. That is not the situation here.
***
The Court must discharge the duty to which it has already called
attention—the duty to safeguard the judicial function. Whether or not at the
moment the Application was filed there was jurisdiction in the Court to
adjudicate upon the dispute submitted to it, circumstances that have since
arisen render any adjudication devoid of purpose. Under these conditions,
for the Court to proceed further in the case would not, in its opinion, be a
proper discharge of its duties.
The answer to the question whether the judicial function is engaged may, in
certain cases where the issue is raised, need to wait upon an examination of
the merits. In the present case, however, it is already evident that it
cannot be engaged. No purpose accordingly would be served by undertaking an
examination of the merits in the case for the purpose of reaching a decision
which, in the light of the circumstances to which the Court has already
called attention, ineluctably must be made.
***
For the reasons which it has given, the Court has not felt called upon to
pass expressly upon the several submissions of the Respondent, in the form
in which they have been cast. The Court finds that the proper limits of its
judicial function do not permit it to entertain the claims submitted to it
in the Application of which it has been seised, with a view to a decision
having the authority of res judicata between the Republic of Cameroon and
the United Kingdom. Any judgment which the Court might pronounce would be
without object.
For these reasons,
The Court,
by ten votes to five,
finds that it cannot adjudicate upon the merits of the claim of the Federal
Republic of Cameroon.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this second day of December. one thousand nine
hundred and sixty-three, in three copies, one [p 39] of which will be placed
in the archives of the Court and the others transmitted to the Government of
the Federal Republic of Cameroon and to the Government of the United
Kingdom of Great Britain and Northern Ireland, respectively.
(Signed) B. Winiarski,
President.
(Signed) Garnier-Coignet,
Registrar.
Judge Spiropoulos makes the following declaration:
I do not share the view of the Court. I consider that the Application of
the Republic of Cameroon is admissible and that the Court has jurisdiction
to examine the merits of the dispute of which it is seised.
Judge Koretsky makes the following declaration:
I cannot agree with the Judgment of the Court, as it has been reached
without observance of relevant rules and principles laid down in the Rules
of Court.
The Judgment was adopted in the stage of an examination of a preliminary
objection, which delimits itself quite precisely from the stage of an
examination of the merits of an Application. The Court passed by the
question of its jurisdiction and turned to the question of the
inadmissibility of the claims of the Republic of Cameroon.
If the question of inadmissibility is raised, not on the ground of
non-observance of the purely formal requirements of the Rules, e.g.
non-observance of Article 32 (2) of the Rules, but in respect of the
substance of the Application (ratione materiae), then the Court should first
decide on its jurisdiction and subsequently consider the plea of
inadmissibility. This is a broadly accepted rule. I venture to cite, from
among many authoritative opinions, the statement of Judge Sir Percy Spender
in his Separate Opinion in the Interhandel case (I.C.J. Reports 1959, p. 54)
that the Court was obliged first to satisfy itself that it has jurisdiction
and then to treat a plea to the admissibility of the Application. The same
was said by Judge Sir Hersch Lauterpacht in his Dissenting Opinion (ibid.,
p. 100) "that according to the established practice of the Court preliminary
objections must be examined—and rejected—before the plea of admissibility is
examined". [p 40]
But the Court has said in this case, without dealing with the question of
its jurisdiction, that a judgment on the claims of the Republic of Cameroon
"would be without object”—that is, the Court has appraised Cameroon's claims
on their merits. Such an appraisal could only be made at a later stage in
the proceedings (on the merits), and by such an appraisal the Court
substituted for the stage of deciding on preliminary objections to
jurisdiction the stage of deciding the case on its merits.
One cannot regard rules of procedure as being simply technical. They
determine not only a way of proceeding but procedural rights of parties as
well. Their strict observance in the International Court of Justice, one
might Say, is even more important than in national courts. The Court may not
change them en passant in deciding a given case. A revision of the Rules of
Court should be effected (if necessary) in an orderly manner and, in any
case, the changed rules should be known to parties beforehand.
Thus the Court, in accordance with the Rules of Court, ought first to have
decided whether it had—or had not—jurisdiction in this case without
prejudging its future decision in this case on the merits and then,
observing the Rules of Court, to have passed to a further stage of the
proceedings connected with the examination of the claims of the Republic of
Cameroon on their merits.
Judge Jessup makes the following declaration:
In view of the reasoning in the Judgment of the Court, with which I entirely
agree, I do not find it necessary to explain why I believe that, if it were
necessary to pass upon the jurisdictional issues which have been raised, the
reasoning in pages 422 to 436 of my Separate Opinion in the South West
Africa cases (I.C.J. Reports 1962, p. 319) would be equally valid here.
Judges Wellington Koo, Sir Percy Spender, Sir Gerald Fitzmaurice and Morelli
append to the Judgment of the Court statements of their Separate Opinions.
Juilges Badawi and Bustamante y Rivero and Judge ad hoc Beb a Don append to
the Judgment of the Court statements of their Dissenting Opinions.
(Initialled) B. W
(Initialled) G.-C.
[p 41] SEPARATE OPINION OF JUDGE WELLINGTON KOO
I concur in the final conclusion reached by the majority of the Court in the
case, namely that any judgment the Court might pronounce on the merits
would be without object and incompatible with the Court's judicial function.
But I have arrived at it generally by a different line of reasoning. In my
view it is also important that fuller consideration should have been given
to the more pertinent submissions of the Parties so as to deduce additional
reasons in support of the conclusion, thereby broadening and strengthening
the basis of the Judgment. Accordingly, I propose to make a separate
statement of my opinion.
1. In this case the Application was filed by the Agent for the Government of
the Republic of Cameroon on 30 May 1961 and followed by its Memorial dated
12 December 1961. The submissions in both instruments are identical, asking
the Court to adjudge and declare that the United Kingdom has, in the
application of the Trusteeship Agreement of 13 December 1946, failed to
respect certain obligations directly or indirectly flowing therefrom on the
various points set out in the respective documents.
2. The Counter-Memorial of the United Kingdom contains two parts. Part 1 on
"The Jurisdiction of the Court" maintains that the Cameroon complaints do
not fall within Article 19 of the Trusteeship Agreement and that the
Application and the Memorial do not meet the requirements of the Rules of
Court. For these and other reasons stated therein, the United Kingdom makes
the submission that the Court is "without jurisdiction in the case and
should refuse to hear it".
3. The Applicant in its Observations makes three submissions. The first asks
the Court to dismiss the preliminary objection of the United Kingdom
contending that the Court has no jurisdiction and the second asks for
dismissal of the preliminary objection based on failure to observe the
provisions of Article 32, paragraph 2, of the Rules of Court. The third
submission is identical with that formulated in the Application and the
Memorial.
4. At the end of the first part of the oral pleading Counsel for the United
Kingdom submitted that the Court should hold and declare that it had no
jurisdiction in this case and that he sustained the first conclusion in
paragraph 112 of the United Kingdom Memorial. The Respondent's final
submissions were presented by its Agent at the end of the oral pleading,
which appear to have modified its earlier submissions and which are in the
following terms: [p 42]
"(1) that there has not, at any time, been a dispute as alleged in the
Application in this case;
(2) that there has not been or was not on the 30th May 1961,as alleged in
the Application, a dispute falling within Article 19of the Trusteeship
Agreement for the Territory of the Cameroons under United Kingdom
Administration;
(3) that, in any event, there is no dispute before the Court upon which the
Court is entitled to adjudicate."
Accordingly, the formal request to the Court is "to uphold the preliminary
objections of the United Kingdom and to declare that the Court is without
jurisdiction in the present case and that the Court will not proceed to
examine the merits".
5. On the other hand, the Applicant presented three formal submissions at
the end of the first part of the oral pleading and only two formal
submissions at the end of the last part. The difference consists in the
deletion of the submission relating to the preliminary objection of the
United Kingdom based on failure to observe the provisions of Article 32,
paragraph 2, of the Rules of Court; otherwise the two sets of submissions
are identical not only between them but also with the two formal submissions
in the Observations of the Government of the Federal Republic of Cameroon.
I
6. From the foregoing account of the successive submissions of the Parties
in the case it appears clear that the single issue before the Court in the
present phase of the proceedings is the question whether the Court has
jurisdiction to hear and adjudicate on the merits.
7. Before commencing consideration of the issue of jurisdiction, it is,
however, important to deal first with the preliminary question whether the
requirements of Article 32, paragraph 2, of the Rules of Court have been met
by the Application instituting proceedings in the present case. For if it is
found to be irregular, it must be deemed as inadmissible and the Court
cannot give further consideration to it. This determination is independent
of the question whether the Respondent has failed to insist upon the
objection and of the fact that the Applicant has omitted this point in its
final submissions.
8. The provision of said Rule 32 relied on by the Respondent requires that
the Application—
"must also, as far as possible ... state the precise nature of the claim and
give a succinct statement of the facts and grounds on which the claim is
based, these facts and grounds being developed in the Memorial, to which
evidence will be annexed".
It has been contended by the Respondent in its Counter-Memorial that neither
the Application nor the Memorial of the Republic [p 43] of Cameroon complies
with this Rule inasmuch as neither specifies the "certain obligations"
flowing from the Trusteeship Agreement which the United Kingdom is alleged
to have failed to fulfil.
9. On reference to the Application, however, it is seen that the complaints
are enumerated on page 19 and in the submissions thereof it is again stated
that the United Kingdom "failed to respect certain obligations ... on the
various points set out above". These complaints are again specified in
paragraph 3, page 5, of the Memorial. Moreover, Rule 32 only calls for these
indications "as far as possible". The criticism of the Respondent on this
point therefore cannot be considered as well founded.
10. As regards the principal issue of jurisdiction in the case, it appears
clear from the written and oral pleadings of the two Parties that the main
arguments respectively in support and denial of the jurisdiction of the
Court centre on Article 19 of the Trusteeship Agreement of 13 December 1946
for the Territory of the Cameroons between the United Nations on the one
part and the United Kingdom as Administering Authority on the other. This
provision reads:
"If any dispute whatever should arise between the Administering Authority
and another Member of the United Nations relating to the interpretation or
application of the provisions of this Agreement, such dispute, if it cannot
be settled by negotiation or other means, shall be submitted to the
International Court of Justice, provided for in Chapter XIV of the United
Nations Charter."
I will now examine the opposing arguments of the two Parties and assess
their respective values.
11. In the first place it is the contention of the Respondent that there
never has been a dispute between the United Kingdom and the Republic of
Cameroon in the sense in which the word was used in Article 19 of the
Trusteeship Agreement. It was said: "If the existence of a dispute in that
sense is not proved, there is no question but that the attempt to invoke
Article 19 fails in limine." The Applicant maintains, on the other hand,
that a dispute has arisen and continues to exist. It refers as evidence of
its existence, among other statements and communications, to a pamphlet
distributed to all Members of the General Assembly at the end of March 1961
and entitled "Position of the Republic of the Cameroon following the
plebiscite of 11th and 12th February 1961 in the Northern portion of the
Territory of the Cameroon under the administration of the United Kingdom of
Great Britain and Northern Ireland"; to the letter dated 10 April 1961
addressed by the representative of the United Kingdom on the Fourth
Committee of the General Assembly to its Chairman and circulated to its
Members in reply to this Cameroon "White Book", and to the exchange of Notes
between the two Parties of 1 and 26 May 1961 annexed to the Cameroon
Memorial.[p 44]
12. What constitutes a dispute under international law has been indicated on
several occasions by both the Permanent Court and this Court. Briefly it is
"a disagreement on a point of law or fact, a conflict of legal views or
interests between two persons" (Mavrommatis case, P.C.I.J., Series A, No. 2,
p. II). In its Advisory Opinion in the Interpretation of Peace Treaties this
Court finds that "international disputes have arisen" where "the two sides
hold clearly opposite views concerning the question of the performance or
non-performance of certain treaty obligations" (I.C.J. Reports 1950, p. 71).
In the light of these definitions, there can be no doubt that at least prima
facie a dispute has arisen between the Parties in the instant case.
II
13. It is true that an international dispute, just as a cause of action in
municipal law, must embody or imply the existence of a legal right or
interest at issue in order to be justiciable. Although the two Parties
recognize this factor as one of the essential conditions of its existence
and consider it as common ground between them, the Respondent contends that
it is lacking in the present dispute, because Article 19 of the Trusteeship
Agreement, on which the Application relies to uphold the jurisdiction of the
Court to adjudicate the case, does not confer a right or interest on the
Applicant as a third party to the Agreement to enforce the general
obligations of the Administering Authority but that this right or interest
appertains to the United Nations alone as the other party to the said
instrument. According to this contention, another Member of the United
Nations is entitled to invoke Article 19 against the Administering Authority
of a given trust territory only when its individual rights or those of its
nationals conferred by the Trusteeship Agreement were prejudiced by the
action or non-action of said authority, but no such prejudice has been
claimed by the Applicant. In support of this view, Counsel for the
Respondent cites the Judgment of this Court in the South West Africa
cases(I.C.J. Reports 1962, p. 319) and maintains that because the nature,
structure and working of the Trusteeship System is basically different from
the Mandates System under the League of Nations, judicial protection of the
general interests of the inhabitants of the trust territories is no longer
essential.
14. On the part of the Applicant, it is argued that there is nothing in the
wording of Article 19 to justify such a restrictive interpretation and that
the very fact that its broad language ex-pressly refers to "the
interpretation or application of the provisions of the Agreement"
demonstrates clearly that any dispute relating [p 45] to one or more of the
said provisions falls within its purview for adjudication by the Court.
15. While the contention of the Respondent appears plausible because of the
great differences between the Trusteeship System under the Charter and the
Mandates System under the Covenant, it cannot be accepted as generally
correct. The fact that the phrase" any dispute whatever ... relating to the
interpretation or application of the provisions of the Agreement" is
obviously comprehensive and unqualified and is subject only to the
conditions expressly stated in the Article, warrants careful consideration
in drawing any general conclusion on the ground of interpretation.
16. Normally protection of the interests of the inhabitants of trust
territories under the Charter is part of the functions of the General
Assembly with the Trusteeship Council to assist it in the exercise thereof
and, in respect of the strategic areas thereof, comes under the authority of
the Security Council. But the general interest of the United Nations Members
in due performance by the Administering Authority of its undertakings in
the relevant Trusteeship Agreement subsists at the same time. Judicial
protection of these interests is not precluded under Article 19. Though the
occasions for invoking it may be infrequent, it nevertheless exists side by
side with administrative supervision by the General Assembly and the
Trusteeship Council and by the Security Council as the case may be. For
there may well be circumstances, perhaps rare and exceptional, which would
justify another Member of the United Nations to invoke the Court's
jurisdiction for the purpose of assuring protection of the interests of the
inhabitants of the trust territory. For example, when the debate in the
Trusteeship Council or the General Assembly on a particular legal point
relating to the question of conformity or non-conformity of the action of
the Administering Authority with the particular trusteeship agreement and
involving the interpretation or application of its provisions, becomes
protracted and confused with no prospect of an early settlement because of
the impossibility of obtaining a requisite majority vote to approve a
resolution requesting the Court for an advisory opinion on the legal
question, there is nothing in the language of Article 19 to preclude another
Member from bringing the question before the Court in the form of a dispute
with the Administering Authority for judicial determination of the legal
question at issue. Moreover, in view of the basic objectives of the
Trusteeship System as stated in Article 76, such recourse would not only
fall within the purview of an adjudication clause such as Article 19 of the
Trusteeship Agreement under consideration but also would be necessary in
order to expedite a settlement by the General Assembly or the Trusteeship
Council in the interests of the particular trust territory or its
inhabitants.[p 46]
17. It is not correct or justifiable to give such a sweeping
interpretation, as claimed by the Respondent, of the broad terms of Article
19 as would exclude the possibility of another Member of the United Nations
invoking the Court against the Administering Authority in a dispute relating
to the interests of the trust territory or its inhabitants. The character,
purport, structure and working of the Trusteeship System, being different
from those of the Mandates System and resulting in a much broader and more
effective supervision of the administration of the trust territories than in
the case of the Mandates, may render recourse to judicial protection less
necessary but the right of another Member to invoke it, as shown above,
subsists for the intended purpose of protecting the interests of the people
of the trust territory and thereby advancing the basic objectives of the
Trusteeship System prescribed in the Charter.
18. In connection with the question of a legal interest as the indispensable
basis of a justiciable dispute, the Applicant lays emphasis on its
possession of an interest said to be special and individual in character and
different from that of the other Members of the United Nations in addition
to its interest simply as a Member of the United Nations. That this is a
genuine and important interest of the Applicant can be easily appreciated.
But, as such, it is clearly not an interest within the purview of Article
19. On analysis it is found to have been a contingent interest before 11-12
February1961 and dependent for its materialization upon the outcome of the
plebiscite held in the Northern Cameroons on these two days. If the result
of the consultation had been in favour of the alternative" achieving
independence by joining the independent Republic of Cameroon", this interest
would have been satisfied and therefore would have ceased to exist. It has
become a definite interest only since the result of the said plebiscite was
officially proclaimed to have been in favour of joining the independent
Federation of Nigeria. But by that time the people of the Northern Cameroons
had achieved the basic objective of Article 76 b of the Charter and attained
independence. This result was confirmed in due course by resolution 1608
(XV) of the General Assembly of 21 April 1961, which also decided to
terminate on the specified dates the Trusteeship Agreement of 13 December
1946 concerning the Cameroons under United Kingdom administration. The
interest which the Republic of Cameroon now claims to have cannot be of a
legal character; it is only a political interest of its own, falling outside
the scope of Article 19.
III
19. On denying the jurisdiction of the Court the Respondent has also raised
an objection based on the contention that "The Republic of Cameroon was
never a party to the Trusteeship Agree-[p 47]ment and only enjoyed the
benefits of Membership of the United Nations from 20 September 1960", and
that—
"If ... the Republic of Cameroun on and after 20 September, 1960 was
entitled to rely on Article 19 of the Agreement, it is not ... entitled to
rely on matters occurring during the currency of the Agreement prior to 20
September, 1960 to establish a dispute be-fore that date with the United
Kingdom for the purpose of giving the Court jurisdiction. Nor ... in the
event of a dispute sufficient to comply with the requirement of Article 19
arising after 20 September, 1960 is the Republic of Cameroun entitled to
ask the Court to pronounce upon matters which occurred before that date."
20. Manifestly this is an argument based on the principle of ratione
temporis. But the date of admission to Membership is not a crucial date
except that only on and from 20 September 1960 the Republic of Cameroon is
vested with all the rights and obligations of Membership. In other words, on
that day it acquired the status or capacity of Membership to qualify under
Article 19 as "another Member". Once this capacity is acquired, it is
irrelevant as regards any dispute which it raises with the Administering
Authority under the said Article. As to the subject-matter of a dispute, the
right of a Member to raise it is not limited by the date of its admission to
the United Nations. As soon as a State acquires the status of Membership,
its rights and obligations under the Charter must be the same as all the
other Members, and under the Trusteeship Agreement the same as all Members
other than the Administering Authority. No differentiation or distinction
among Members on the basis of their respective dates of admission is
provided for in the Charter or justifiable in principle and practice.
IV
21. The Respondent also contests the applicability of Article 19 in question
and advances the following argument:
"All the complaints made are related to the purpose of falsifying the
plebiscite in the Northern Cameroons. The Trusteeship Agreement did not,
however, provide for its own termination far less for the holding of any
plebiscite preparatory to termination. Questions about the validity of the
plebiscite are not, therefore, related at all either to the application or
to the interpretation of the provisions in the Trusteeship Agreement and
therefore cannot be submitted to this Court under Article 19 of that
Agreement."
A reading of the text of the Application, with the clear enumeration of
seven complaints (a) to (g) which are confirmed in the Memorial, however,
shows that while (d) and (f) relate to the question of observance of General
Assembly resolution 1473, and (g) relates to [p 48] "Practices, acts or
omissions of the local trusteeship authorities ... preceding the plebiscite
and during the elections themselves", the first three complaints (a), (b)
and (c) all relate to specific provisions of the Trusteeship Agreement,
citing Articles 5 and 6 of the Trusteeship Agreement as not having been
observed by the Administering Authority.
22. It is true that no single article of the Trusteeship Agreement provides
for its own termination. But this is necessarily implied, for under Article
3 of the Agreement "the Administering Authority undertakes to administer the
Territory in such a manner as to achieve the basic objectives of the
International Trusteeship System laid down in Article 76 of the United
Nations Charter"; Article 5 (b) confers certain powers on the Administering
Authority in administering the trust territory only "where such measures
are not inconsistent with the basic objectives of the International
Trusteeship System ..."; and Article 6 enjoins the Administering Authority
"to promote the development of free political institutions suited to the
Territory" and "to this end" to take all appropriate measures "with a view
to the political advancement of the inhabitants of the Territory in
accordance with Article 76 ('b) of the United Nations Charter". hen we refer
back to this paragraph, we find it reads as follows:
"(b) to promote the political, economic, social and educational advancement
of the inhabitants of the trust territories, and their progressive
development towards self-government or independence as may be appropriate to
the particular circumstances of each territory and its peoples and the
freely expressed wishes of the peoples concerned...".
23. To ascertain the wishes of the people of a trust territory and enable
them to express them freely, a plebiscite is generally recognized as the
most appropriate mode of procedure to provide for free and secret voting;
and when they vote for independence, their vote, if it is the vote of a
requisite majority, necessarily means in effect also a vote for the
extinction of their status as the inhabitants of a trust territory and
therefore for the termination of the parti-cular trusteeship agreement. This
is what the people of the Northern Cameroons did when the second plebiscite
was held for them to vote on 11-12 February 1961. In practical effect the
attainment of independence or self-government under the Charter and the
achievement of this objective under the Trusteeship Agreement were
synonymous with the termination of the said Agreement, subject only to the
formal endorsement of the General Assembly, which was, in the present case,
duly given by resolution 1608 (XV). It seems reasonable, therefore, to
conclude that the question of the validity of the plebiscite and that of the
termination of the Trusteeship Agreement relate, if strictly speaking not
to the interpretation, [p 49] certainly to the application of the said
Agreement. Accordingly, the objection to the jurisdiction of the Court,
based on the contention that Article 19 of the Trusteeship Agreement does
not provide for its own termination nor for a plebiscite, is not well
founded.
V
24. Another contention of the Respondent to deny jurisdiction in the case is
that "under Article 19 the only disputes which can be submitted to or
considered by this Court are disputes which cannot be settled by
negotiations or other means", and yet "no real attempt was made before 30
May 1961 to settle the dispute(assuming it to have existed) by negotiation";
and that "a proposal to submit the dispute to the Court, like that contained
in the Cameroon Note of 1 May 1961, cannot amount to negotiation; rather the
opposite".
25. In considering this objection, it is to be recalled that both the
Permanent Court and this Court have stated to the same effect that when the
parties to a dispute have both defined their position and have both clearly
indicated that they insist upon their respective views with no possibility
of any modification or compromise, and when a deadlock is thus reached, it
can be reasonably concluded that the dispute cannot be settled by
negotiation. No particular form or procedure of negotiation is required, nor
is any importance to be attached to the duration of such negotiation (Case
of Mavrommatis Palestine Concessions, P.C.I. J., Series A, No. 2, p. 13;
South West Africa cases, I.C.J. Reports 1962, p. 345).
26. In the present case the sharp conflict of views of the two Parties
clearly appeared early in 1961 and efforts were made to resolve it through
the United Nations. The Government of Cameroon, following the announcement
of the results of the plebiscite of 11-12 February 1961, circulated to the
Members of the General Assembly, at the end of March 1961, the so-called
"White Book" already referred to above, and containing "a detailed
exposition of the Cameroonian contentions and of the legal grounds in
support thereof". In essence the complaints set out therein against the
United Kingdom as Administering Authority consisted in alleging want of
"respect for the personality of the Cameroons" and failure to carry out the
recommendations of resolution 1473 (XIV) of 12 December 1959 to take steps
"to secure a wider decentralization of administrative powers and an
effective democratization of the local administration in the northern
portion of the Trust Territory" and "for the administrative separation of
Northern Cameroon and Nigeria, such separation to take effect from 1 October
1960". Besides, there were complaints against "irregularities and absence of
guarantees in the preparation of the plebiscite", "during the [p 50]
plebiscite campaign" and "in the conduct of the plebiscite". The United
Kingdom Government, in a letter addressed to the Chairman of the Fourth
Committee of the General Assembly on 10 April 1961, also mentioned earlier,
stated its views in answer to these complaints. The opposing contentions of
the Parties were again set forth in the discussion and debates in the United
Nations. In a statement in the said Committee, the Minister of Foreign
Affairs of Cameroon complained in detail of the failure of the United
Kingdom as Administering Authority to observe certain provisions of the
Trusteeship Agreement, referring expressly to Articles 3, 5, 6, 7 and 10
therein, Article 76 of the Charter and certain resolutions of the General
Assembly. Negotiation by this recognized method of parliamentary diplomacy
failed to resolve the dispute between the Parties and a deadlock was
reached.
27. There was, moreover, an exchange of diplomatic notes on the
subject-matter of the dispute which took place on 1-26 May 1961 just before
the termination of the Trusteeship Agreement on I June 1961, in respect of
the Northern Cameroons, as decided by resolution 1608. Whether this exchange
can properly be considered as another step of negotiation or merely as
relating to the proposal to refer the dispute to this Court for adjudication
is immaterial. In any event it constitutes a confirmation of the sharp
contrast of the views of the two Parties and the deadlock already reached.
Nothing could be clearer than the resultant impossibility of settling the
dispute by further negotiation, the more especially in view of the earlier
adoption by the General Assembly of resolution 1608 (XV).
VI
27. The said resolution of the General Assembly is a determinant factor in
the present case. It was adopted by a requisite majority at the 995th
Plenary Meeting with the concurrence of the Administering Authority and the
negative vote of the Republic of Cameroon, on a report from the Fourth
Committee in which the questions of the implementation of the results of the
plebiscites held in the northern and southern portions of the Cameroons
under United Kingdom administration and the termination of the Trusteeship
Agreement of 13 December 1946 had been extensively debated. This resolution,
after recalling in its preamble the relevant resolutions it had previously
approved and declaring to have examined the report of the United Nations
Plebiscite Commissioner concerning the two plebiscites held earlier in the
Northern and Southern Cameroons and the report of the Trusteeship Council
thereon, [p 51]
"Endorses the results of the plebiscites that:
(a) The people of the Northern Cameroons have, by a substantial majority,
decided to achieve independence by joining the independent Federation of
Nigeria;
(b) The people of the Southern Cameroons have similarly decided to achieve
independence by joining the independent Republic of Cameroon.
3. Considers that the people of the two parts of the Trust Territory having
freely and secretly expressed their wishes with regard to their respective
futures in accordance with General Assembly resolutions 1352 (XIV) and 1473
(XIV), the decisions made by them through democratic processes under the
supervision of the United Nations should be immediately implemented;
4. Decides that, the plebiscites having been taken separately with differing
results, the Trusteeship Agreement of 13th December 1946, concerning the
Cameroons under United Kingdom administration shall be terminated, in
accordance with Article 76of the Charter of the United Nations and in
agreement with the Administering Authority in the following manner:
(a) With respect to the Northern Cameroons, on 1st June 1961, upon its
joining the Federation of Nigeria as a separate province of the Northern
Region of Nigeria;
(b) With respect to the Southern Cameroons, on 1st October1961, upon its
joining the Republic of Cameroon."
The resolution ends by inviting:
"the Administering Authority, the Government of the Southern Cameroons and
the Republic of Cameroon to initiate urgent discussions with a. view to
finalizing, before 1st October 1961, the arrangements by which the agreed
and declared policies of the parties concerned will be implemented".
29. The arrangements thus prescribed were completed and the decisions of the
General Assembly embodied in the said resolution were duly implemented so
that the Northern Cameroons today forms a part of the sovereign and
independent Federation of Nigeria, just as the Southern Cameroons now
constitutes a part of the sovereign and independent Federal Republic of
Cameroon.
30. It appears clear that the whole matter of the Trusteeship of the
Cameroons formerly under United Kingdom administration has been definitively
and completely settled and the Trusteeship Agreement relating thereto
irrevocably terminated on I June 1961 with respect to the Northern
Cameroons, as already mentioned, and on I October 1961 with respect to the
Southern Cameroons.
31. Now the same resolution 1608 (XV) in settling the whole matter of the
Trusteeship of the Cameroons, by necessary implication and effect, has also
settled the dispute between the present [p 52] Parties. This settlement thus
fulfils the condition of exclusion from the scope of Article 19 prescribed
by the term "settled by ... other means". These words, it will be noted are
a significant addition in Article 19 which is otherwise substantially
identical in wording with the text of Article 12 of the former Mandate
conferred on His Britannic Majesty in respect of the Cameroons. The
resulting situation is that although negotiation between the Parties failed
to settle their dispute, the same was in effect settled by resolution 1608
(XV) just as the Applicant's complaints relating to the alleged
irregularities of the plebiscite of 11-12 February 1961 were resolved by it
in that it instead formally endorsed the result of the plebiscite.
32. It has been contended, however, that the term "settled by... other
means" in Article 19 does not embrace a settlement by an organ of the United
Nations: that, like negotiation, it denotes such other means of direct
settlement between the parties to a given dispute as enquiry, mediation,
conciliation, arbitration, judicial settlement, etc., enumerated in Article
33 of the Charter under Chapter VI on Pacific Settlement of Disputes. But on
referring to this provision it is seen that the various means listed
include" resort to regional agencies or arrangements or other peaceful means
of their own choice". The emphasis here is obviously on the "peaceful"
character of the means to be chosen by the parties for a settlement of their
dispute; and no means of settlement which fulfils this qualification is
precluded before bringing the dispute to the United Nations. In other words
settlement by the General Assembly is one of the implicitly recognized
means. This view is borne out by the record.
33. A debate in a special sub-committee of the Fourth Committee of the
General Assembly took place in December 1946, on a Chinese proposal to amend
the adjudication provision, Article XVI, of the proposed trusteeship
agreement for Western Samoa from New Zealand for approval and a similar
Article in the seven other proposed trusteeship agreements from the United
Kingdom for the Cameroons and from other States for other territories so as
to make it obligatory to bring all disputes under the said provision to the
Trusteeship Council for settlement, and to authorize the Trusteeship Council
to, "if necessary, refer the matter to the International Court of Justice
for an advisory opinion". The proposal was withdrawn after it was made clear
by the other speakers that settlement of a dispute with the Administering
Authority by the Trusteeship Council was not excluded under the proposed
Article for adjudication, but only that "this would occur through the normal
processes of the Trusteeship System rather than through a clause such as the
one proposed by the Chinese representative" (G.A.O.R., 2nd Pt., 1st Session,
Fourth Committee.[p 53] Trusteeship, Part II, Summary Records of Sub. Com.
1, pp. 85-88). This shows clearly that the term "by negotiation or similar
means" was understood by all to include settlement by the Trusteeship
Council, consequently also by the General Assembly. The phrase "by
negotiation or other means" actually embodied in Article 19 of the
Trusteeship Agreement for the Cameroons under United Kingdom Administration
would seem to indicate even a wider range of means for settlement, if that
be possible.
34. The assertion has also been made that any other means of settlement than
negotiation prescribed in Article 19 must be of voluntary choice by the
parties and that the Applicant State in this case by its very act of
invoking the Court to adjudicate on the dispute indicates the absence of
such consent on its part to this means of settlement. But it will be
recalled that not only the Government of the Republic of Cameroon circulated
the "White Book" among the Members of the General Assembly relating to its
complaints against the United Kingdom as Administering Authority of the
Northern Cameroons but also its representatives, includingits Minister for
Foreign Affairs, freely and of its own accord participated in the debates
of the Fourth Committee and the General Assembly on the very questions which
are now described as the subject-matter of the dispute with the Respondent,
and took part in the final vote on resolution 1608. It had obviously
expected a settlement favourable to its own view that the result of the
plebiscite in Northern Cameroons because of the "irregularities" it had
alleged should not be endorsed by the United Nations. Although the actual
outcome of the vote in the General Assembly was a disappointment to it,
there can be no doubt that its choice of this means of settlement was at the
outset entirely voluntary on its part. The fact that the Applicant has more
than once declared its acceptance of this settlement by resolution 1608, as
will be seen later in this statement, further confirms its recognition of
decision by the General Assembly as one of the means of settlement.
35. It has also been contended that resolution 1608 (XV) settled only the
question of implementing the results of the plebiscites and that of
terminating the Trusteeship Agreement but that it did not deal with the
complaint now presented to the Court in the Application of breaches by the
United Kingdom of obligations of the Administering Authority undertaken in
the said Agreement. It is claimed, to quote the language of the Applicant's
Counsel that—
"the discussions which led up to resolution 160s did not bear at all on the
precise question that is submitted to the Court [p 54]today, namely, the
question whether the Administering Authority correctly interpreted and
applied certain provisions of the Trusteeship Agreement."
36. It should be noted, however, that the various complaints stated in the
Application and repeated in the Memorial are substantially the same as
those enumerated in the "White Book", which was circulated to the
representatives of the Members of the United Nations in the General Assembly
towards the end of March 1961, and which was answered by a letter in
rebuttal of the allegations addressed by the United Kingdom representative
to the Chairman of the Fourth Committee on 10 April 1961 and circulated
among the Members of the General Assembly. As has been pointed out earlier,
the issues raised in these two documents were debated in the Fourth
Committee when the same complaints were reiterated by the Minister for
Foreign Affairs of the Republic of Cameroon in the meetings of the said
Committee. These debates were summarized in the report of the Trusteeship
Council to the General Assembly which, in adopting resolution 1608 (XV),
took full note of its contents. The only difference consisted in the
addition in the Observations of the Applicant of Articles 3 and 7 of the
Trusteeship Agreement to the list of provisions alleged to have been
violated by the Administering Authority. This addition, however, does not
alter the general positions taken respectively by the Parties before the
Court nor in any way affect the main issue of jurisdiction now under
consideration.
37. In a word, the essence of the Applicant's contention is that resolution
1608 (XV) cannot be considered as having settled the dispute between
Cameroon and the United Kingdom. ft is asserted that this resolution only
decides the termination of the Trusteeship and does not contain any
provision settling the dispute now before the Court.
38. Of course it may be said that the dispute in question was not settled by
the said resolution, because it is not one with the United Nations but
between two individual States. But this could only be a superficial and
formalistic view. While the parties to the dispute are distinct from the
General Assembly or the body of other Members of the United Nations, the
determinant fact is that the subject-matter of the dispute is identical with
part of the subject-matter of the whole question of the Trusteeship of the
Cameroons finally settled by resolution 1608 (XV). The authorization by the
General Assembly to hold the plebiscites, the endorsement of their results
and the decision to terminate the Trusteeship Agreement of the Cameroons
under United Kingdom Administration constitute a settlement of the whole
matter of the said Trusteeship. This complete series of acts embodied in the
said resolution was manifestly based on the premise that the Administering
Authority had fulfilled 'its obligations it had undertaken toward the trust
territory and its in-[p 55] habitants, as well as toward the United Nations.
It is commonplace to Say that when the whole question of conformity or
non-conformity of the conduct of the Administering Authority with the
provisions of the Trusteeship Agreement has been settled, there can no
longer be any question of conformity or non-conformity with certain
provisions under the same Agreement. The whole must necessarily include the
part.
39. It would be a different matter if the Applicant were complaining of
violations of certain of its individual rights or those of its nationals
under the Trusteeship Agreement. For such a question might not have been
necessarily included in a settlement of all the questions relating to the
promotion of the general interests of the trust territory or its inhabitants
by the Administering Authority inconformity with its obligations under the
Agreement. But the complaints of the Applicant in the present case are
confined to the alleged failure of the United Kingdom to fulfil its
obligations toward the territory and inhabitants of the Northern Cameroons.
The interest of which the Applicant is seeking judicial protection is a
common interest, possessed not only by the United Nations primarily, nor by
the Applicant State alone, but also by every other Member thereof. When all
questions relating to this same common interest have been disposed of and
settled resulting in the achievement of the basic objective of the
Trusteeship of the Cameroons under United Kingdom administration in
accordance with Article 76 (b) of the Charter and the termination of the
Trusteeship Agreement of 13 December1946, it necessarily means that the
subject-matter of the present dispute has in fact been disposed of and
settled at the same time.
40. The reasons for this view are patent and do not call for much
elaboration. When the General Assembly acted to adopt resolution 1608 (XV)
it could not have failed to take account of all the questions and issues
involved. The text of this resolution was originally prepared by the
Trusteeship Council and it was revised in the Fourth Committee as the result
of the discussions therein. As has already been referred to, it was
recommended in its final form to the General Assembly for adoption and
accompanied by a report from the said Committee summarizing the discussions
and the different viewpoints of the delegates bearing not only on the text
of there commended resolution but also on the questions debated including
the views of the representative of the Republic of Cameroon. The fact that
resolution 1608 (XV) did not itself refer to any of the complaints made by
the Government of Cameroon against the Administering Authority does not mean
that in adopting the said resolution the General Assembly was unaware of
either the complaints of the Applicant or its views relating to the conduct
of the United Kingdom in administering the former trust territory of the
Cameroons. [p 56]
41. Moreover, without entering into a discussion of points which belong to
the merits, it should be pointed out that one of the basic objectives of the
Trusteeship System, as expressly provided in Article 76 (h) of the Charter,
is, as has already been noted above, to promote the advancement of the
inhabitants of the trust territories and—
"their progressive development towards self-government or independence as
may be appropriate to the particular circumstances of each territory and its
peoples and the freely expressed wishes of the peoples concerned".
In acting to implement the results of the plebiscites as the freely
expressed wishes of the people of the trust territory of the Cameroons, the
General Assembly was discharging one of its most solemn obligations as it
was also exercising one of its most important functions under Article 85 of
the Charter. It was entitled under this provision to settle all other
matters relating to the administration of a trust territory in subordination
to the early achievement of the stated basic objective, which is the primary
purpose of the Trusteeship System. It would be illogical to assume, as it
would have been self-contradictory for the General Assembly to consider,
that the Administering Authority had failed to observe the obligations
undertaken in the Trusteeship Agreement to promote the development of the
inhabitants of the trust territory towards self-government or independence,
when it was deciding that the basic objective of the Trusteeship had been
achieved by the Administering Authority and that therefore the Trusteeship
Agreement could and should be terminated.
VII
42. The Applicant has further contended that resolution 1608(XV) was adopted
by the General Assembly to settle the question of the Trusteeship of the
Cameroons on the political plane, based upon considerations of political
expediency and realism, and not on the legal plane; and that therefore all
the legal issues, such as those raised by the Republic of Cameroon here,
have remained to be settled judicially by this Court under Article 19 of the
Trusteeship Agreement.
43. This contention, in my view, runs counter to the intent, purpose,
structure and operation of the whole Trusteeship System as provided for in
Chapters XII and XIII of the Charter. The administration and supervision of
all trust territories are placed under the United Nations. The General
Assembly with the co-operation and assistance of the Trusteeship Council
exercises, under Article 85, all the functions of the United Nations with
regard to trusteeship agreements for all areas not designated as strategic.
Since it is therein expressly provided that these functions include the
approval of [p 57] the terms of the trusteeship agreements and of their
alteration or amendment, it goes without saying that they also include the
function of terminating such agreements with the concurrence of the
respective administering authorities, because termination of such
trusteeship agreements is necessarily implied in the achievement of the
basic objective of self-government or independence of every trust territory.
To claim that the General Assembly is not entitled, under the Charter, to
terminate any trusteeship agreement of a non-strategic territory
definitively and finally, including all legal questions which may have been
raised in connection with the problems of termination, would in effect mean
that the General Assembly had no power, notwithstanding the express
provision of Article 85, to settle, once and for all, all matters related to
the trust territory or its inhabitants and that any settlement made by it
must be regarded as provisional and subject to review by this Court in
respect of the legal issues involved in the settlement made by the General
Assembly in exercise of its authorized functions under the Charter. Such a
construction would import a very serious element of uncertainty into every
act of the General Assembly in terminating a trusteeship agreement and tend
to undermine the primary purpose and the basic principles of the Trusteeship
System.
44. That Counsel for the Applicant sees the untenability of the claim as
originally submitted is evidenced by a supplementary explanation in the
following terms:
"Cameroon is not asking the Court to criticize the United Nations; Cameroon
is not asking the Court to Say that the United Nations was wrong in
terminating the Trusteeship; Cameroon is not asking the Court to pronounce
the annulment of resolution 1608. The Court, of course, would not be
competent to do that, any more than the Court would be competent to
reinstitute the Trusteeship or to hammer out a new Trusteeship Agreement.
The situation is, after all, quite simple. The General Assembly's decision
is final, conclusive, in its own sphere."
Later, in the same explanation, it is added:
"The United Kingdom argues and puts forward its objections as if the dispute
related to the question whether the General Assembly was entitled to
terminate the Trusteeship, or whether it did well to terminate the
Trusteeship, in 1961. But that is not the subject of the dispute for no one
denies that it was within the power of the General Assembly, in agreement
with the Administering Authority, to terminate the Trusteeship, just as it
decided to approve the Trusteeship Agreement in 1946. The United Kingdom
argues and puts forward its objections as if we were asking the Court to
reopen the discussion that was closed in the United Nations on 21 , April
1961. If we were asking the Court to do that it would be bound, of course,
to find that it had no jurisdiction, for it does not come [p 58] within the
powers of the judicial organ either to decide to place a territory under
Trusteeship or to decide to terminate a Trusteeship, nor yet again to
reinstitute a Trusteeship régime."
45. This statement clarifies the position of the Applicant on the question
under discussion. There is no doubt that it accepts resolution 1608 (XV)
implementing the results of plebiscites of the peoples of the Northern and
Southern Cameroons and terminating the Trusteeship Agreement of 13 December
1946 as final and conclusive. What, then, is the true nature of the claim?
What is the precise question which the Applicant asks the Court to decide?
The answer is given in the following proposition formulated by the
Applicant's Counsel:
"... there is nothing to prevent the Court, within the framework of its own
attributions, which are judicial attributions, from pronouncing upon the
dispute between Cameroon and the United Kingdom on the question whether,
from the beginning to the end of the Trusteeship, the United Kingdom in its
capacity as Administering Authority, correctly interpreted and applied the
provisions of the Trusteeship Agreement, for that is a dispute which the
General Assembly did not settle in any way".
46. But even thus framed, the question does not justify the Court to assume
jurisdiction. For apart from what has already been shown above that the
settlement of the present legal dispute must have, by necessary implication,
been included in the over-all settlement of the whole Trusteeship of the
Cameroons by resolution 1608 (XV),there are the published proceedings of the
Trusteeship Council and the General Assembly relating to the Trust Territory
of the Cam-eroons, which contain the annual reports of the Administering
Authority, the questionnaires, the petitions from the inhabitants of the
territory, the reports of United Nations visiting missions, those by the
Committee on Administrative Unions, and the resolutions of the Trusteeship
Council and the General Assembly taking note of their contents or
recommending particular measures to the Administering Authority for further
implementation of the provisions of the Trusteeship Agreement with due
regard to the basic objectives of the Trusteeship System. Whether and to
what extent the Administering Authority had, in administering the trust
territory, observed its obligations on a particular question under the
Trusteeship Agreement was considered and debated each year by the
Trusteeship Council and the General Assembly when examining the Annual
Report from the Administering Authority, and appropriate recommendations
were duly made for improvement in the administration.
47. It is also to be noted that in considering the question whether the
Administering Authority did or did not observe its obligations under the
Trusteeship Agreement, the General Assembly and the Trusteeship Council did
not confine their attention to the provisions [p 59]
of the Charter and the Trusteeship Agreement, but also took into account the
recommendations of the successive resolutions previously adopted for the
Administering Authority to carry out. These recommendations were not always
based merely on specific pro-visions of the Trusteeship Agreement; they
often partook of the character of interpreting, modifying or supplementing
the terms of the Trusteeship Agreement. This the General Assembly was
entitled to do under Article 85 of the Charter, and did it all for the
purpose of achieving, and achieving as early as possible, the overriding
aim, the basic objective of the Trust, which was and is the achievement of
self-government or independence for each particular trust territory and its
inhabitants. Thus resolution 226 (III) of 18 November 1948 recommended that
the Administering Authority "take all possible steps to accelerate the
progressive development towards self-government or independence of the Trust
Territories they administer". Resolution 320 (IV) of 15 November 1949
expressed its full support of the Council's recommendations to
administering authorities for the adoption by the latter of measures which
would hasten the advancement of the trust territories towards
self-government or independence in accordance with the objectives laid down
in Article 76 (b) of the Charter. Resolution 558 (VI) of 18 January 1952
called for information concerning measures taken or contemplated towards
self-government or independence, and, inter alia, the estimated period of
time required for such measures and for the attainment of the ultimate
objective. This was reaffirmed by resolution 858 (IX) of 15 December 1955.
The underlying purpose of all these acts was that the administering
authority of each trust territory should faithfully discharge its
obligations under the particular trusteeship agreement and in conformity
with the special resolutions adopted by the Trusteeship Council and the
General Assembly.
48. Also take, for example, the question of administrative unions affecting
trust territories, which forms one of the complaints of the Applicant in the
present case, relating to Article 5 (b) of the Trusteeship Agreement.
General Assembly resolution 224 (III) of 18 November 1948 "endorsed" the
observation of the Trusteeship Council that an administrative union "must
remain strictly administrative in its nature and its scope, and that its
operation must not have the effect of creating any conditions which will
obstruct the separate development of the Trust Territory, in the fields of
political, economic, social and educational advancement, as a distinct
entity". This resolution also recommended, among other measures:
"(c) Request, whenever appropriate, an advisory opinion of the International
Court of Justice as to whether such unions are within the scope of and
compatible with, the stipulations of the Charter [p 60]and the terms of the
Trusteeship Agreements as approved by the General Assembly;
"(d) Invite the Administering Authorities to make available to the Council
such information relating to administrative unions as will facilitate the
investigation by the Council referred to above;
"(e) Report specifically to the next regular session of the General Assembly
on the results of the Council's investigations and the action taken by it."
Resolution 326 (IV) of 15 November 1949—
"Recommends to the Trusteeship Council to complete the investigations,
paying particular attention to the following:
…………………………………………………………………………………………
(b)The desirability, should it be impossible as a consequence of the
establishment of an administrative union to furnish clear and precise
separate financial, statistical and other data relating to a Trust
Territory, of the Administering Authority concerned accepting such
supervision by the Trusteeship Council over the unified administration as
the Council may consider necessary for the effective discharge of its high
responsibilities under the Charter..."
The same resolution recommended the Trusteeship Council—
"to complete its investigation, in accordance with the terms of General
Assembly resolution 224 (III) and of the present resolution, and present a
special report to the next session of the General Assembly on the results of
its investigation and the action taken by it, with particular reference to
any safeguards which the Council may consider it necessary to request of
the Administering Authorities concerned, and that the Council continue
likewise to observe the development of such unions and to report to the
General Assembly at its regular sessions".
49. The above-mentioned resolutions of the General Assembly were followed by
other resolutions in succeeding years on the same subject of administrative
unions affecting trust territories such as resolution 648 (VII) of 20
December 1952, which is one of the most comprehensive acts of the General
Assembly and which lists "Factors which should be taken into account in
deciding whether a Territory is or is not a Territory whose people have yet
attained a full measure of self-government" with an annex of "Factors
indicative of the attainment of independence or of other separate systems of
self-government". Resolution 1473 (XIV) of 12 December 1959 dealt specially
with the Trust Territory of the Cameroons under United Kingdom
Administration in respect of the Northern part of the Territory. Among other
provisions, it: [p 61]
"6. Recommends that the necessary measures should be taken without delay for
the further decentralization of governmental functions and the effective
democratization of the system of local government in the northern part of
the Trust Territory.
7. Recommends that the Administering Authority should initiate without
delay the separation of the administration of the Northern Cameroons from
that of Nigeria and that this process should be completed by 1st October,
1960.
8. Requests the Administering Authority to report on the process of
separation to the Trusteeship Council at its twenty-sixth session, and
requests the Council to submit a report on this matter to the General
Assembly at its fifteenth session."
50. Resolution 1608 (XV) of the General Assembly of 21 April 1961 endorsing
the results of the plebiscites for the Northern and Southern portions of the
Trust Territory of the Cameroons under United Kingdom Administration was
only the culminating act of a series of other resolutions dealing with
various questions of legal as well as political and administrative
character, always with a view to the speedy achievement of the basic
objective of the Trustee-ship and its early termination.
51. Therefore, when the ultimate objective of a Trust is attained, and the
particular Trusteeship Agreement is terminated, all questions relating to
the Administering Authority's observance of the obligations thereunder are
obviously intended to have been settled also. Doubtless this was the
intention and purpose of resolution 1608 (XV), which is a legally valid act
of the competent body.
VIII
52. What the Applicant asks the Court to do is, in fact, to sort out certain
legal points relating to the administration of the former Trust Territory of
the Cameroons under United Kingdom Administration, dissociate them from the
over-al settlement of the whole question of the Trusteeship including the
termination of the Trusteeship Agreement, and to adjudge and declare that
formerly in administering the trust territory, the United Kingdom failed to
observe certain obligations it had undertaken in the said Agreement. In
other words, the Court is asked to render a declaratory judgment pronouncing
on legal issues which, though alleged to be relating to the interpretation
or application of the Trusteeship Agreement, had in fact been considered in
substance by the General Assembly from year to year in the past, and had
formed the subject-matter of action taken by it in the form of
recommendations or decisions. Moreover, the said Trusteeship Agreement on
which the complaints of the Applicant are based, had been validly
terminated, and the trust territory concerned had been declared to have
attained independence in accordance with the freely expressed wishes of its
inhabitants.[p 62]
53. The cases cited by Counsel of the Applicant in support of the plea for a
declaratory judgment do not in fact support it. Just consider the more
important of these cases and it will at once be seen that the judgments or
advisory opinions respectively given by the Court therein, while they may be
or are declaratory in character, all relate to a controversy or dispute
involving an existing legal right or interest and bear a direct and
determining effect on the legal position of the parties at issue.
54. Thus as regards the case concerning Certain German Interests in Polish
Upper Silesia (P.C.I. J., SeriesA, No. 6), although the court overruled
"the objection based on the abstract character of the question" and referred
to "numerous clauses giving the Court compulsory jurisdiction in questions
of the interpretation and application of a treaty, and these clauses, among
which is included Article 23of the Geneva Convention, appear also to cover
interpretations unconnected with concrete cases of application", the
Judgment actually given by the Court in the case, though in the form of a
declaration of the law involved, bore directly on, and was meant to settle,
the disputes between the parties concerning the legal position of German
property, rights and interests in Upper Silesia. The interpretation of the
relevant provisions of a treaty asked of the Court could not have had more
concrete cases for application.
55. This fact, in essence, is equally true of the Judgment in the case of
Chorz6ze, Factory (Jurisdiction) (P.C.I.J., Series A, No. g),which stated:
"It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form. Reparation
is the indispensable complement of a failure to apply a convention and there
is no necessity for this to be stated in the Convention itself."
The foregoing declaration may appear to be in abstract form but it gives a
legal construction of an international convention then still in force, to be
applied forthwith to a concrete case, concerning the right of ownership of
Chorzów Factory, which had been settled along with the other claims in
favour of the Applicant in the case of Certain German Interests in Polish
Upper Silesia.
56. The decision of the Permanent Court in the case of the Interpretation
of the Statute of the Memel Territory related to a live, even acute, dispute
between the United Kingdom, France, Italy and Japan on the one part and the
Lithuanian Republic on the other "as to whether certain acts of the latter
Government are in conformity with the Statute of the Memel Territory
annexed to the Convention of May 8, 1924, concerning Memel". It is true that
although the Court drew attention "to the inconvenience" resulting from the
fact that certain questions "are formulated as questions purely in
abstracto, without any reference to the facts of the dispute [p 63] which
has arisen", it nevertheless assumed jurisdiction and adjudicated on all
the six questions submitted by the Applicants. But this was done not only to
resolve a confused and disturbing situation in the territory but also to
meet—
"the intention of the Four Powers ... to obtain an interpretation of the
Statute [of the Memel Territory] which would serve as a guide for the
future". (P.C.I.J., Series A/B, No. 49, p. 337.)
In other words, though the Court considered certain questions submitted to
it were put in abstract form it did not refrain from passing on them
judicially, because they were intended to serve very practical purposes in
the concrete situation.
57. Likewise, the Corfu Channel case upon which the Applicant places much
reliance to uphold its submission for a declaration of non-observance by the
Respondent of certain obligations it had assumed as Administering Authority
under the Trusteeship Agreement of 13 December 1946, does not lend support
to its claim. The Court in giving "judgment that ... the United Kingdom
violated the sovereignty of the People's Republic of Albania, and that this
declaration by the Court constitutes in itself appropriate satisfaction"
(I.C.J. Reports 1949, p. 36) discharged its judicial function to settle a
concrete dispute relating to a serious, unresolved situation both of fact
and law.
58. This is equally true of the Fisheries case (I.C.J. Reports 1951) and the
Haya de La Torre case. In the latter case, after referring to its Judgment
in the Asylum case with the finding that "the grant of asylum by the
Colombian Government to Victor Raul de la Torre was not made in conformity
with Article 2, paragraph 2,... of [the Havana] Convention",
"the Court observes that the Judgment confined itself ... to defining the
legal relations which the Havana Convention had established between the
Parties. It did not give any directions to the Parties and entails for them
only the obligation of compliance therewith" (Haya de la Torre, I.C.J.
Reports 1951, p. 79).
This Judgment, though it took the form of a declaration defining the legal
relations of the parties under the Havana Convention, was clearly intended
to resolve the pending dispute before the Court between Peru and Colombia.
True, it did not give any directions as to how the asylum might be
terminated but there can be no doubt that in the Court's view it should and
could be terminated. For the same Judgment made clear that it was not for
the Court to make a choice "amongst the various courses by which the asylum
may be terminated", since—[p 64]
"these courses are conditioned by facts and possibilities which, to a very
large extent, the Parties alone are in a position to appreciate. A choice
amongst them could not be based on legal considerations, but only on
considerations of practicability or political expediency; it is no part of
the Court's judicial function." (Ibid.)
Thus there can be no question but that the declaratory judgment was made in
the case because it was intended to serve the practical purpose or need of
putting an end to the asylum by clarifying the legal relations of the
parties under the Havana Convention and leaving the choice of the means of
compliance to the parties. The issues leading to the Judgment were far from
abstract or academic in character.
59. Although this Court is not precluded either under international law or
under its own Statute from pronouncing a declaratory judgment, the present
case is not one which falls within its judicial function. While it may be
true that a declaratory judgment is not concerned with the question of
possibility of implementation or any practical effect, this rule, if it be a
rule, certainly does not mean that the Court is bound to render a
declaratory judgment even though it could only be one of the nature of an
academic pronouncement or a moot decision. No declaratory judgment is called
for where an Application asks for it, as in the present case, only with
reference to a legal issue or issues which have already been settled or
which relate only to facts or situations which have ceased to be capable of
giving rise to a dispute in future in a similar state of legal relations. In
other words, respect is due from the Court to the situation which now
obtains in regard to the former Trusteeship of the Cameroons under United
Kingdom Administration and the terminated Agreement of 13 December 1946,
in-volving, as it does, facts which make it impossible for the Court to
render judgment FN1.
----------------------------------------------------------------------------------------------------------------FN1
See Judge Winiarski's Dissenting Opinion in the case of Interpretation of
Peace Treaties, I.C.J. Reports 1950, p. 92.
----------------------------------------------------------------------------------------------------------------
60. For the reasons I have stated, I conclude that the Court should decline
to assume jurisdiction to hear the merits of the instant case.
(Signed) Wellington Koo.
[p 65] SEPARATE OPINION OF JLDGE SIR PERCY SPENDER
The central issue in this case is, in my opinion, whether the dispute
alleged by the Republic of Cameroon is a dispute within the meaning of the
adjudication clause; Article 19 of the Trusteeship -Agreement. Since I
reach the conclusion that the dispute alleged is not a dispute within the
meaning of that Article, the Court is, in my opinion, without jurisdiction.
This Court in 1962 had occasion in the South West Africa cases FNl to
consider an adjudication clause which was contained in the Mandate
Instruments under the Covenant of the League of Nations, a clause which in
all essentials—apart from one matter to which reference will later be
made—was the same as that set out in Article 19 of the Trusteeship Agreement
the subject of consideration in this case. The very core of the Court's
reasoning which led it to give to the adjudication clause in the South West
African Mandate the all-embracive interpretation it did was, in my view,
that that clause was inherently necessary, was essential to the functioning
of the Mandate System and the exercise of the Mandate, in order to ensure
the performance by the Mandatory Power of its obligations to the peoples of
the Mandated Territory as set forth in the Mandate Instrument. The clause,
in the Court's opinion, thus provided an essential judicial security for the
performance of these obligations. These considerations led the Court to
conclude that the adjudication clause in the Mandate Instrument covered not
only disputes between a State, a Member of the League, and the Mandatory
Power in relation to provisions of the Mandate Instrument where-under
individual rights or interests were conferred upon States, Members of the
League or their nationals, but also the provisions thereof which imposed
general obligations upon the Mandatory Power in the interests of the people
of the Mandated Territory-— the obligations to carry out the "sacred trust"
imposed upon and undertaken by it.
----------------------------------------------------------------------------------------------------------------FN1
I .C.J. Reports 1962, p. 319.
----------------------------------------------------------------------------------------------------------------
In the present case the context of the adjudication clause—Article 19 of the
Trusteeship Agreement—is not the same as it was in the South West Africa
cases, though it is in all essential wording the same. In the South West
Africa cases the clause had to be interpreted in the context of the Covenant
of the League and the terms of the Mandate Instrument; in the present case
it must be interpreted in[p 66] the context of the International Trusteeship
System established under the Charter of the United Nations and the terms of
the Trusteeship Agreement itself. Moreover, much of the foundation upon
which the Court erected its reasoning in the cases of South West Africa in
the instant case crumbles away; the Court in those cases itself recognizing
that the necessity for the adjudication clause—essentiality—which was stated
by it to characterize the clause in the Mandate System disappeared under the
International Trusteeship System of the United Nations; it was "dispensed
with" by the terms of the Charter FN1.
----------------------------------------------------------------------------------------------------------------FN1
I.C.J. Reports 1962, at 342.
----------------------------------------------------------------------------------------------------------------
My colleague, Judge Sir Gerald Fitzmaurice, and I disagreed with the
reasoning of the Court as well as with the interpretation it placed upon the
adjudication clause in the Mandate Instruments, and we expressed Our view at
length. Although a great deal of what we then had to Say is directly
applicable to the interpretation to be accorded to the adjudication clause
in this case—in particular we rejected the view that the adjudication clause
was either essential or necessary to the Mandate System or the Mandate
Instrument— none the less, since the task of interpretation in this case is
not the same as that which faced the Court in the South West -Africa cases,
it would, I think, be neither sufficient nor satisfactory to refer in
general to the reasoning then advanced by my colleague and myself and
content myself with a brief presentation of my views in the case. I think it
advisable to express in some detail the reasons which lead me, in this case,
to the conclusion that the dispute alleged by the Applicant is not a dispute
within the meaning of Article 19 of the Trusteeship Agreement before the
Court.
***
The Broad Issues to Be Determined
The Applicant alleges breaches by the Respondent of Articles 3, j, 6 and 7
of the Trusteeship Agreement. The breaches alleged are riot particularized
except under heads of "complaints" in the Application and Memorial. The
Articles above mentioned express in broad and general terms obligations
undertaken by the Administering Authority with the United Nations to
administer the Territory in such a manner as to achieve the basic
objectives of the International Trusteeship System laid down in Article 76
of the United Nations Charter (and to this end the Administering Authority
undertook to collaborate fully with the General Assembly and the Trusteeship
Council on the discharge of their functions) (Article 3): to promote the
development of free political institutions suited to the Territory and
assure its inhabitants an increasing share in [p 67] administrative and
other services and develop their participation in government as might be
appropriate to the particular circumstances of the Territory and its
people, special regard being had to the provisions of Article 5 (a) of the
Trusteeship Agreement (Article 6): and to apply in the Territory, inter
alia, recommendations already existing or thereafter drawn up by the United
Nations which might be appropriate to the particular circumstances of the
Territory and conduce to the achievement of the basic objectives of the
International Trusteeship System (Article 7). Article 5 (a), to which
reference is made above, provided that for all purposes of the Trusteeship
Agreement the Administering Authority should have full powers of
legislation, administration and jurisdiction and should administer the
Territory in accordance with the Authority's own laws as an integral part of
its territory "with such modification as may be required by local
conditions" and subject to the provisions of the United Nations Charter and
of the Trusteeship Agreement.
Though the Applicant alleges breaches generally of the provisions of the
Trusteeship Agreement no other specific provision of the same is adverted to
by the Applicant or referred to in its "complaints", which constitute, as
its Application States, the subject-matter of its dispute with the
Respondent Government, other than Article 5 (b) which provides that the
Administering Authority should be entitled, inter alia, to constitute the
Territory into an administrative union or federation with adjacent
territories under its sovereignty or control and to establish common
services between such territories and the Trust Territory where such
"measures" were not inconsistent with the basic objectives of the
International Trusteeship System or with the terms of the Trusteeship
Agreement.
The gist of the complaints of the Applicant Government may be stated as
follows: the objective of development of free political institutions, etc.,
has not been achieved; this it is alleged was a breach of Article 3 of the
Agreement: the Northern Cameroons had been administered as an integral part
of Nigeria and not as a distinct territory; this is alleged to have been a
breach of Article 5 (b) of the Agreement: the Trust Territory had been
administered in two separate parts, the Southern and Northern Cameroons with
two administration systems and following, it is asserted, separate courses
of political development; this is alleged to be contrary to a "rule of
unity" presumably inherent in the Trusteeship Agreement. These breaches are
further alleged to have continued from 1946 onwards and are stated to have
deployed their effects in a continuous manner up to the time of the
plebiscite held in the Northern Cameroons in February 1961 preventing
consultation with the people sufficient to satisfy the requirements of the
Trusteeship Agreement, as a result of which plebiscite the Trusteeship
Agreement was brought to an end before the objectives of Article 76 of the
Charter had been achieved. Thus, it is said, Northern Cameroons became part
of the State of Nigeria. [p 68]
Four additional complaints are set forth in the Application three of which
relate to alleged breaches of a resolution of the General Assembly 1473 of
12 December 1959, the remaining one dealing with certain alleged practices,
acts or omissions of "the local Trusteeship Authorities" during the period
preceding and during the plebiscite; which it is further alleged prevented a
free and unfettered expression of opinion. All of these four additional
complaints are asserted to be in conflict with the Trusteeship Agreement
FN1.
----------------------------------------------------------------------------------------------------------------FN1
See in particular Articles 3 and 7 of the Trusteeship Agreement.
----------------------------------------------------------------------------------------------------------------
The Applicant State does not seek any specific redress in relation to the
alleged breaches of the Trusteeship Agreement complained of; it seeks only a
declaration of the law.
It will thus be seen that the dispute alleged to exist between the Applicant
and the Respondent relates exclusively to the general obligations of the
Respondent under the Trusteeship Agreement undertaken by it with the United
Nations to achieve the objectives of the International Trusteeship System
established by the Charter in the interests of the people of territories who
had not yet attained self-government or independence.
To what Extent Does the Recent Decision of this Court in the South West
Africa Cases Bear upon the Present Case?
In the South West Africa cases the view of the Court that Article 7 of the
Mandate Instrument was inherently necessary or essential to the functioning
of the Mandate System, giving effect to the concept of what has been termed
the "judicial protection of the sacred trust", was of the very heart of the
Court's reasoning. This view found its first expression in the Judgment when
the Court was dealing, not with the question of what was a dispute within
the meaning of Article 7 of the Mandate, but with the question raised by the
Second Objection of the Union of South Africa which centred on the term
"another Member of the League of Nations..." in that Article. The Union of
South Africa had claimed that Ethiopia and Liberia did not have the status
required by the Article to invoke the jurisdiction of the Court since
neither was any longer a Member of the League of Nations. The Court, after
stating that this contention was claimed to be based upon the natural and
ordinary meaning of the words "another Member of the League of Nations", did
not, as I understand the Judgment, deny that the natural and ordinary
meaning of the words were as contended for by the Union of South Africa. It
stated that the rule of interpretation that recourse should [p 69] be had,
in the first place, at least, to the ordinary and natural meaning of words
was not an absolute rule of interpretation and then proceeded to observe
that—
"Where such a method of interpretation results in a meaning incompatible
with the spirit, purpose and context of the clause or instrument in which
the words are contained, no reliance can be validly placed on it" (I.C.J.
Reports 1962, at 336).
The Court then proceeded to state its reasons why reliance, in the light of
this observation, could not be placed upon the natural and ordinary meaning
of the words in question. The centre of its reasons was the assertion that
"judicial protection of the sacred trust in each Mandate was an essential
feature of the Mandates System"; the administrative supervision by the
League was "a normal security" to ensure full performance by the Mandatory
of the "sacred trust" but "the specially assigned role of the Court was even
more essential FN1, since it was to serve as the final bulwark of protection
by recourse to the Court against possible abuse or breaches of the Mandate"
FN2; for without this additional security, the Court went on to Say, the
supervision by the League and its Members could not be effective in the last
resort since supervision by the League Council was subject to the rule of
unanimity of its Members, including the approval of the Mandatory itself. In
the event of a conflict between the Mandatory and other Members of the
Council, in the last resort, the Court continued, "the only course left to
defend the interests of the inhabitants FN1 in order to protect the sacred
trust would be to obtain an adjudication by the Court...". This, it said,
could only be achieved by a State a Member of the League invoking the
adjudication clause in the Mandate Instrument.
----------------------------------------------------------------------------------------------------------------FN1
Emphasis added.
FN2 I.C.J. Reports 1962, at 336.
----------------------------------------------------------------------------------------------------------------
"It was for this all-important purpose FN1 that the provision was couched in
broad terms embracing 'any dispute whatever' FN1... It is thus seen what an
essential part FN1 Article 7 was intended to play as one of the securities
in the Mandates System for the observance of the obligations by the
Mandatory..." (I.C.J. Reports 1962, at 337.)
Moreover, the Court added, this "essentiality of judicial protection for
the sacred trust", the right to implead the Mandatory before the Permanent
Court, was "specially and expressly" conferred upon the Members of the
League "evidently also because it was the most reliable procedure of
ensuring protection by the Court, whatever might happen to or arise from the
machinery of administrative supervision FN3.
----------------------------------------------------------------------------------------------------------------
FN1 Emphasis added.
FN3 Ibid., at 337-338.
----------------------------------------------------------------------------------------------------------------
There was, the Court said, an "important difference" in the structure and
working of the system of supervision of mandated [p 70] territories under
the League and that of trust territories under the United Nations, namely
that the unanimity rule in the Council of the League had under the Charter
been displaced by the rule of a two-thirds majority. This observation of the
Court was directed to meet an argument that Article 7 was not an essential
provision of the Mandate Instrument for the protection of the sacred trust
of civilization, in support of which argument attention had been called to
the fact that three of the four "C" Mandates when brought under the
trusteeship provisions of the Charter of the United Nations did not contain,
in the respective trusteeship agreements, any adjudication clause. It was in
the course of dealing with this argument that a statement of the Court,
greatly relied upon by the Respondent in this case to distinguish the
present case from that of South West Africa, was made. The Court's statement
was as follows:
"Thus legally valid decisions can be taken by the General Assembly of the
United Nations and the Trusteeship Council under Chapter XIII of the Charter
without the concurrence of the trustee State and the necessity FN1 for
invoking the Permanent Court for judicial protection which prevailed under
the Mandates System is dispensed with under the Charter FN1.” FN2
-------------------------------------------------------------------------------------------------------FN1
Emphasis added.
FN2 I.C.J. Reports 1962, at 342.
-------------------------------------------------------------------------------------------------------
In the Dissenting Opinion of myself and Judge Sir Gerald Fitzmaurice in
those cases there appear the reasons why we were unable to agree with this
reasoning of the Court, and there is no need to repeat them here. It is
sufficient for the moment to note the reasoning of the Court and to observe
that it was directed to establishing that in the events which happened there
arose out of a debate in the Assembly of the League, on the eve of its
dissolution, a unanimous agreement among all Member States that the Mandate
should be continued to be exercised after the dissolution of the League of
Nations in accordance with the obligations defined in the Mandate
Instrument, including that of the Mandatory under the adjudication clause;
that this specific obligation survived and necessarily involved reading into
the clause the words "Members of the United Nations" in place of the words
"Members of the League of Nations".
It is evident that the view of the Court was—and with this I am in full
accord—that in a trusteeship agreement under the provisions of the Charter
of the United Nations an adjudication clause is not inherently necessary or
essential to secure the observance of the general obligations of the
Administering Authority undertaken by it in the interests of the
inhabitants.
When later in its Judgment the Court turned to the examination of the Third
Preliminary Objection of South Africa which the Court said consisted
essentially of the proposition that the dispute brought [p 71] before the
Court was not a dispute as envisaged in Article 7 of the Mandate, again the
thesis of "essentiality" of the adjudication clause in the Mandate
Instrument was to the fore of the Court's approach; it was indeed of its
essence. Having already asserted and developed the thesis earlier in its
Judgment, it returned to and reasserted it. The adjudication clause in the
Mandate Instrument was "clearly in the nature of implementing one of the
'securities FN1 for the performance of this trust', mentioned in Article 22,
paragraph 1" of the Covenant of the League.
----------------------------------------------------------------------------------------------------------------FN1
Emphasis added.
----------------------------------------------------------------------------------------------------------------
"The right to take legal action conferred by Article 7 ... is an essential
FN1 part of the Mandate itself and inseparable from its exercise FN1..
While Article 6 of the Mandate ... provides for administrative supervision
by the League, Article 7 in effect provides, with the express agreement of
the Mandatory, for judicial protection FN1 by the Permanent Court by vesting
the right of invoking the compulsory jurisdiction against the Mandatory for
the same purpose FN1...FN2"
-------------------------------------------------------------------------------------------------------
FN1 Emphasis added.
FN2 I.C.J. Reports 1962, at 344.
-------------------------------------------------------------------------------------------------------
Taking the view the Court did throughout its Judgment of the purpose and
function of the adjudication clause—of its inherent necessity, of its
essentiality, as part of the Mandate System, and its inseparability from the
exercise of the Mandate itself, it is understandable, perhaps inevitable,
that in interpreting the adjudication clause in the Mandate Instrument it
gave to it the wide and all-embracive interpretation it did. There can, I
think, be no doubt whatever that the Court's thesis of the purpose the
clause was intended to serve completely controlled its interpretation
thereof. To the rest of the Article the Court applied, it said, the rule of
the natural and ordinary meaning of the words which rule it had found
reasons to disregard when dealing with the Second Objection. The words upon
which the emphasis was laid in interpreting the rest of the adjudication
clause in the Mandate Instrument were the same words which appear in the
adjudication clause with which we are presently concerned, namely "any
dispute whatever" and "relating to the interpretation or the application of
the provisions of" the Mandate Instrument.
It is important to quote what the Court said in fullFN3. It said:
----------------------------------------------------------------------------------------------------------------FN3
Ibid., at 343.
----------------------------------------------------------------------------------------------------------------
"The language used is broad, clear and precise: it gives rise to no
ambiguity and it permits of no exception. It refers to any dispute whatever
relating not to any one particular provision or provisions, but to 'the
provisions' of the Mandate, obviously meaning all or any provisions, whether
they relate to substantive obligations of the Mandatory toward the
inhabitants of the Territory or toward the other Members of the League or to
its obligation to submit to supervision by the League under Article 6 or to
protection under[p 72] Article 7 itself. For the manifest FN1 scope and
purport of the provisions of this Article indicate that the Members of the
League were understood FN1 to have a legal right or interest FN1 in the
observance by the Mandatory of its obligations both toward the inhabitants
of the Mandated Territory, and toward the League of Nations and its
Members."
-------------------------------------------------------------------------------------------------------FN1
Emphasis added.
-------------------------------------------------------------------------------------------------------
It is upon this pronouncement of the Court that the Applicant rests its
contention that the dispute in this case is one which comes within the
content of Article 19 of the Trusteeship Agreement.
In the Joint Dissenting Opinion of Judge Sir Gerald Fitzmaurice and myself
we gave Our reasons, with the great respect which is due to the Court, not
only for thinking that the Court had erred in its thesis of "essentiality",
"inherent necessity" and "inseparability", but also why we thought, read in
their context, the words of Article 7 of the Mandate Instrument revealed an
ambiguity which precluded that Article being interpreted in the manner the
Court did. However, whether the Court was or was not right in the
interpretation which it accorded Article 7 of the Mandate Instrument, it
is, I think, abundantly evident that that interpretation cannot
automatically be applied to the adjudication clause in the present case. The
thesis of "essentiality", etc., can find no place in this case FN2. Moreover
the context in which Article 19 of the Trusteeship Agreement must be
interpreted is different to the context in which Article 7 of the Mandate
had to be interpreted.
----------------------------------------------------------------------------------------------------------------FN2
See in particular I.C.J. Reports 1962, at 342.
----------------------------------------------------------------------------------------------------------------
However the reasoning of the Court in the South West Africa cases is looked
at, the interpretation it accorded the adjudication clause in that case has,
I believe, little judicial authority in the determination of the meaning of
Article 19 in this case.
***
None the less that interpretation is now sought to be applied—lifted and
transposed—to the adjudication clause in the present case; the words of
Article 19 of the Trusteeship Agreement being the same in all essentials as
the adjudication clause in the Mandate Instruments the language of which
was said by the Court to be "broad, clear and precise" and permitting of "no
exception", the same interpretation it is contended, must be applied to
Article 19.
This line of reasoning is inadmissible. What is necessary to be done is to
interpret Article 19 of the Trusteeship Agreement in its context and in the
light of the surrounding circumstances at the time [p 73] the Agreement was
entered into. The Applicant hardly directed itself to this task but relied,
in the main, upon the Court's view in the South West Africa cases that the
adjudication clause admitted of no exception, thus it extended to cover the
invocation of the Court's jurisdiction not only in the interests of the
inhabitants, which was a central consideration in the Court thesis in the
South West Africa cases, but also in the interests of a State itself, as the
Applicant is asserting a right to do in the present case.
It will be my task to examine Article 19, not merely as a clause containing
certain words, but in its context and surrounding circumstances in order to
ascertain the intention of the two Parties to the Trusteeship Agreement—the
United Nations and the Respondent—in relation to that Article, and to
demonstrate that the Applicant's contention is ill founded.
Article 19 of the Trusteeship Agreement
Article 19 reads as follows:
"If any dispute whatever should arise between the Administering Authority
and another Member of the United Nations relating to the interpretation or
application of the provisions of this Agreement, such dispute, if it cannot
be settled by negotiation or other means, shall be submitted to the
International Court of Justice provided for in Chapter XIV of the United
Nations Charter."
***
The Applicant's contentions, reduced to essentials, may be stated thus. Upon
becoming a Member of the United Nations such rights as are accorded by
Article 19 to States Members thereof became vested in it; it was thereupon
entitled to invoke the jurisdiction of this Court, not only in relation to
disputes thereafter arising between itself and the Administering Authority
concerning alleged breaches of the provisions of the Trusteeship Agreement
subsequently occurring, but also in relation to any dispute thereafter
arising concerning breaches alleged to have occurred at any time
antecedently without limitation of time; that right is not restricted to
failure to perform obligations assumed by the Administering Power under the
provisions of the Trusteeship Agreement which confer upon it and other
States, Members of the United Nations, or their nationals individual rights
or interests but extends so as to cover any failure by the Administering
Authority to observe its general obligations towards the inhabitants of the
trust territory and towards the United Nations; that it is entitled to
invoke the jurisdiction of this Court in respect of the provisions of the
Agreement relating to these last-mentioned obligations not only in defence
of the interests of the inhabitants of the trust territory but separately [p
74] and independently in its own right; that it may seek from the Court a
declaratory decree that this or that breach has occurred and that the Court
is not only entitled to declare that such a breach occurred, but is bound to
do so notwithstanding that the trust agreement has already come to an end
and notwithstanding any resolution of the General Assembly or any conduct on
its part vis-à-vis the Administering Authority in relation to the carrying
out of the provisions of the Trusteeship Agreement.
***
It becomes therefore necessary to interpret Article 19 of the Trusteeship
Agreement in order to ascertain what meaning is to be accorded the words
"any dispute whatever ... relating to ... the provisions of this Agreement",
etc., and in particular to ascertain whether the dispute alleged by the
Applicant is one which falls within the ambit of this Article.
The Context in which Article 19 Must Re Interpreted
It is not possible to interpret Article 19 as if it were a separate
instrument, comparable, for example, to a declaration of a State accepting
the compulsory jurisdiction of the Court under Article 36 (2) of the Statute
of the Court, yet this, in my opinion, is precisely what is attempted to be
done in the present case. What may appear clear in such an exercise may
become very unclear when an adjudication clause is read in its context.
The context in which Article 19 must be read is the Trusteeship Agreement of
which it forms part, and the International Trusteeship System established
by Chapter XIII of the Charter of the United Nations of which the
Trusteeship Agreement is part and with which its provisions are interwoven.
Moreover the provisions of Chapter XIII of the Charter and the international
system which it established form the background and part of the surrounding
circumstances in which the Trusteeship Agreement was entered into, without
an appreciation of which it is, in my view, quite impossible to ascertain
the intention of the Parties to the Trusteeship Agreement in relation to
Article 19.
It is convenient first to consider the provisions of Chapter XIII of the
Charter particularly since the Trusteeship Agreement incorporates and
refers to such provisions, and contains, as do all trusteeship agreements,
an obligation on the part of the administering authority, which is indeed
the dominant obligation to be found in the Trusteeship Agreement, so to
administer the territory as to achieve the objectives of Article 76 of the
Charter. [p 75]
Trusteeship System—Chapter XIII of the Charter
When the trusteeship was negotiated and entered into the League of Nations
had come to an end. A new organization had been set up: the United Nations.
To carry out the purposes of its Charter there were established six
principal organs, three of which were the General Assembly, the Trusteeship
Council and this Court. The Charter called for the establishment of an
international trusteeship system for the administration and supervision of
such territories as might be placed thereunder by voluntary agreement. "The
functions of the United Nations with regard to trusteeship
agreements”—except such as might relate to strategic areas— including their
approval, were exercisable by the General Assembly and by the General
Assembly alone FN1. The Trusteeship Council, operating under the authority
of the General Assembly was charged with the duty of assisting the General
Assembly in carrying out the functions of the United Nations, including that
of the supervision of the administration of the Trust Territory. It was (so
to speak) the organ established to police the execution of the provisions of
the Trusteeship Agreement to ensure that the basic objectives of the
Trusteeship System in respect of each Trusteeship Agreement were achieved,
reporting from time to time direct to the General Assembly on the discharge
of its duties.
----------------------------------------------------------------------------------------------------------------FN1
Article 85 of the Charter. 64
----------------------------------------------------------------------------------------------------------------
The conclusion must be that the Charter contemplated that these two
principal organs—the General Assembly and the Trusteeship Council—and only
these two organs should police the execution and carrying out of the
objectives of the International Trusteeship System and of the provisions in
any Trusteeship Agreement directed to this end, and by their supervision of
the administration of territories by the Administering Authorities and of
the obligations undertaken by them in Trusteeship Agreements, by
questionnaires formulated by the Trusteeship Council on the political,
economic, social and educational advancement of the inhabitants of each
Trust Territory within the competence of the General Assembly (to which
questionnaires the Administering Authorities were bound to respond), by
scrutinising the answers thereto, by considering the reports submitted by
Administering Authorities, by accepting petitions, by periodic visits to the
Trust Territories and by other action taken in conformity with the terms of
Trusteeship Agreements, to ensure that the obligations of each
Administering Authority in relation to the achievement of the basic
objectives of the Trusteeship System were being fulfilled.
It must have been evident, even to those unacquainted with the difficulties
of administering Trust Territories, that problems of administration and
differences of opinion in relation thereto would, [p 76] at times,
inevitably occur between the United Nations and the Administering
Authorities or, at least, would be likely to occur, and that, whatever they
were, they were to be resolved, so far at least as the Charter contemplated,
through the machinery of the Trustee-ship Council and the General Assembly
and in no other way.
The Charter provided its own machinery for securing the compliance by the
Administering Authorities of their respective obligations in relation to the
objectives of the Trusteeship System. There is no room for any contention
that it was inherently necessary or essential that a Trusteeship Agreement
should contain an adjudication clause to secure in the last resort or at all
compliance by the Administering Authorities of the obligations undertaken by
them in the interests of the peoples of the various Trust Territories.
Thus, all of the functions of the United Nations with regard to Trusteeship
Agreements for all areas not designated as strategic areas, the supervision
of the administration of the Trust Territories, the policing of the
obligations owed both to the United Nations itself and the peoples of the
territory, as set forth in the provisions of any Trusteeship Agreement to be
entered into, were vested exclusively in the General Assembly. Though an
organ of the United Nations, no function in relation to administration or
supervision or the enforcement of any obligation undertaken by the
Administering Authority or any judicial protection of the interests of the
inhabitants was assigned to the Court by Chapter XIII.
By provisions to be found elsewhere in the Charter FN1, the General Assembly
or the Trusteeship Council could, if it thought fit, seek an advisory
opinion of the Court. It was not bound to do so and, if it did, it was not
bound thereby; all the functions of the United Nations in relation to
Trusteeship Agreements entered into by it were for the General Assembly and
it alone to exercise. Whether an advisory opinion was sought or not in no
way affected the plenary powers of the Assembly to exercise, in relation to
any Trusteeship Agreement, all the functions of the United Nations.
----------------------------------------------------------------------------------------------------------------FN1
Article 96 of the Charter.
----------------------------------------------------------------------------------------------------------------
It is now necessary to consider the provisions of Article 76 of the Charter
the achievement of the objectives of which the Administering Authority in
the instant case undertook by Article 3 of the Trusteeship Agreement. The
central provision of this Article in the context of present consideration is
sub-clause (b) thereof, which provides that one basic objective of the
International Trusteeship System was—
"to promote the political, economic, social and educational advancement of
the inhabitants of the trust territories, and their progressive development
towards self-government or independence [p 77] as may be appropriate to the
particular circumstances of each territory and its peoples and the freely
expressed wishes of the peoples concerned, and as may be provided by the
terms of each trusteeship agreement".
The Applicant complains, as has been noticed, that one of the obligations
which the Administering Authority failed to discharge was that contained in
Article 3 of the Trusteeship Agreement. If Article 19 of the Trusteeship
Agreement gives a right to a State to invoke the jurisdiction of the Court
on the interpretation of or application of Article 3 of the Agreement, this
would extend to any alleged breach of the Article alleged to have occurred
at any time during the duration of the Trusteeship Agreement.
The obligation of the Administering Authority to achieve the objective set
out in Article 76 (b) of the Charter involves considerations which, on
their face, are peculiarly for political appreciation, and these, so far as
the Charter contemplated, were, as has been observed, for the General
Assembly, with the assistance of the Trusteeship Council, to evaluate. It is
not readily apparent what leqal norms could be applied to determine whether
or not the Administering Authority had breached Article 3 of the Trusteeship
Agreement; what legal norms, for example, could be applied by the Court at
any given point of time during the currency of the Trusteeship Agreement and
in a variety of circumstances to a situation in which it was alleged by a
State invoking the provisions of the adjudication clause that the
Administering Authority had failed "to promote the political... advancement
of the inhabitants ... as may be appropriate to the particular circumstances
of each territory". The words of Article 76 (6) have a special political
content; they appear to call for political evaluation and determination
only. Certainly it is apparent that, so far as the Charter contemplated, it
was a matter exclusively for political evaluation by an organ, which, both
by its composition and the machinery provided by the Charter, was equipped
to discharge that task. Yet if the Applicant's contention in this case were
correct, the Court was intended by the adjudication clause, at the instance
of any State, a Member of the United Nations, to pronounce upon these very
matters, and to do so irrespective of any determination made in respect
thereof by the General Assembly itself or any view which it held or might
hold.
As was said in the Joint Opinion in the South West Africa cases when
referring to the words contained in the Mandate Instrument (Article 2
thereof), under which the Mandatory Power undertook "to promote to its
utmost the material and moral well-being and the social progress of the
inhabitants ... ", there is hardly a term in Article 76 (b) of the Charter
"which could not be applied in widely different ways to the same situation
or set of facts, according to different subjective views as to what it
meant, or ought to mean... [p 78] They involve questions of appreciation
rather than of objective determination" such as a legal determination
necessarily involves. "The proper forum for the appreciation and application
of a provision of this kind is unquestionably a technical or political one,
such as ... the Trusteeship Council and the Assembly of the United Nations
FN1." There can be no doubt that the General Assembly and the Trusteeship
Council constituted the forum exclusively contemplated by the Charter for
the determination of the matters referred to in Article 76 (b) of the
Charter. What was said in the Joint Opinion applies with equal force to the
consideration of Article 3 of the Trusteeship Agreement and, as will
subsequently appear, to other Articles thereof, the breach of which is
complained of by the Applicant.
----------------------------------------------------------------------------------------------------------------FN1
I.C.J. Reports 1962, at 466-467.
----------------------------------------------------------------------------------------------------------------
To accord to Article 19 the comprehensive meaning contended for by the
Applicant permitting it to challenge in this Court, by way of a dispute
between itself and the Administering Authority, the General Assembly's
supervision of the Administering Authority's obligations to the people of
the Trust Territory, there must be presumed an intention on the part of the
United Nations acting through the General Assembly to accord a right to any
State to challenge as and when it thought fit, as between the Administering
Authority and itself, whether in law the objectives of Article 3 had been or
were being achieved by the latter. It would seem somewhat odd that the
General Assembly as a matter of deliberate intent should accord such a wide
and unfettered right to any State.
It is no answer to this observation to say that such a challenge under the
provisions of the adjudication clause is not, in law-, a challenge to the
competency of the General Assembly, and that no dispute between the State
and the General Assembly is involved, as the Applicant in this case has been
at great pains to assert. In practice it would be well-nigh impossible to
separate an Administering Authority's obligation to comply with the
provisions of Article 3, and complementary Articles, from the duty of
supervision which the General Assembly was called upon to discharge to
ensure those obligations were complied with. The question we are concerned
with is whether the adjudication clause was intended by the Parties thereto
to accord such a right to States in their individual capacity.
It would seem indisputable that the General Assembly, exercising all the
functions of the United Nations in relation to any trusteeship agreement,
had the authority, binding upon its Members, to determine when the
objectives of the Trusteeship System as set forth in Article 76 (b) of the
Charter had been achieved and the freely expressed wishes of the people
concerned had been ascertained, and with the consent of the Administering
Authority, to [p 79] bring the Trusteeship Agreement to an end, as indeed it
did in this case. Yet if the Applicant's contention is correct, it is
entitled in this case to seek the adjudication of this Court on whether, as
between itself and the Administering Authority, the objectives of the
Trusteeship System as set out in Article 76 (6) of the Charter were in fact
achieved, and whether the freely expressed wishes of the people concerned
were in fact expressed or ascertained; in short, that it had two forums
where it could challenge the conduct of the Administering Authority—and the
General Assembly—namely the General Assembly itself, and this Court. It is
true that the challenge in this Court is not one in which the United Nations
is directly a party, but there can be no doubt whatever that a decision of
the Court in the Applicant's favour would adversely and seriously reflect
upon the past supervision of the General Assembly and its action in bringing
the Trusteeship Agreement to an end and, as well, the manner in which it
discharged its duties in relation to the inhabitants of the Territory whose
interests it was bound to protect.
If the interpretation which should properly be placed upon Article 19 does
give such a comprehensive right to a State, it is of no moment that the
General Assembly and the Administering Authority did not when the
Trusteeship Agreement was entered into, direct their minds to every
contingency in which the right might be exercised. If however the
interpretation contended for by the Applicant is correct, it assumes that
the General Assembly and the Administering Authority, fully aware that
between them they were in control of the carrying out of any trusteeship
agreement and were, whilst the same remained yet to be performed, competent
to agree between themselves that the obligations of the Administering
Authority in relation to the peoples of the Territory were being fulfilled,
either wholly or in certain particular respects, and competent to bring the
Trusteeship Agreement to an end, when it was determined that the objectives
of Article 76 (b) of the Charter had been achieved, none the less intended
to allow an uncontrolled right to any State to canvass before the Court
decisions already reached between the General Assembly and the Administering
Authority, or about to be reached between them. This assumption could not
lightly be made. It is nothing to the point to Say that the field in which
the General Assembly operated was a political one whilst the functions of
the Court are judicial. The General Assembly dominated the situation at all
times and had authority of its own. It would seem unlikely that it would
have been prepared to allow that authority to be canvassed in any way,
directly or indirectly, at the will of any State without, at least, making
its intention manifestly clear, and not left to the interpretation of a
jurisdictional clause. Some other trace of its will might reasonably be
expected to have remained to bear witness. None is. It is equally unlikely
that an Administering Authority, not bound to agree to any [p 80] judicial
function being discharged by this Court, would have been prepared to submit
to the position in which, having to satisfy the General Assembly that it was
carrying out or had achieved the objectives of Article 76 (b) of the
Charter, its administration would also be subject to examination and
adjudication by this Court at the instance of any State or States,
irrespective of whether or not the General Assembly was satisfied with the
manner in which that administration was being or had been carried out.
The Trusteeship Agreement
The provisions of the Trusteeship Agreement which consists of 19 clauses
fall into two categories, one of which relates solely to the achievement of
the objectives of the Trusteeship System, the other to provisions conferring
specific individual rights upon States or upon their nationals.
In the first category of provisions are the following:
Article I defines the Territory; Article 2 designates the Administering
Authority responsible for the administration of the Territory; Article 3,
the dominant Article of the whole Agreement, contains an undertaking by the
Administering Authority "to administer the Territory in such a manner as to
achieve the basic objectives" laid down in Article 76 of the Charter and to
collaborate fully with the General Assembly of the United Nations and the
Trusteeship Council in the discharge of their functions; Article 4 provides
that the Administering Authority is to be responsible for the peace, good
government and defence of the Territory and for ensuring that it shall play
its part in the maintenance of international peace; Article 5 provides that
the Administering Authority, for all purposes of the Agreement, should have
certain powers of legislation and administration; Article 6 contains a
stipulation that the Administering Authority should promote the development
of "free political institutions suited to the Territory" and to this end
should assure to inhabitants a progressively increasing share in the
administrative and other services of the Territory, should develop their
participation in advisory and legislative bodies "as may be appropriate to
the particular circumstances of the Territory and its people" and should
take all other "appropriate measures with a view to the political
advancement of the inhabitants in accordance with Article 76 (b)" of the
Charter; Article 7 contains an undertaking by the Administering Authority
to apply in the Territory, inter alia, recommendations drawn up by the
United Nations or its specialized agencies "which may be appropriate to the
particular circumstances of the Territory" and conduce to the achievement of
the basic objectives of the Trusteeship System; Article 8 contains
safeguards of the native population in relation to land and natural
resources; Article 12 contains an obligation by the Administering [p 81]
Authority "as may be appropriate to the circumstances of the Territory" to
continue and extend elementary education designed to abolish illiteracy and
provide such facilities for secondary and higher education as "may prove
desirable or practicable" in the interests of the inhabitants; Article 13
contains, inter alia, an undertaking to ensure freedom of conscience and
religion in the Territory; Article 14 contains a guarantee by the
Administering Authority of freedom of speech, of press, of assembly and of
petition to the inhabitants of the Territory; Articles 15 and 16 are
machinery provisions to ensure that the objectives of the Trusteeship System
are achieved such as, for example, an obligation of the Administering
Authority to make an annual report to the General Assembly on the basis of
the Trusteeship Council's questionnaire; Articles 17 and 18 are ancillary in
nature.
The different provisions of this category either contain or relate to
undertakings entered into by the Administering Authority with the United
Nations which concern themselves with the interests of the inhabitants and
in particular the achievement of the objective indicated in Article 76 (b)
of the Charter. They create obligations owing by the former to the latter
but none owing to States in their individual capacity. The supervision of
the Administering Authority's administration of the territory in giving
effect to the objectives of the International Trusteeship System and the
discharge of these obligations as contained in them fall, so far as
contemplated by the Charter, within the functions of the United Nations
exercised by the General Assembly. These provisions produced their effects
for all States, Members of the United Nations, and in this sense each had an
interest in their performance. This however was a political interest only—no
matter what the nature or immediacy of the interest—to be expressed through
the General Assembly of the United Nations. The general obligations
contained in this category of provisions were owed to the United Nations in
its organic capacity in the interests of the inhabitants of the Territory;
they were not owed to States in their individual capacity. No legal right or
interest is given individually to States, Members of the United Nations, in
their performance—unless the adjudication clause, of itself, must be
interpreted to give such an interest.
The obligations of the Administering Authority undertaken by it to the
United Nations are expressed in broad terms and often, as will be seen, in
words of very general political content. The promotion of free political
institutions suited to the Territory, and measures to that end as may be
appropriate to the particular circumstances of the Territory and its people,
the provision of facilities which may prove desirable or practicable, the
application of recommendations of the United Nations, etc., which may be [p
82] appropriate, etc., and conduce to the achievement of the objectives of
the Trusteeship System, etc., relating to different obligations undertaken
by the Administering Authority appear to be matters for political
evaluation, and difficult, to Say the least, of objective judicial
adjudication. Any disputes which might arise in the United Nations as to
whether or not the Administering Authority was discharging its obligations,
so far as the provisions of the Trusteeship Agreement reveal—apart from
whatever Article 19 was intended to provide—appear to be for determination
within the General Assembly and nowhere else.
The second category of provisions are those under which the Administering
Authority agreed with the United Nations to confer certain legal rights or
interests upon States (or their nationals) in their individual capacity,
thus giving rise to correlative obligations on the part of the Administering
Authority vis-à-vis States, Members of the United Nations, in their
individual capacity. The distinction between the two categories is most
evident.
Thus Article g confers a number of such rights relating to equal treatment
on social, economic, industrial and commercial matters for all Members of
the United Nations and their nationals and provides that "the rights
conferred FN1 by this Article on nationals of Members of the United Nations
apply equally to companies and associations controlled by such nationals ...
in accordance with the law of any Member of the United Nations". By Article
IO measures to give effect to these rights are made subject to the duty of
the Administering Authority under Article 76 of the Charter, etc., and
Article II provides that nothing in the Trusteeship Agree-ment "shall
entitle FN1 any Member of the United Nations to claim for itself or its
nationals ... the benefits FN1 of Article 9'' in any respect in which it
does not give equality of treatment to inhabitants, companies and
associations of the Territory.
----------------------------------------------------------------------------------------------------------------FN1
Emphasis added. 71
----------------------------------------------------------------------------------------------------------------
Whereas the first category of provisions appear peculiarly for political
evaluation, the second category clearly relate to provisions relating to
rights of States or their nationals which admit of judicial interpretation
and application.
***
It is contended by the Applicant that, though under the provisions of the
Charter it may not have been essential to the effective working of the
Trusteeship System, that there should be a competence in the Court to
adjudicate on any alleged breach of a Trustee-[p 83] ship Agreement in
respect of the provisions thereof concerned with the social, economic,
educational and political development of the people to independence or
self-government, it was none the less open to the parties to a Trusteeship
Agreement to provide that the Court should have such a competence. This, it
is said, the Parties intended by Article 19 of the Trusteeship Agreement to
do—indeed, that this was the prime purpose it was intended to serve. This is
but a bare assertion of what in truth has to be established. There is not,
in my view, the slightest reliable evidence, unless it be Article 19 itself,
which is the subject of interpretation, to support this assertion.
The Purpose Article 19 Was Intended to Serve and its Interpretation
Article 19 appears to be no more than a jurisdictional clause to provide a
tribunal for the adjudication of certain disputes, and in its essentials it
is cast in a common form. Such a clause would normally refer to disputes
which relate to rights and obligations between the parties which exist and
are to be found outside the terms of the clause itself: disputes in which a
State claims to be aggrieved by the infraction, on the part of another
State, of an existing right or interest otherwise possessed by it.
Such a clause, in short, normally does not confer any additional right or
interest upon a State other than a right to have recourse to the tribunal
once the conditions imposed by the clause are complied with. A dispute
within the meaning of such a clause normally would relate to a legal right
or interest in the State claiming to be aggrieved, which resides or is to be
found elsewhere than in such a clause itself. It would indeed be unusual to
find in a jurisdictional clause a substantive right which itself could be
made the subject of a dispute.
In the present case, rights and obligations as between the Applicant and
the Respondent do exist outside the terms of the clause itself; they are to
be found in the provisions of the Trusteeship Agreement which specifically
confer individual rights upon the Applicant or its nationals with
corresponding obligations upon the Administering Authority. The clause
refers obviously to disputes relating thereto. Article 19 accordingly
provides a tribunal for the adjudication of such disputes. Apart, however,
from the right of recourse to the Court so provided, Article 19 does not
provide, certainly not in terms, for any legal right or interest in a State
beyond those which may be found elsewhere in other provisions of the
Trusteeship Agreement.
The Applicant's contention would, if it were accepted, compel an
interpretation of Article 19 giving it a meaning which normally such an
adjudication clause would not bear. In truth the contention involves reading
into the Article by implication a grant to States, in their individual
capacity, of a substantive right in the performance of provisions of the
Trusteeship Agreement, which them-[p 84] selves by their terms confer no
individual legal right or interests upon States. Such an interpretation
could only be justified if it could be established that it was strictly
necessary so to do to give effect to the manifest intention of the parties.
But where is that intention manifest? To establish it one would need to look
outside the clause itself, which is the subject of interpretation, since
normally such a jurisdictional clause confines itself to the conferment of
an adjective or procedural right only, and the means by which it may be
exercised; in brief a right of recourse to a tribunal in relation to a
dispute concerning legal rights or interests to be found outside the
perimeter of the clause itself.
There is no reliable piece of evidence outside the clause itself of any such
intention on the part of the United Nations and the Administering Authority.
In truth the evidence is the other way. In my opinion it is not possible to
imply in Article 19 the conferment of any substantive right upon any State
or read it as so doing. If a State, a party to a dispute, possesses, outside
of Article 19 itself, a substantive individual legal right or interest an
infraction or threatened infraction of which leads to a dispute, that
dispute is one within the meaning of the Article. If the State does not
possess any such substantive individual legal right or interest, no dispute
within the meaning of Article 19 could arise.
The Applicant's contention however is that the scope and purpose of the
Article—how that scope and purpose is to be ascertained except from the
bare words of the Article itself is left rather in the air—must be
understood to have accorded it an individual legal right or interest in the
observance by the Administering Authority of its obligations towards the
inhabitants and towards the United Nations which are contained in the
provisions of the Trusteeship Agreement (thus forming the basis of a dispute
between itself and the Administering Authority) although those provisions
do not, in themselves, accord to the Applicant any such right or interest.
Article 19, in my opinion, must be interpreted in a sense which reconciles
the rights and obligations of the Applicant and the Respondent. These rights
and obligations—whatever they may be—reside not in Article 19 itself but
elsewhere in the provisions of the Trusteeship Agreement. Read in their
context, the Article refers to disputes relating to the interpretation or
application of the provisions of the Agreement which confer individual
rights on a State or its nationals. So read, it makes sense. In my view,
read in its context, it refers to such disputes only.
***
This view appears strikingly confirmed by facts known to the Sub-Committee
of the Fourth Committee of the General Assembly [p 85] appointed to examine
eight draft trusteeship agreements (including that the subject of present
consideration) which later were approved by the General Assembly.
The draft first examined by that Sub-Committee was that relating to Western
Samoa. Its provisions were exhaustively scrutinized, as indeed were those of
all the drafts; the New Zealand draft on which most of the discussion took
place was, however, taken as a basis for the examination of all other draft
trusteeship agreements FN1.
----------------------------------------------------------------------------------------------------------------FN1
United Nations Official Record of 2nd part of 1st Session of General
Assembly, Fourth Committee, Trusteeship, Part II, pp. 2-3.
----------------------------------------------------------------------------------------------------------------
The Western Samoa draft contained the adjudication clause. In the course of
considering a modification to the clause proposed by the delegate of China
(but not adopted) at its meeting on 20 November 1946, such attention as was
given to this clause by the Sub-Committee (and so far as the Summary Record
reveals, very little was, and none in my opinion on the purpose it was
intended to serve) centred around the question whether if a dispute arose
between the Administering Authority and a State a Member of the United
Nations it should not, at first, be referred to the Trusteeship Council FN2.
A draft Trusteeship Agreement relating to New Guinea was also, with six
other draft agreements, before the Sub-Committee, all six of which
contained the adjudication clause. The delegate of Australia during
discussion referred to the fact that there was no adjudication clause in the
New Guinea draft. An obligation to submit to this Court a dispute between
itself and another State was, the delegate of Australia said, covered by its
acceptance of the compulsory jurisdiction of the Court by a declaration
under Article 36 of the Court's Statute FN2.
----------------------------------------------------------------------------------------------------------------FN2
Ibid., at pp. 85 et sqq.
----------------------------------------------------------------------------------------------------------------
Whatever its extent, that obligation was thus limited to the terms of such
declaration and governed by it.
It was thus apparent to the Sub-Committee that any dispute between Australia
as an Administering Authority and another State in relation to the
interpretation or application of any provision of that Trusteeship
Agreement would, if this statement was accepted as an equivalent of the
adjudication clause which appeared in all the other drafts, or a reason for
its omission, be subject not only to the terms of Article 36 of the Statute
and the terms of Australia's declaration of acceptance thereunder, but could
only relate to such provisions (if any) of that Trusteeship Agreement— with
an adjudication clause omitted—whereunder some individual legal right or
interest was conferred upon a State a Member of the United Nations. Such a
legal right or interest could not find its basis in a non-existent
adjudication clause and could therefore only have existence apart therefrom.
In short, whether any State did or did not have an individual legal right or
interest in the per-[p 86]formance by the Administering Authority of any
obligation contained in the New Guinea Trusteeship Agreement and a right to
invoke the jurisdiction of this Court in a dispute between it and the
Administering Authority relating to the interpretation or application of a
provision of that Trusteeship Agreement would need to be determined,
exclusively from the terms of the Agreement themselves (with the
adjudication clause omitted), and the terms of Australia's acceptance of the
Court’s jurisdiction under Article 36 of the Court's Statute FN1.
----------------------------------------------------------------------------------------------------------------FN1
Australia's obligation to submit any dispute to the jurisdiction of this
Court was governed by Article 36 (5) of this Court's Statute, in virtue of a
declaration to the Permanent Court of International Justice dated 21 August
1940, which continued in force until 6 November 1954 when Australia made
its first declaration of acceptance of this Court's jurisdiction under
Article 36 (2) of the Court's Statute.
Its declaration of 1940, which was on the basis of reciprocity, was for a
period of five years (which had in 1946 already expired) and thereafter
until notice of termination. Thus it could have terminated its acceptance at
any time, or renewed it subject to special conditions and exceptions. Its
acceptance of the Court's jurisdiction could accordingly only apply to a
limited number of States, Members of the United Nations, so creating
inequality as between them; moreover, it could only apply to disputes which
fell within the content of Australia's declaration if it continued in force,
or any declaration which replaced it.
----------------------------------------------------------------------------------------------------------------
Accordingly if the statement of the Australian delegate was accepted by the
Committee as explaining the absence of an adjudication clause in the draft
Trusteeship Agreement relating to New Guinea, no dispute relating to the
Trusteeship Agreement could be adjudicated upon by this Court unless the
provisions of the Trusteeship Agreement themselves gave an individual right
or interest to a State in the performance of all or any of its provisions,
and then only to the extent it fell within the ambit of Australia's
declaration of acceptance of this Court's jurisdiction.
If then the statement of the Australian delegate was so accepted by the
Sub-Committee, it is hardly conceivable that the Sub-Committee would have
thought that the presence of the adjudication clause was necessary to give
or that it gave any rights or interests to any State beyond such as might be
found within the provisions of a Trusteeship Agreement outside an
adjudication clause itself.
If, on the other hand, as will subsequently be considered, the Sub-Committee
did not accept the statement of the delegate of Australia as the equivalent
of the adjudication clause, or as explaining its absence, and if, as is
claimed (and as was held by this Court in the South West Africa cases to be
so in respect of mandate instruments), the all-important scope and purport
of the clause must be understood to have accorded to a State, a Member of
the United Nations, a legal right or interest in the observance by the
Administering Authority of its obligations towards the inhabitants
contained in the Trusteeship Agreement, it is beyond understanding [p 87]
why, in the meticulous scrutiny to which each Trusteeship Agreement was
subjected by the Sub-Committee, no insistent attempt was made, when all
other Articles thereof were settled, to have an adjudication clause included
in the Australian draft Trusteeship Agreement, why no mention of its
omission was contained in the Report of the Sub-Committee to its parent
Committee, or in the Report of that Committee to the General Assembly or in
the debates in the General Assembly itself.
However the matter is looked at it is, I think, evident that if there is not
to be found in the body of a Trusteeship Agreement (that is, in the
provisions thereof, apart from the adjudication clause itself) provisions
conferring upon a State, a Member of the United Nations, a legal right or
interest in the performance by the Administering Authority of some
obligation undertaken by it under one or more of its provisions—the
adjudication clause would not itself confer any right on a State to have
interpreted or applied by this Court any provision of the trusteeship
agreement. The operation of the clause is limited, subject to the
conditions stipulated therein, to providing a tribunal to which recourse may
be had by a State in relation to any dispute relative to the interpretation
or application of provisions of the trusteeship agreement which in
themselves accorded an individual legal right or interest in the performance
of obligations of the Administering Authority contained therein FN1.
----------------------------------------------------------------------------------------------------------------
FN1 By article 76 (d) of the Charter it was provided that one of the
objectives of the International Trusteeship System was—
"to ensure equal treatment in social, economic and commercial matters for
all Members ... subject to the provisions of Article 80".
Article 80 provided that—
"Except as may be agreed upon in individual trusteeship agreements ...
nothing in this Chapter shall be construed in or of itself to alter in any
manner the rights whatsoever of any States ... or the terms of existing
international instruments..."
Every Trusteeship Agreement approved by the General Assembly contained the
central obligation of the Administering Authority to administer in such a
manner as to achieve the basic objectives laid down in Article 76 of the
Charter. Though in my opinion the undertaking of the Administering Authority
in respect to this obligation, given to the United Nations, did not confer
upon any State or its nationals any individual legal right or interest in
its performance either in relation to objective 76 (d) of the Charter or
otherwise (an undertaking to the United Nations on the part of the
Administering Authority to achieve general objectives), it may be open to
the faint argument that the undertaking read together with Article 76 (d) of
the Charter did confer such a right or interest by necessary implication.
Whatever be the correct view, it still remains true that the adjudication
clause is limited to disputes relating to such provisions of the Trusteeship
Agreement whereunder such rights or interests are conferred upon a State or
its nationals.
The Articles in certain of the Trusteeship Agreements in which individual
legal rights or interests in States were expressly conferred upon States or
their nationals (such as are to be found in Article g of the Trusteeship
Agreement in the instant case), though they relate in general to the broad
objective stated in Article 76 (d) of the Charter, were the subject of
prolonged and intensive negotiation when the draft agreements were under
examination by the Sub-Committee of the Fourth Committee. These provisions
specifically conferred rights; such rights were removed from any limitations
under Article 80 of the Charter; they extended the field to include
industrial matters as well as matters social, economic and commercial; they
made provisions against the granting of general monopolies subject to
certain exceptions in favour of the Administering Authorities (see Article
10 of the present Trusteeship Agreement), and in some made the entitlement
of the benefits of the rights conferred subject to reciprocal equality of
treatment by other States (see Article II of the present Trusteeship
Agreement and compare Article 8 of the Trusteeship Agreement relating to
French Cameroons). Moreover in the Trusteeship Agreement relating to Western
Samoa, a right—the missionary right—was conferred upon nationals of States,
Members of the United Nations, which seems to have little or nothing to do
with the objective indicated in Article 76(d) of the Charter.
----------------------------------------------------------------------------------------------------------------
[p 88]
***
There are, however, reasons independent of those already advanced which
compel an interpretation adverse to that contended by the Applicant. The
Applicant, relying as has been noted upon the words "any dispute whatever...
relating to the provisions of the Trusteeship Agreement" and the Court's
statement in the South West Africa cases that these words admit of no
exception, claims that the natural and ordinary meaning of these words
exclude any other interpretation than that which it asserts they bear.
Although the cardinal rule of interpretation is that words are to be read,
if they may so be read, in their ordinary and natural sense, this rule is,
as I have had occasion before to observe, sometimes a counsel of
perfection, for ambiguity may be hidden in the plainest and most simple of
words even in their ordinary and natural meaning. In the context of Chapter
XIII of the Charter and the provisions of the Trusteeship Agreement itself,
Article 19 is not by any means as clear as it is contended by the Applicant
FN1. On close examination it presents an important ambiguity, as did the
comparable clause in the South West Africa cases, which calls for an
interpretation which goes beyond a bare examination of the words to be found
in Article 19 detached from its context. That ambiguity is introduced by the
words "if it cannot be settled by negotiation or other means".
----------------------------------------------------------------------------------------------------------------FN1
Constantly it is asserted that the language of the adjudication clause is
clear, precise and unambiguous. It is not without significance that during
the discussion in the Sub-Committee of the Fourth Committee on the Western
Samoan draft the view of at least the delegate of one State was that it was
not clear whether the adjudication clause obliged the State in dispute with
the Administering Authority also to submit the dispute to this Court, nor
whether the adjudication clause automatically referred a dispute to the
Court or whether it was necessary first that a special agreement should be
entered into , which was precisely what the Applicant in this case in its
letter of 1 May 1961 asked the Respondent to agree to).
However this may be, it would seem to indicate that the language of the
adjudication clause, clear and unambiguous as it claimed to be, may not be
so.
----------------------------------------------------------------------------------------------------------------
[p 89]These words, of themselves, provide the key to the interpretation of
Article 19, in particular the key to the discovery of the meaning of the
words "any dispute whatever".
The condition "if it cannot be settled by negotiation or other means" is one
which applies to all disputes within the meaning of the clause and thus
characterizes the disputes which fall within the ambit thereof. As Judge
Moore pointed out in the Mavrommatis Palestine Concessions case (P.C.I.J.,
Series A/B, Judgment No. 2 at p. 62) this condition is to be found in a
large number of arbitration treaties entered into over the years both before
and since the mandate instruments and trusteeship agreements "as a vital
condition of their acceptance and operation". The words do not mean, as he
pointed out, that the dispute "must be of such a nature that it is not
susceptible of settlement by negotiation"; this would destroy the
effectiveness of the condition.
Read in their present context they necessarily imply, in my opinion, that a
dispute within the meaning of Article 19 must be of a class, character or
type which is capable of being settled between the parties thereto in a
final manner and between parties having the competence so to do. Whatever is
the meaning to be given to the words "or other means”—and this will be
considered later—they must, in my view, mean that the parties to the dispute
are able to choose and agree upon the means to be employed to settle the
dispute finally, and competent to bind themselves to the result of the means
employed to achieve a settlement. Thus the dispute must be one which each is
competent to settle between itself and the other State or States whatever
the means employed so to do.
A dispute which relates to individual interests or rights of a State or its
nationals conferred by the provisions of the Trusteeship Agreement is
inherently capable of final settlement between the Administering Authority
and a State, a Member of the United Nations FN1; but a dispute which is not
of that class, character or type but on the contrary is of a class,
character or type which relates to the performance of obligations stipulated
therein undertaken by the Administering Authority with the United Nations,
in the interests of the peoples of Trust Territories, and in defence of
those interests, to achieve the advancement and well-being of the peoples of
the Trust Territory and their development to the ultimate goal of
independence or self-government, in accordance with the objectives of the
International Trusteeship System established by the Charter of the United
Nations, is inherently incapable of settlement by any means between the
Administering Authority and any other State.
----------------------------------------------------------------------------------------------------------------FN1
Any such right might presumably be renounced by a State (Mavrommatis
Concessions, P.C.I.J., Series A/B, Judgment No. 2 at p. 30)
----------------------------------------------------------------------------------------------------------------
These last-mentioned obligations, which hereafter are sometimes referred to
as general obligations, directed to promotion of the [p 90] political,
economic, social and educational advancement of the inhabitants and their
progressive development toward self-government or independence; cannot of
their very nature be affected, altered, modified, amended or compromised in
any manner whatever without the consent of the United Nations. It would not
be competent, in my opinion, for the Administering Authority to agree with
another State that any one of these general obligations should in any
particular circumstances be interpreted or applied in a certain manner. In
my opinion the meaning of the words "any dispute whatever", conditioned by
the words "if it cannot be settled ... etc.", between the parties, read in
their context refer to such disputes in relation to the interpretation and
application of the provisions of the Trusteeship Agreement, which of their
nature, are of a class character or type which the parties are competent to
settle between themselves. All disputes whatever relating to the
interpretation or application of provisions of the Trusteeship Agreement
which are of that class, character or type, but only such disputes as are,
are those to which Article 19 has application.
***
The task of the Court is to ascertain the intention of the United Nations
and the Administering Authority when this Agreement was entered into. It is
indisputable, I think, that the General Assembly, acting within its
authority under the Charter, and the Administering Authority, were entitled,
under the terms of the Charter and as the parties to the Trusteeship
Agreement, to interpret the provisions thereof relating to the general
obligations of the Administering Authority, and apply them as they agreed
between themselves. It would seem somewhat extreme to ascribe to the United
Nations—acting through the General Assembly—quite apart from any intention
of the Administering Authority so to do, an intention to grant to any State
a right, at its own unrestrained will, to challenge judicially an
interpretation or application of the Trusteeship Agreement which the General
Assembly (the organ chosen by the Charter to exercise all the functions of
the United Nations relating to the Trusteeship Agreement) and the
Administering Authority, agreed between themselves, gave effect to the
Agreement and so satisfied its requirements.
***
These considerations alone compel me to the conclusion that Article 19
should be interpreted as applying exclusively to disputes relating to
individual rights or interests accorded to a State, or its nationals, by
provisions of the Trusteeship Agreement.
***[p 91]
By way of parenthesis it should be added that the words "or other means"
("if it cannot be settled by negotiations or other means")—words which did
not appear in the Mandate Instru-ments— do not, for reasons already
advanced, affect the conclusion arrived at on the interpretation to be
accorded to Article 19. A few words, however, on the meaning to be accorded
these words "or other means" may conveniently be inserted.
The words, in my opinion, must be construed ejusdem generis.
There is some confirmation aliunde for this view.
Among eight Trusteeship Agreements approved by the General Assembly on 13
December 1946 there is to be found one and one only in which the
adjudication clause varied in verbiage from that contained in each of the
others. Yet it could not be disputed, I think, that the purpose and scope of
each was precisely the same. In the Trusteeship Agreement relating to
Western Samoa the relevant words are "by negotiation or similar means". The
meaning of the words employed in the other Trusteeship Agreements should be
interpreted in the same sense.
***
The Surrounding Circumstances when the Trusteeship Agreement was Entered
into
That the Applicant's contention on the interpretation to be accorded Article
19 is unfounded is also, I think, evident from the surrounding circumstances
at the time the Trusteeship Agreement was entered into, some of which have
already been referred to.
It will be recalled that the Mandates were divided into three categories
referred to generally as A, B and C Mandates depending upon the state of
political development which they had achieved. The people in the "C"
Mandated Territories were, due to their remoteness from the centres of
civilization and other factors, for the most part in the most backward state
of development. One would think that if the United Nations, as one of the
parties to the Trusteeship Agreements (the great majority of which,
including that in the present case, were negotiated and entered into at the
same time in 1946), intended that an important, if not the overriding
purpose of the adjudication clause we are concerned with was to provide for
judicial adjudication by this Court at the instance of any State, a Member
of the United Nations, to defend or assert the interests of the peoples of
these territories in order to protect them against breaches of obligations
undertaken by the Administering Authority to these peoples, such a provision
as Article 15—which had appeared in all the mandate instruments— was very
much more advisable or desirable to be inserted in Trusteeship Agreements
which related to previous "C” Mandates than [p 92] would be the case in
Trusteeship Agreements relating to previous "B" mandated territories whose
people were more advanced in political development. Certainly it could not
with reason be contended it was any the less so. Yet the significant fact
is that of the Trusteeship Agreements dealing with the four previously
mandated "C" territories only one contained any adjudication clause FN1.
This fact bears directly upon the purpose the adjudication clause was
intended to serve in the Trusteeship Agreements in which it did appear. In
the Trusteeship Agreements where the adjudication clause does not appear
its omission was not as we have seen due to mistake or oversight, it was
omitted deliberately. The omission of the adjudication clause in these
three Trusteeship agreements does not square with the contention that the
purpose of the clause was to secure adjudication by this court at the
instance of any State, a Member of the United Nations, claiming that there
had been, or was continuing, a breach by the Administering Authority of any
of its obligations under the provisions of the Trusteeship Agreement
including those undertaken by the Administering Authority which were
concerned with the welfare and political advancement of the inhabitants of
the territory.
----------------------------------------------------------------------------------------------------------------FN1
The three in which it did not appear were those relating to New Guinea,
Nauru and the previous Japanese Mandate in the Pacific.
----------------------------------------------------------------------------------------------------------------
The obvious inference is that an adjudication clause was not considered in
these cases as serving any useful purpose. If this inference is correct, as
I believe it is, it would point clearly in the direction that the purpose
which the adjudication clause was to serve, in such Trusteeship Agreements
in which it did appear, was not to accord to any State any right to invoke
the jurisdiction of the Court in relation to a dispute between itself and
the Administer-ing Authority on the interpretation or application of any of
the general provisions of the Trusteeship Agreement which were concerned
with the carrying out of the objectives of the Trusteeship System in the
interests of the indigenous population; it was to serve quite a different
purpose. It seems inescapable that the purpose could only have been to
provide a tribunal for the adjudication of disputes between the
Administering Authority and a State relating to provisions of the
Trusteeship Agreements which by their terms conferred individual rights upon
States or their nationals.
Thus the surrounding circumstances at the time the present Trusteeship
Agreement was entered into negative the interpretation of Article 19
contended for by the Applicant. The omission of the adjudication clause in
these three Trusteeship Agreements is, I think, conclusive against the
Applicant's contention on the meaning of Article 19.
***[p 93]
The matter does not, however, rest here. On the same day, namely 13 December
1946 FN1, the General Assembly approved two Trusteeship Agreements which
related to previous “C” Mandates, namely Western Samoa and New Guinea: in
one the adjudication clause appears, in the other there is none.
----------------------------------------------------------------------------------------------------------------FN1
The same day on which the Trusteeship Agreement for British Cameroons was
approved by the General Assembly.
----------------------------------------------------------------------------------------------------------------
In the mandate instruments relating to these two territories there was a
provision which conferred rights or interests upon States Members of the
League or their nationals, and each contained the adjudication clause FN2.
These rights, considered by many States, Members of the League, to be of
importance in these somewhat primitive areas, were, in terms, that the
Mandatory Power "Shall allow all missionaries, nationals of any State, a
Member of the League of Nations, to enter into, travel and reside in the
territory for the purpose of prosecuting their calling".
----------------------------------------------------------------------------------------------------------------
FN2 In the case of "A" and "B" Mandates the rights specifically conferred
upon States or their nationals were quite extensive; in the case of "C"
Mandates these rights were minimal.
----------------------------------------------------------------------------------------------------------------
When Western Samoa was brought under the Trusteeship System of the Charter,
its Trusteeship Agreement, after stipulating the obligation common to all
Trusteeship Agreements, namely to administer the territory so as to achieve
the objectives of Article 76 of the Charter FN3, in a subsequent provision,
again accorded the same rights to missionaries, nationals of a State, a
member of the United Nations as were contained in the mandate instrument.
Consequently the adjudication clause found its place in the relevant
Trusteeship Agreement, just as it did in the mandate instrument. The
Trusteeship Agreement which related to New Guinea, on the other hand, did
not contain any provision specifically according any rights or interests to
States or their nationals, the rights accorded to mis-sionaries, etc., thus
were not included.
----------------------------------------------------------------------------------------------------------------FN3
See footnote I at pp. 87, 88, ante.
----------------------------------------------------------------------------------------------------------------
During the course of the deliberations in the Sub-Committee of the Fourth
Committee of the General Assembly, which scrutinized the provisions of each
draft Trusteeship Agreement before it, a number of new clauses to the New
Guinea draft (some of them designed to have written into that draft the
conferring of individual rights or interests on States, Members of the
United Nations, or their nationals, similar to those conferred in the
Trusteeship Agreement presently before the Court FN4) were proposed by
different delegations.
----------------------------------------------------------------------------------------------------------------FN4
See Annexes 5 to 5 (g) to United Nations Official Records of second part of
1st Session of the General Assembly, pp. 240 to 248 and sub-committee
Doc.A/C.4/Sub. 1/31.
----------------------------------------------------------------------------------------------------------------
Specifically there was a proposal by the United States Delegation to
include two clauses, the one in identical terms to [p 94] Article 9 of the
Western Samoan draft (freedom of conscience and religion) which conferred
rights upon missionaries, nationals of States, Members of the United
Nations, to enter, travel, reside and carry on their calling; the other
identical to Article 16 of the Western Samoan draft, the adjudication
clause. These proposals had been before the Sub-Committee for a considerable
time and had been circulated FN1.
----------------------------------------------------------------------------------------------------------------FN1
Records of 2nd part of 1st session of the General Assembly Fourth Committee;
Trusteeship Part II, p. 26, Annex 5(b) and Sub-Committee Doc. A/C.4/Sub.
1/31.
----------------------------------------------------------------------------------------------------------------
The Sub-Committee had commenced its deliberations on 15 November 1946. At
its first meeting of 3 December 1946 it was decided to postpone discussion
of the new Articles proposed, inter alia, by the United States until the end
of the examination of the New Guinea draft agreement.
At the Sub-Committee's second meeting the same day the modification
proposed by the Delegation of the United States to the draft agreement for
New Guinea, namely to add an Article identical to Article 16 of the draft
agreement for Western Samoa, was postponed for later consideration in
connection with other proposed new articles.
Later at the same meeting the delegate for Australia made the Australian
Government's position quite plain. It was prepared, in order to meet a
number of proposed modifications to its draft, to add, as it did, an
additional clause (now Article 8 of the Trusteeship Agreement for New
Guinea) but was not prepared to go any further. This additional clause did
not contain any provision conferring individual rights upon States, Members
of the United Nations or their nationals; in particular it did not provide
for any rights to missionaries, nationals of a State, a Member of the United
Nations FN2. On the following day at the Sub-Committee's second meeting of
that day the delegate of the United States withdrew his proposal to insert
certain Articles in the New Guinea draft, specifically he withdrew the
proposal to insert an Article concerning "the procedure to be followed with
respect to disputes over the interpretation and application of the
provisions of the draft agreement FN3".
----------------------------------------------------------------------------------------------------------------FN2
Ibid., at pp. 151-152 and Annexes 5 (f) and 5 (h).
FN3 Records of 2nd part of 1st session of the General Assembly Fourth
Committee; Trusteeship Part II, pp. 163-164.
----------------------------------------------------------------------------------------------------------------
There was no protest, no debate, no comment. Nor was there any when the
Sub-Committee reported to its parent Committee.
One week after, all eight of the Trusteeship Agreements to which reference
has previously been made (including the Trusteeship Agreement for the
British Cameroons) were approved by the General Assembly. No observation of
any kind was made on the [p 95] absence of an adjudication clause in the New
Guinea Trusteeship Agreement.
It seems hardly believable, if the all-important purpose of the adjudication
clause were that presently contended for by the Applicant, that the
omission of an adjudication clause could have passed without some comment.
Yet none was made.
In the light of this record it is quite impossible to reconcile what took
place in the Sub-Committee, the Fourth Committee and the General Assembly
itself with the contention of the Applicant that Article 19 of the
Trusteeship Agreement was intended to accord a right to any State, a Member
of the United Nations, to have recourse to this Court in relation to a
dispute concerning the interpretation or application of the general
provisions of a Trusteeship Agreement dealing with the obligations of an
Administering Authority undertaken by it in the interests of the
inhabitants of the territory. Where there were to be found in a Trusteeship
Agreement approved by the General Assembly any provisions which conferred
or were understood to confer individual rights or interests upon States,
Members of the United Nations, or their nationals, the adjudication clause
appeared, where a Trusteeship Agreement contained none, as was the case for
example of that relating to New Guinea, no adjudication clause appeared FN1,
the General Assembly did not regard it as serving any purpose.
----------------------------------------------------------------------------------------------------------------FN1
The mandate instrument and the Trusteeship System Agreement in relation to
Nauru stand precisely on the same footing as that relating to New Guinea.
The Trusteeship Agreement relating to Nauru was approved by the General
Assembly nearly a year later, in November 1947. The absence of an
adjudication clause did not invite comment.
----------------------------------------------------------------------------------------------------------------
This conclusion is I think inescapable. However, in the remote possibility
that it could be urged that Australia's explanation as to the absence of the
adjudication clause to which reference has previously been made FN2 was
accepted by the Sub-Committee as sufficient or as the equivalent of an
adjudication clause the same conclusion, for reasons already advanced, must
be reached.
----------------------------------------------------------------------------------------------------------------FN2
See pp. 85 and 86 and footnote at p. 86, ante.
----------------------------------------------------------------------------------------------------------------
However the matter is viewed the interpretation of Article 19 of the
Trusteeship Agreement in the instant case contended for by the Applicant is
shown to be without substance.
***
Having regard to all the foregoing considerations it would not seem possible
to support the proposition that Article 19 of the Trusteeship Agreement with
which the Court is presently concerned had anything to do with the general
obligations of the Administering Authority's obligations such as those on
the alleged breach of which the Applicant in this case bases its claim for
relief. It is [p 96] demonstrated that a dispute within the meaning of
Article 19 of the Trusteeship Agreement relates solely and exclusively to
individual rights or interests, whatever they were, which were conferred by
provisions of the Trusteeship Agreement upon States or their nationals.
***
The history of the drafting of the adjudication clause and how and why it
came to be included in the Mandate instruments from which it was taken when
the Trusteeship Agreements were being drafted bears out completely the
conclusion arrived at.
The inescapable truth of the matter is that the adjudication clause to be
found in each mandate instrument and that found in Trusteeship Agreements
had a common parentage. They were conceived to serve the same purpose, their
scope and intendment were the same. They had nothing to do with the general
obligations of either the Mandatory Powers or the Administering Authorities,
or the interests of the peoples of the territories, but, on the con-trary,
were intended to serve the mundane purpose of providing a tribunal for the
adjudication of disputes arising out of the interpretation or application
of provisions in both the Mandate Instruments and the Trusteeship
Agreements which in themselves conferred individual rights or interests on
States or their nationals, and were intended to serve this purpose only FN1.
----------------------------------------------------------------------------------------------------------------FN1
See I.C.J. Reports 1962, Joint Opinion of Judge Sir Gerald Fitzmaurice and
myself, pp. 554-559, where the history of the origin and development of the
adjudication clause and how it came to be inserted in the mandate
instruments is reviewed.
----------------------------------------------------------------------------------------------------------------
If, however, contrary to the conclusion I have felt bound to arrive at on
the interpretation to be accorded Article 19 the Court has jurisdiction in
these proceedings I agree that the Court, for reasons appearing in its
Judgment, should refrain from proceeding further.
(Signed) Percy C. Spender.
[p 97] SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE
I agree with the decision of the Court in this case, and I also consider
that the main ground for it, as stated in the Judgment (namely that the
claim is not of a character to engage the Court's judicial function), forms
a correct and sufficient basis for the decision. I have however certain
additional remarks to make, and also an additional ground for reaching the
same conclusion. Finally, because of the particular considerations on which
the Judgment is founded, the Court has not thought it necessary to consider
whether it would have jurisdiction to entertain the claim if the grounds of
objection mentioned in the Judgment did not exist. While I think the Court
was right in this, I have reasons for wanting to deal with the main
jurisdictional issues indicated in the submissions of the Parties.
In this opinion, Parts I and II (pp. 97-100, and 100-108) contain my
additional observations on the basis of the Court's decision. Part III (pp.
108-111) gives my additional ground for reaching the same conclusion. In
Part IV (pp. 111-127) I consider the jurisdictional issues arising on
Article 19 of the Trusteeship Agreement for the former British Cameroons;
and in Part V (pp. 127-130) I discuss the objection ratione temporis
advanced by the Respondent State to the admissibility of a part of the
claim.
I
"MOOT" FN1 CHARACTER OF THE CASE. THE QUESTION OF REPARATION
----------------------------------------------------------------------------------------------------------------FN1
The term "moot" is here used in the sense given to it in American legal
terminology, as denoting a case or claim which is or has become pointless
and without object.
----------------------------------------------------------------------------------------------------------------
It has been obvious from the start that this case had certain very unusual
features, arising from the combined facts that the Applicant State's claim
or request related to a situation which was not merely in the past, but
wholly terminated and non-recurrent, and which for all practical purposes
was so at the date of the Application ; while at the same time the latter
contained no claim for any compensation or other form of reparation in
respect of the illegalities alleged to have been committed during the
period when this [p 98] situation was still actively in existence. Nor was
any attempt made to introduce such a claim at any later stage of the
proceedings FN1.
----------------------------------------------------------------------------------------------------------------FN1
It is not proposed to discuss here whether the framing of such a claim would
in fact have been practicable at all, or if so, would have been permissible
at a later stage than that of the initial Application. What was quite clear
throughout, was that there had been no error or oversight. On the contrary,
it was insisted in the most positive manner that the Applicant State was not
asking for anything but a declaration that the Respondent State had
administered the Trust irregularly.
---------------------------------------------------------------------------------------------------------------
This combination makes the case almost unique in the annals of international
litigation. It concerns alleged breaches of an international agreement, the
Trusteeship Agreement for the former British Cameroons. Now, it is in no way
singular that an allegation that a breach of treaty has occurred, should not
be accompanied by any claim for compensation or other reparation, where the
treaty is still in force and operating; for in that case, any finding in
favour of the plaintiff State functions as a prohibition on the continuance
or repetition of the breach of treaty, and this may be all that is required,
and in any event makes the judgment effective FN2. Moreover, the latter
necessarily operates as a finding about the correct interpretation or
application of the treaty, and therefore serves a useful and effective legal
purpose during the life-time of the treaty.
----------------------------------------------------------------------------------------------------------------FN2
This also applies to what may occur in cases such as the Corfu Channel case,
where the Court, though finding that a violation of territorial sovereignty
had taken place, awarded no compensation or other reparation (none was
requested), but declared (I.C.J. Reports 1949, at pp. 35 and 36) that its
finding as to the violation constituted "in itself an appropriate
satisfaction". This declaration, however, though it related to a past and
irreversible event, was also relevant to a still continuing situation in
which a repetition of the violation of sovereignty could occur, and it had
operative legal effect as a prohibition or interdiction on any such
repetition. This was quite a different case from the present one.
----------------------------------------------------------------------------------------------------------------
Equally, it would be quite normal to allege in respect of a treaty that was
no longer in force, that breaches of it which occurred during its currency
had caused damage to the plaintiff State, for which the latter claimed
compensation or other reparation. In the absence of such a claim however,
the issue of whether there was a breach of the treaty while it was still in
force, could only be an academic one: a judgment on that issue, even if
favourable to the plaintiff State, could create no rights or obligations for
either party to receive, enjoy, do or refrain from doing anything. Nor would
the treaty any longer be in existence, so that the judgment could have no
operative relevance by way of declaring the treaty's correct interpretation
or application. Such a judgment could at most afford a moral satisfaction to
the party in whose favour it was pronounced, and could at most have an
academic interest, however high its authority as a pronouncement of law. But
courts of law are not there to make legal pronouncements in abstracto,
however [p 99] great their scientific value as such. They are there to
protect existing and current legal rights, to secure compliance with
existing and current legal obligations, to afford concrete reparation if a
wrong has been committed, or to give rulings in relation to existing and
continuing legal situations. Any legal pronouncements that emerge are
necessarily in the course, and for the purpose, of doing one or more of
these things. Otherwise they serve no purpose falling within or engaging the
proper function of courts of law as a judicial institution.
*
Since, in the present case, it is the combination of the two things—the
process of alleging breaches of a treaty instrument due to come to an end
two days after the Application was filed, coupled with the failure to claim
any reparation for these alleged breaches, that gives the case its special
character—it is worth considering certain other consequences of the latter
circumstance, which would immediately have come to light had the Court
proceeded to the merits, and which in my opinion have a direct relevance to
the question of the admissibility (or perhaps more appropriately in the
context—the examinability) of the Applicant State's request, considered as
such.
By not claiming any compensation, the Applicant State placed itself in a
position in which, had the Court proceeded to the merits, the Applicant
could have obtained a judgment in its favour merely by establishing that
breaches of the Trust Agreement had been committed, without having to
establish, as it would otherwise have had to do (i.e. if reparation had been
claimed) that these breaches were the actual and proximate cause of the
damage alleged to have been suffered—that is the incorporation of the
Northern Cameroons in the Federation of Nigeria rather than in the Republic
of Cameroon; without, in short, having to establish the international
responsibility of the United Kingdom for this outcome. Neither in the
Application or Memorial of the Applicant State, nor in its oral pleadings,
did it do more than seek to set up a general presumption that if the United
Kingdom, as Administering Authority, had conducted matters differently, the
result would have been different. No proof of this was offered, nor even any
real prima facie evidence of it, and in the nature of the case it hardly
could have been. There are, moreover, aspects which suggest that not even [p
100] a presumption to that effect could legitimately be drawn. In short, it
could only remain entirely speculative what would have happened if this or
that circumstance or action had been different FN1.
----------------------------------------------------------------------------------------------------------------FN1
The majority in favour of joining the Federation of Nigeria was broadly 3-2.
It would have needed a heavy swing for this to be converted into a majority
the other way. Moreover, the very fact that as many as two out of every five
voted to join the Republic of Cameroon, tends to show that the vote was free
and uninfluenced by anterior policies. This was equally the view taken in
the independent report of the universally respected United Nations
Commissioner, Ambassador Abdoh, on which the General Assembly acted in
framing its resolution No. 1608 (XV) of 21 April 1961. A further point is
that the Southern Cameroons, no less than the Northern, had always been
administered as an integral part of Nigeria. Yet this did not prevent its
population from opting to join the Republic of Cameroon, not Nigeria. The
presumption, if any, must be that the previous method of administration had
little direct bearing on the result. Yet this previous method of
administration constituted the Applicant State's chief ground of complaint.
----------------------------------------------------------------------------------------------------------------
The point is that, on the basis of the Application as framed, and without
establishing any actual causal link between the irregularities alleged and
the damage complained of, the Applicant State could have called for a
judgment in its favour. The result is that, had the Court proceeded to the
merits, and had it considered the allegations of irregularities in the
administration of the Trust, and in the conduct of the plebiscite leading up
to its termination, to be justified, it would have found itself in the
position of being obliged to give judgment against the Respondent State,
irrespective of whether these irregularities had been the cause of the
damage complained of.
This is clearly not a position in which the Court ought to allow itself to
be placed. It is not the task of an international tribunal to apportion
blame in vacuo, or to find States guilty of illegalities except as a
function of, and relative to a decision that these have been the cause of
the consequences complained of, for which the State concerned is accordingly
internationally responsible; or except in relation to a still continuing
legal situation in which a pronouncement that illegalities have occurred may
be legally material and relevant.
II
THE RIGHT OF THE COURT NOT TO GIVE ANY FINDING ON JURISDICTION. THE QUESTION
OF JUDICIAL PROPRIETY
The Judgment of the Court in the present case is essentially founded on the
view that, irrespective of the Court’s competence to go into the merits of
the case (and even if it is competent to do so), [p 101] the claim is of
such a character that the Court ought not to entertain it; or alternatively,
that any decision that might be given by the Court in favour of the
Applicant State (and if none, then cadit quaestio), could only be of such a
character that the Court ought not, in the prevailing circumstances, to give
it, and ought not therefore to examine the claim at all. The Court has not,
I think, pronounced the claim to be formally inadmissible, but it has in
effect (to make use of the French term recevabilité) treated it as
non-receivable or unexaminable because of the consequences (i.e. strictly,
the lack of any) which would ensue if it was acceded to.
In my opinion, however, a claim which would and could only have the outcome
described in the Judgment of the Court (assuming even, that there was a
finding on the merits in favour of the claim), must itself be regarded as
inadmissible.
Underlying the Judgment of the Court there are clearly considerations of
propriety, and this raises a general issue of principle—that is to Say, of
how far and in what circumstances a court which has, or may have,
jurisdiction to go into a case, can and should decline to exercise that
jurisdiction (or even to consider the question of jurisdiction) on the
ground that it would not be proper for it to do so in the circumstances.
Although the Judgment refers to previous cases in which the Court, or its
predecessor the Permanent Court, declined to pronounce on certain matters
for reasons essentially of unsuitability, and these cases are clearly
relevant, I regard them as not quite comparable to the present case, in
which the position is that, irrespective of its jurisdiction (and even if it
has it), the Court is declining altogether to exercise it, or even to
consider whether it has any jurisdiction. This involves an issue familiar in
connection with requests for advisory opinions FN1, but less so in the field
of international litigation, where it may be argued that if a court is
competent in relation to a given case, it must exercise that competence,
and must therefore consider the question of its competence. This is a
serious issue which requires to be dealt with, since it is in a general way
evident that courts exist in order to go into and decide the cases they are
both duly seised of, and have jurisdiction to entertain, without picking and
choosing which they will pronounce upon, and which not FN2.
----------------------------------------------------------------------------------------------------------------
FN1 For a recent judicial affirmation of the right of the Court to decline
to give an advisory opinion even where competent to do so, see the case of
Certain Expenses of the United Nations (I.C.J. Reports 1962, at p. 155).
FN2 The fact that jurisdiction is assumed, does not of course mean that the
tribunal concerned necessarily proceeds to hear and determine the merits,
for it may reject the claim in limine on some ground of inadmissibility
(non-exhaustion of local remedies, undue delay, operation of a time-limit,
etc.). Such a rejection however, on grounds of this kind, is itself an
exercise of jurisdiction.
----------------------------------------------------------------------------------------------------------------
[p 102] No doubt there is a duty in principle for an international tribunal
to hear and determine the cases it is both seised of, and competent to go
into; and therefore, equally to consider the question of its competence. But
there must be limits to this duty. In order to see what these may be, it
will be necessary to discuss the general relationship between jurisdiction
or competence on the one hand, and, on the other, the considerations which
may cause a tribunal to refuse to proceed to the merits.
*
The line between questions of jurisdiction (which basically relate to the
competence of the Court to act at all) and questions of admissibility,
receivability or examinability (which relate to the nature of the claim, or
to particular circumstances connected with it) FNl is apt in certain cases
to get blurred. For this reason, international courts have tended to
decline to draw too hard and fast a distinction, or to sub-categorise too
rigidly the general category of "preliminary objections", or else they have
declared the distinction to be of secondary importance FN2; and there have
certainly been cases in which a claim has been pronounced to be
inadmissible, even though the objections on the score of jurisdiction had
not been fully disposed of, so that strictly the court might not be
competent to act at all FN3. Per contra, there have been cases in which a
court has found itself to be competent, yet has refused to proceed any
further, on what were essentially grounds of propriety FN4.
----------------------------------------------------------------------------------------------------------------FN1
See generally, British Year Book of International Law for 1958, pp. 8-25,
and Rosenne, The International Court of Justice, pp. 249-259.
FN2 See the Permanent Court in the Mavrommatis and Polish Upper Silesia
cases (P.C.I.J., Series A, No. 2, p. 10 and No. 6, p. 19).
FN3 See the Interhandel case (Jurisdiction), I.C.J. Reports 1959, p. 6, in
which the present Court upheld a plea of inadmissibility, although an
objection t0 its jurisdiction was still outstanding, and was never disposed
of. The immediate result is the same, but not necessarily in the long run;
for a successful objection t0the jurisdiction necessarily terminates the
affair once and for all, whereas some pleas of inadmissibility (e.g. that
local remedies have not been exhausted) relate to defects that may be cured
by the subsequent action of the party concerned.
FN4 In the Monetary Gold case (I.C.J. Reports 1954, at pp. 31-33) the Court,
while expressly finding that jurisdiction had been conferred upon it by the
Parties, declined to exercise it because of the absence of another State
which the Court regarded as a necessary party to the proceedings.
----------------------------------------------------------------------------------------------------------------
A given preliminary objection may on occasion be partly one of jurisdiction
and partly of receivability, but the real distinction and test would seem to
be whether or not the objection is based on, [p 103] or arises from, the
jurisdictional clause or clauses under which the jurisdiction of the
tribunal is said to exist. If so, the objection is basically one of
jurisdiction. If it is founded on considerations lying outside the ambit of
any jurisdictional clause, and not involving the interpretation or
application of such a provision, then it will normally be an objection to
the receivability of the claim (see further in Part V hereof).
I have however pointed out elsewhere FN1* that the classification of
preliminary questions into the two categories of jurisdictional questions
and admissibility questions is oversimplified, and can be misleading when it
comes to considering and determining at what stage and in what order given
objections, of either kind, can properly be acted upon—for each category is
capable of subdivision into (a) questions which, while remaining preliminary
(in the sense of preliminary to the merits), are substantive in character,
and (b) questions which are of a wholly antecedent or, as it were,
"pre-preliminary" character. Considerations of propriety or suitability will
certainly figure amongst the latter. Thus in the jurisdictional field, there
is the substantive or basic jurisdiction of the Court (Le. to hear and
determine the ultimate FN2* merits), and there is the possibility of
(preliminary) objections to the exercise of that jurisdiction. But also,
there is the Court's preliminary or "incidental" jurisdiction (e.g. to
decree interim measures of protection, admit counterclaims or third-party
interventions, etc.) which it can exercise even in advance of any
determination of its basic jurisdiction as to the ultimate merits; even
though the latter is challenged; and even though it may ultimately turn out
that the Court lacks jurisdiction as to the ultimate merits FN3*. Although
much (though not all) of this incidental jurisdiction is specifically
provided for in the Court's Statute, or in Rules of Court which the Statute
empowers the Court to make, it is really an inherent jurisdiction, the power
to exercise which is a necessary condition of the Court— or of any court of
law—being able to function at all. Nevertheless, there may in particular
cases be objections (which would accordingly be of a pre-preliminary
character) to the Court being entitled to exercise this power in relation to
some specific part of its incidental jurisdiction. For example. a request
for interim measures may be met either with a denial that, on their merits,
these should be granted, or with a challenge to the right of the Court to
grant them, [p 104] or the propriety of its doing so in the given case—in
effect a jurisdictional issue FN1.
----------------------------------------------------------------------------------------------------------------FN1*
See for instance British Year Book of International Law for 1958, pp. 56-60.
FN2* There may be intermediate issues of merits—e.g. where interim measures
of protection are requested, but the necessity for them is contested on the
merits.
FN3* This occurred in the Anglo-Iranian Oil Company case, in which the Court
granted a request for the indication of interim measures in advance of any
decision as to its competence to go into the ultimate merits, on the basis
that it could have such competence (I.C.J. Reports 1951, at pp. 92-93); but
in the subsequent jurisdictional phase of the case the Court decided that
it had not—which entailed automatically the cancellation of the interim
measures (I.C.J. Reports 1952, at p. 114).
FN1 According to its settled jurisprudence, the Court will not insist on its
jurisdiction in respect of the ultimate merits being affirmatively
established before it grants a request for interim measures. On the other
hand, it will not grant the request if it is clear, even at that stage, that
there is not any possible basis on which it could be competent as to the
ultimate merits—see British Year Book of International Law for 1958, pp.
109-114.
----------------------------------------------------------------------------------------------------------------
It is thus clear that arising from its seisin—that is to Say from the fact
of being duly seised of a case by means of a formally valid application
stating the grounds of the claim, and the grounds upon which it is contended
that the Court is competent to entertain it FN2, the Court, irrespective of
its substantive jurisdiction in relation to the ultimate merits, becomes
immediately possessed of a preliminary competence enabling it to do a
variety of things in relation to the case.
----------------------------------------------------------------------------------------------------------------FN2
Statute, Article 40; Rules of Court, Article 32.
----------------------------------------------------------------------------------------------------------------
*
It is in pursuance of this preliminary competence, which, as I have said, is
really inherent in the functioning of any court of law, that the Court must
be considered to have acted in the present case in declining to examine the
claim, irrespective of its competence to do so. But in considering how far
the Court is entitled to act in this way, irrespective of, and without
deciding, the question of its competence, it is necessary to bear in mind
that there are also different categories of preliminary objections of a
non-jurisdictional character, and that the category of questions of
receivability is itself sub-divisible.
The essence of any preliminary objection (and this applies as well to
receivability as to jurisdictional objections) is that, if good, it holds
good and brings the proceedings to an end FN3*, irrespective of the
plaintiff State's ability to prove its case on the merits. But in the field
of admissibility or receivability, some objections clearly cannot, or ought
not, to be gone into or decided until after the competence of the tribunal
is fully established; whereas others can, and must, be taken in advance, and
irrespective of any determination of competence. An example of the former
category would be pleas of inadmissibility closely connected with the
merits, such as the objection ratione temporis in the present case, whereby
it was sought to exclude in limine any complaints about acts or events
taking place prior to the Applicant State's admission to the United Nations
(see Part V hereof). Another case would be a plea of inadmissibility
relating to defects which are capable of being cured [p 105] by appropriate
action, such as a plea of non-exhaustion of local remedies: if the plaintiff
State is able to cure the defect, it would obviously be absurd for it to
return to the Court, only to find that the latter then declared itself to be
incompetent on jurisdictional grounds. Therefore, all jurisdictional issues
should be disposed of first in such a case FN1.
----------------------------------------------------------------------------------------------------------------FN3*
Except of course where the objection is joined to the merits or in the type
of case mentioned in note 3 on p. 102.
FN1 That this was not done in the Interhandel case (see footnote 3, p. 102
above), was due to the special character, and allegedly "moot" status of the
jurisdictional objection ostensibly left open.
----------------------------------------------------------------------------------------------------------------
There are however other objections, not in the nature of objections to the
competence of the Court, which can and strictly should be taken in advance
of any question of competence. Thus a plea that the Application did not
disclose the existence, properly speaking, of any legal dispute between the
parties, must precede competence, for if there is no dispute, there is
nothing in relation to which the Court can consider whether it is competent
or not. It is for this reason that such a plea would be rather one of
admissibility or receivability than of competence. In the present case, this
particular ground of objection arose as one of competence, because the
jurisdictional clause invoked, namely Article 19 of the Trust Agreement,
itself required the existence of a dispute. But irrespective of the
particular language of the jurisdictional clause, the requirement that there
must be an actual dispute in the proper sense of the term, and not merely
(for instance) a simple difference of opinion, is a general one, which must
govern and limit the power of any tribunal to act. For reasons I shall give
later, I consider that there was not, in this sense, a dispute in the
present case.
Very similar considerations apply to the plea that the Application should
not be entertained on the ground that, owing to events occurring since it
was filed, it has manifestly lost all raison d'étre— that it has become
"moot"—so that a decision on the merits would be objectless. There would
clearly be an element of absurdity .in the Court going through all the
motions of establishing its jurisdiction, if it considered it must then in
any event decline to examine the claim on this ground, however competent it
might be to do so. This ground is in fact one of those on which the Court
has, and rightly, declined to act in the present case.
In the same way, if the Court considered (as it did in the Monetary Gold
case—supra, p. 102, note 4) that because of the absence of a necessary
party, it could not examine the claim, this is a conclusion which would make
a decision on competence unnecessary FN2*, and [p 106] even impossible if
the presence of that party was required not only for a determination of the
merits, but also of the question of competence—as the Court might well have
held in the present case in relation to the Federation of Nigeria.
----------------------------------------------------------------------------------------------------------------FN2*
Except where a joinder of the party in question was possible and seemed
probable: for it would be pointless to effect the joinder unless the Court
was competent—see pp. 102 and 104 supra, and footnote 3 on p. 102
---------------------------------------------------------------------------------------------------------------
A similar sort of position must arise where the objection touches not so
much the substance of the claim, as the character of what the Court is
requested to do about it, having regard to the surrounding circumstances—as
for instance if the Court is asked to do something which does not appear to
lie within, or engage, its judicial function as a court of law. In cases of
this kind, the question of competence or jurisdiction becomes irrelevant,
for it would be inappropriate, and even misleading, for the Court to avoid
the issue by simply finding itself to lack jurisdiction, even if it did lack
it; or alternatively, to find itself to be competent when it was manifest
that it could not in any event exercise that competence for a priori reasons
touching the whole nature of its function as an international tribunal and
judicial institution.
*
It is in the manner above indicated that the dismissal of a claim on what
are essentially grounds of propriety, and irrespective of competence, can be
reconciled with the general rule that if the Court is in fact competent, .it
must exercise its competence and proceed to the merits unless the claim
falls to be rejected for some reason of inadmissibility arising on its
substance; for the issue of propriety is one which, if it arises, will exist
irrespective of com-petence, and will make it unnecessary and undesirable
for competence to be gone into, so that there will be no question of the
Court deciding that it has jurisdiction but refusing to exercise it.
*
There is another reason also for postulating a certain latitude for the
Court, on grounds of policy or propriety, to decline in limine to entertain
claims that it might be competent to go into, and which might not be open to
objection on grounds of straight inadmissibility. In the general
international legal field there is nothing corresponding to the procedures
found under most national systems of law, for eliminating at a relatively
early stage, before they reach the court which would otherwise hear and
decide them, claims that are considered to be objectionable or not
entertainable on some a priori ground. The absence of any corresponding
"filter" [p 107] procedures in the Court's jurisdictional field FN1 makes it
necessary to regard a right to take similar action, on similar grounds, as
being part of the inherent powers or jurisdiction of the Court as an
international tribunal.
----------------------------------------------------------------------------------------------------------------FN1
It may exist in special cases—for instance the European Convention on Human
Rights provides for a screening procedure whereby claims can be declared
irreceivable before ever they reach the European Commission or Court of
Human Rights.
----------------------------------------------------------------------------------------------------------------
***
It has however been contended that the Applicant State's claim in the
present case would engage the Court's judicial function, because a judgment
in favour of that State could have effects, in the sense that it could be
put to some use; and that in any case the task of the Court is to declare
the law (dire le droit) and not to concern itself with the effects of its
decisions. This might be true if the decision could have some legal effect.
It is quite another matter when it would manifestly be incapable of any
effective legal application at all, for it then becomes a decision of a kind
a court of law ought not in principle to render.
Evidently a judgment of the Court, even if not capable of effective legal
application, could have other uses. It could afford a moral satisfaction. It
could act as an assurance to the public opinion of one or other of the
parties that something had been done or at least attempted. There might also
be political uses to which it could be put. Are these objects of a kind
which a judgment of the Court ought to serve? The answer must, I think, be
in the negative, if they are the only objects which would be served—that is,
if the judgment neither would nor could have any effective sphere of legal
application.
It was also suggested on behalf of the Applicant State during the oral
hearing, that a judgment of the Court in its favour would, or at any rate
might, have a legal effect or possible legal application, inasmuch as it
might be made the basis of further proceedings, before either the Court
itself or some other international tribunal. Whether this would be the case
can only be entirely speculative, and the Court could not in any event
render a judgment on a hypo-thetical basis of this kind.
However, prima facie, and so far as can be seen at present, no such further
proceedings would be possible without the consent of the Respondent State.
Furthermore, it would seem that the Court could not, on any subsequent
request for an interpretation of its judgment (if it had given one on the
merits), declare by way of purported interpretation, that the judgment gave
rise to obligations [p 108] that had not been asserted in the original
claim, and the merits of which (having regard to the considerations set out
in the second half of Part 1 of the present Opinion) would never have been
gone into. This would not be to interpret the judgment, but to give effect
to a new claim, and without any investigation of it as such, or into the
question whether the irregularities, on this hypothesis found to have
occurred, had actually been the cause of the result complained of. In the
Right of Asylum (Interpretation of Judgment) case, the Court was emphatic
that it could not, by way of interpretation of its Judgment in the original
Right of Asylum case, pronounce upon what was essentially a new claim. It
said (I.C.J. Reports 1950, at p. 403) that the gaps which the Applicant
State claimed to have discovered in its original Judgment were "in reality
... new questions which cannot be decided by means of interpretation.
Interpretation can in no way go beyond the limits of the Judgment, fixed in
advance by the Parties themselves in their submissions." The Court went on
to Say that, in reality, the object of the questions then being put to it
was " to obtain by the indirect means of interpretation, a decision on
questions which the Court was not called upon by the Parties to answer".
Similarly in the subsequent and related Haya de la Torre case (I.C.J.
Reports 1951, at p. 79), the Court declared that questions "not submitted to
the Court [by the original application] and consequently ... not decided by
it" could not be made the basis of any deduction "as to the existence or
non-existence of an obligation" resulting from the original decision. In the
present case, the question of any obligation for the Respondent State to pay
compensation or make reparation in any other form, even if the alleged
irregularities in the administration of the trust territory were
established, has not been submitted to the Court, and does not form part of
the claim.
III
THE QUESTION OF THE EXISTENCE OF ANY LEGAL DISPUTE, PROPERLY SO CALLED
The Court could, in my opinion, on another ground have reached the
conclusion that it could not examine the claim—namely that there was not,
properly speaking and in the legal sense, any dispute between the Parties at
the date of the Application to the Court. I cannot share the Court's view
that there was a dispute, because it seems to me, as I shall hope to show,
that logically the very same considerations which have led the Court to find
that it would be incompatible with its judicial function to entertain the
claim, [p 109] should also have led it to hold that there was not, in the
proper sense, any legal dispute. The two things are really different aspects
of the same basic juridical situation.
The question of the existence of a dispute would of course have arisen on
Article 19 of the Trust Agreement, if the Court had gone into that
provision. It is however, as I said earlier, a general question, which must
arise in any event since, unless there is in the legal sense a dispute,
there exists nothing which the Court, as a court of law, can deal with, even
for the purpose of determining its competence. On this point, and in order
to show that the question is one "which, strictly speaking, does not relate
to the jurisdiction of the Court: a problem which, indeed, arises prior to
any question of jurisdiction ...", I associate myself with the reasoning
contained in Part 1 of my colleague Judge Morelli's Dissenting Opinion in
the South West Africa case (Jurisdiction)—I.C.J. Reports 1962, at pp.
546-566.
It must be admitted however that it may not be easy in a given case to Say
whether a dispute exists or not—particularly where, superficially, there may
now be all the appearance of one. The Judgment of the Court, in my opinion,
proceeds on the basis that since the Parties take different views as to
whether the United Kingdom did or did not correctly administer the Trust—one
alleging and the other denying this—there must be a dispute between them.
This seems to me to beg the question. That there should be difficulty about
the matter is due to the lack of any clear definition of what is meant by a
dispute for legal purposes. It is generally accepted that if there is a
dispute, it must have existed before, and at the date of, the Application to
the Court, and that the making of the Application does not suffice per se to
create a dispute. It is also accepted that the mere assertion or denial of a
dispute is not sufficient in itself either to establish or refute its
existence; and further, that a dispute must involve something more than a
mere difference of opinion. Beyond that, there are only subjective ideas,
and there is little agreement on any objective test.
I share the view expressed in Part II of Judge Morelli's Opinion already
referred to (I.C.J. Reports 1962, pp. 566-588), that there is a minimum
required in order to establish the existence of a legal dispute, properly so
called—that is (to come very close to the language of the present Judgment
itself) a dispute capable of engaging the judicial function of the Court.
This minimum is that the one party should be making, or should have made, a
complaint, claim, or protest about an act, omission or course of conduct,
present or past, of the other party, which the latter refutes, rejects, or
denies the validity of, either expressly, or else implicitly by persisting
in the acts, omissions or conduct complained of, or by fading to take the
action, or make the reparation, demanded. If [p 110] these elements exist,
then as Judge Morelli said, it does not matter whether the claim comes
first, the rejection (in terms or by conduct) coming afterwards, or whether
the conduct comes first, followed by a complaint, protest, or claim that is
not acceded to.
However, while this definition embodies the minimum, and is also adequate to
cover the great majority of cases, it does not bring out quite clearly what
is, to me, the essential ingredient of the existence of a dispute, the one
element necessary in order to establish objectively, and beyond possibility
of argument, that there exists a legal dispute properly so-called; the
element in the absence of which the so-called dispute can only be a mere
divergence of view about matters of theoretical, scientific or academic
interest FN1. For this purpose, I accept the definition of a legal dispute
put forward by the Respondent State in this case—the United Kingdom—which,
in my opinion, constitutes a useful contribution to the clarification of a
difficult matter. According to this definition (which I shall slightly
emend) there exists, properly speaking, a legal dispute (such as a court of
law can take account of, and which will engage its judicial function), only
if its outcome or result, in the form of a decision of the Court, is capable
of affecting the legal interests or relations of the parties, in the sense
of conferring or imposing upon (or confirming for) one or other of them, a
legal right or obligation, or of operating as an injunction or a prohibition
for the future, or as a ruling material to a still subsisting legal
situation.
----------------------------------------------------------------------------------------------------------------FN1
Having regard to my earlier references to Judge Morelli's Dissenting Opinion
in the South West Africa case, it is right that I should say that from this
point on, his views diverge from mine. He considers that there is a dispute
in the present case.
----------------------------------------------------------------------------------------------------------------
Applying this test in the present case—then, since no compensation or other
form of reparation is claimed, a decision of the Court could not award any,
and consequently could not impose any obligation to pay or afford such
compensation or other reparation, or any right to receive it. Therefore,
there can be no dispute between the Parties as to the existence of any such
right or obligation. Similarly, the Trusteeship for the Northern Cameroons
being terminated, a decision of the Court could not confer or impose any
right or obligation on either Party as regards the conduct of the Trust, or
as regards its interpretation or application. Again, the basis of
termination being irrevocable, and beyond the power of either Party to
reverse or alter, a decision of the Court could not deal with that matter.
Thus, there can be no dispute between the Parties as to the future conduct
of the Trust (since it no longer exists), or as to what should be done about
the basis of the termination of the Trust, [p 111] since this is admitted to
be irreversible, and no claim that it can or should be altered is put
forward.
In short, a decision of the Court neither would, nor could, affect the legal
rights, obligations, interests or relations of the Parties in any way; and
this situation both derives from, and evidences, the non-existence of any
dispute between the Parties to which a judgment of the Court could attach
itself in any concrete, or even potentially realizable, form. The conclusion
must be that there may be a disagreement, contention or controversy, but
that there is not, properly speaking, and as a matter of law, any dispute.
To state the point in another way, the impossibility for a decision of the
Court in favour of the Applicant State to have any effective legal
application in the present case (and therefore the incompatibility with the
judicial function of the Court that would be involved by the Court
entertaining the case) is the reverse of a coin, the obverse of which is the
absence of any genuine dispute.
Since, with reference to a judicial decision sought as the outcome of a
dispute said to exist between the Parties, the dispute must essentially
relate to what that decision ought to be, it follows that if the decision
(whatever it might be) must plainly be without any possibility of effective
legal application at all, the dispute becomes void of all content, and is
reduced to an empty shell.
IV
ARTICLE 19 OF THE TRUST AGREEMENT. THE QUESTION OF JURISDICTION
Even if, for the reasons given above, and in the Judgment of the Court
itself, I did not consider that the Court is entitled to hold, and right in
holding, that it should not examine the claim of the Applicant State, and
need not go into the question of its jurisdiction to do so, I should in any
event hold that it did not possess such jurisdiction, for broadly the same
reasons, mutatis mutandis, as those contained in Parts V, VI and VII of the
Joint Dissenting Opinion which my colleague Judge Sir Percy Spender and I
wrote in the South West Africa case (Jurisdiction) (I.C.J. Reports 1962, at
pp. 518-526 and 547-563).
However, I share the view expressed by Judge Sir Percy Spender in his
Separate Opinion in the present case, that this case has features of its own
relative to the question of jurisdiction, that require to be dealt with. I
am in general agreement with his Opinion and associate myself with it. I can
therefore confine my own remarks to certain points I specially want to make.
Moreover, having regard [p 112] to what is said in Judge Sir Percy Spender's
Opinion, I need not deal with the additional reasons which exist in the
present case for thinking that such clauses as Article 19 of the Trust
Agreement must be interpreted and applied so as to avoid the unreasonable
and impossible conflicts (of which the present case could have afforded, and
indeed did potentially afford, a conspicuous example) liable to arise if the
Court is regarded as having a concurrent jurisdiction with the appropriate
political organ or organs, in order to supervise the conduct of the Trust.
For the purposes of what follows, I shall assume that, contrary to the views
expressed in Part III above, there is a dispute within the meaning of
Article 19, since otherwise cadit quaestio.
***
I. The scope of Article 19.
(a) Analysis of the provisions of the Trust Agreement. What rights did it
confer on what States or other entities?
The jurisdictional clause of the Trust Agreement for the former British
Cameroons, Article 19, was as follows:
"If any dispute whatever should arise between the Administering Authority
and another Member of the United Nations relating to the interpretation or
application of the provisions of this Agreement, such dispute, if it cannot
be settled by negotiation or other means, shall be submitted to the
International Court of Justice provided for in Chapter XIV of the United
Nations Charter."
The central issue of jurisdiction arising on this clause (as on Article 7 of
the Mandate for South West Africa FN1), is what are the provisions here
intended to be referred to by the words "the provisions of this Agreement".
In my opinion, these words must be read as if they were followed by the
phrase "in respect of which that Member enjoys substantive rights under the
Agreement". Before giving my main reason for this view, I must briefly state
the nature of the Trust Agreement.
----------------------------------------------------------------------------------------------------------------FN1
But in the South West Africa case there was a second central issue arising
on the jurisdictional clause, which does not arise in the present case—see
I.C.J. Reports 1962, at pp. 504 ff.
----------------------------------------------------------------------------------------------------------------
Like the former Mandates (and the one remaining one), and like most FN2* of
the other Trusteeships, the British Cameroons Trusteeship involved two
classes of provisions—that is of substantive provisions, for Article 19,
being a purely jurisdictional clause, stood by itself [p 113] and apart from
the substantive provisions. The two classes of the latter were (u)
provisions as to the rights and obligations of the Administering Authority
(the United Kingdom) for the administration of the Trust in the interests
of the population of the Trust Territory—which it will be convenient
hereinafter to call "conduct of the Trust" provisions or articles; and (b)
provisions in which rights, mainly of an economic or establishment character
(equality of treatment. non-discrimination., right" to enter. travel or
reside in the Territory, to own property there, etc.), were conferred on the
Members of the United Nations as a class, for themselves individually as
States, or for their nationals. It will be convenient hereinafter to call
the provisions in this category "national rights" provisions or articles.
----------------------------------------------------------------------------------------------------------------FN2*
Significantly, all those Trusteeships which only contained provisions about
the administration of the Trust in the interests of the population of the
Trust Territory (and did not confer commercial or other rights on Members of
the United Nations), did not contain any jurisdictional or adjudication
clause.
----------------------------------------------------------------------------------------------------------------
The complaint of the Applicant State in the present case (as with that of
the two Applicant States in the South West Africa case) related exclusively
to the former category of provisions (conduct of the Trust). The Applicant
did not invoke or make any claim or complaint in respect of the national
rights provisions of Articles 9, 10, 11 and 13.
Three further points require to be stressed:
First, the mention of Members of the United Nations occurred exclusively in
the Articles conferring rights upon them in their individual capacity or
upon their nationals—Articles 9, 10, 11 and 13. They were not mentioned in
any of the conduct of the Trust provisions or even in those of the Preamble
to the Agreement. All these provisions referred only to the Administering
Authority, or to organs of the United Nations such as the General Assembly
or the Trusteeship Council. Correspondingly, these organs were not
mentioned in any of the national rights articles, although the
Administering Authority naturally was. Thus it can be plainly seen that one
of these two categories of provisions (conduct of the Trust) created a link
exclusively between the Administering Authority and the United Nations as
an entity, or certain of its organs; while it was only the other category
(of national rights provisions) that created any link or contractual tie
between the Administering Authority and the Members of the United Nations
individually.
Secondly, to make the picture thus presented even clearer, the Trust
Agreement was concluded by being embodied in a resolution of the United
Nations Assembly, and it has been common ground throughout the present case
that the sole entities formally parties to it were the Administering
Authority on the one hand, and the United Nations represented by the General
Assembly on the other, and that the Members of the United Nations, as such,
were not [p 114] individually parties to the Agreement. The particular
rights they individually possessed under certain clauses of it (and those
only) were in effect "third-party" rights. It was admitted on behalf of the
Applicant State that the Members of the United Nations were third parties in
relation to the Trust Agreement, although it was sought to argue that they
were a "somewhat special" kind of third party. But it was not seriously
suggested that they could, in relation to the Agreement derive direct
individual rights from their corporate Membership of the entity which alone
was, and as such, a party to the Agreement.
Thirdly, although the point is a lesser one, it is worth noticing that,
whereas the organs of the United Nations could be relied upon to supervise
the execution of the conduct of the Trust provisions with which they were
directly concerned, they might well feel no particular interest in the
enforcement of the national rights provisions. It was in this latter respect
that the role of the Court under Article 19 was a necessary one. It was not
in any other respect necessary, given the functions to be carried out by the
organs of the United Nations in supervising the administration of the Trust—
functions involving a far closer control than any which the League of
Nations had exercised in respect of the former Mandates.
*
The situation just described can, in my opinion, lead to only one valid
legal conclusion, which is that to be stated in the next sub-section.
(c) Did the Applicant State have the capacity to invoke Article 19 in
respect of matters relating to the conduct of the Trust?
The real issue that arises on the scope of Article 19 is not what provisions
of the Trust Agreement it relates to (its actual language is quite general)
but under what provisions the individual Members of the United Nations had
rights which they could assert by invoking Article 19. This must be so
because it is axiomatic that a State can only invoke the jurisdictional
clause of an international agreement in respect of, and in order to assert,
rights which (whether as a party to the agreement, or on a "third-party"
basis) that State possesses, under or in relation to one or more of the
provisions of the agreement. If there are provisions of the agreement
relative to which it is clear, a priori, that the State concerned has and
can [p 115] have no substantive rights, then it must necessarily lack
capacity to invoke the jurisdictional clause in respect of them FN1.
----------------------------------------------------------------------------------------------------------------FN1
This is of course quite a different question from the question—which can
only arise on the merits of any given case—whether, if a State "qualifies"
as possessing rights under a particular provision of a treaty, those rights
have in fact been violated. The question of qualification itself, is a
preliminary one affecting the Capacity of the State concerned to invoke the
jurisdictional clause of the treaty, and hence affecting the competence of
the Court.
----------------------------------------------------------------------------------------------------------------
The conclusion just stated results directly and inevitably from the
universally accepted principle that, whatever the apparent generality of its
language ("any dispute whatever" relating to "the provisions" of the
Agreement), a purely jurisdictional clause, such as Article 19 of the Trust
Agreement, cannot confer substantive rights. The substantive rights it
refers to must be sought elsewhere, either in the same instrument or in
another one. All a jurisdictional clause can do, is to enable any such
rights, whatever they may be (and if they independently exist), to be
asserted by recourse to the tribunal provided for—this provision being the
real purpose of a jurisdictional clause, and all it normally does.
Thus, in the present case, the scope of Article 19 is necessarily governed
not only by what it says itself, but also, and even more importantly, by
whet rights were conferred by the rest of the Trust Agreement, and on what
parties or entities. As has already been seen, the Trust Agreement only
conferred separate substantive rights on Members of the United Nations
individually, by Articles 9, 10, 11 and 13, which are not invoked in the
present case. No rights for Member States, as such and individually, were
conferred by any of the remaining provisions, which relate to the conduct of
the Trust. Hence Article 19 can only be invoked by individual Member States
in respect of the former class of provisions, for only under these did the
separate Member States possess rights in their individual capacity. This is
not merely a valid, but a necessary conclusion, and for the following reason
also.
There are in general only two ways in which a State can, as such and
individually, claim rights under a treaty: (i) the State may be an actual
party to the treaty, in which case (subject of course to any specific
exceptions or exclusions contained in the treaty itself) such State will
have rights in relation to the treaty as a whole, and can invoke all its
provisions, without needing to be expressly indicated as entitled to do so
under one or more specific provisions; or (ii) though not a party, a State
can enjoy rights if these are expressly conferred on it eo nomine, or as a
member of a named or indicated class. But from this it follows that, in case
(ii), a non-party State can claim only the actual rights conferred on
non-parties, [p 116] and could not claim rights in respect of any other
provision of the treaty. Therefore, in the present case, the Members of the
United Nations, not being individually parties to the Trust Agreement, could
claim rights only under the national rights provisions, and could not
individually claim them in respect of the conduct of the Trust provisions.
It follows that, since Article 19 could only be invoked by a Member State in
respect of the substantive rights it possessed under the Trust Agreement,
and since the individual Members of the United Nations did not, as such,
possess rights under the conduct of the Trust provisions (being neither
named in them nor separate parties to the Agreement as a whole), they could
not invoke Article 19 in respect of those provisions.
Whatever the generality of its language, Article 19 must be read subject to
the fundamental consideration that it is only a jurisdictional clause, not
conferring any substantive rights. The difficulty is not that Article 19 is
incapable on its language of applying to the conduct of the Trust
provisions, if the Member States had, in their individual capacities, any
rights under these. But they had not; and Article 19 (being a purely
jurisdictional provision) could not by itself create them. It could operate
only in respect of rights which the party invoking it already possessed. The
Applicant State in the present case had, as a non-Party to the Trust, no
individual rights under the conduct of the Trust provisions which alone it
cites, and therefore cannot invoke Article 19 in respect of them. In short
the Applicant State lacks the capacity to invoke Article 19 in respect of
the only provisions of the Trust which are the subject of its complaint; and
if the Applicant State lacks this capacity, then the Court can have no
jurisdiction to entertain a claim which, in effect, the Applicant State has
no legal right to make.
*
The foregoing conclusion, stated in this particular way—i.e. on the basis
not so much of the scope of Article 19, as of the incapacity of Members of
the United Nations to invoke it in respect of provisions under which they
had no direct rights—seems to me incontrovertible in the present case, and
I have wanted to stress this way of looking at it for two reasons which are
peculiar to the present case as compared with the South West Africa case.
First, whereas in that case it was arguable (though not in my opinion
correctly so—see I.C.J. Reports 1962, pp. 499-502) that if the Mandate for
South West Africa was a treaty, the Members of the former League of Nations
were all individually parties to it, this is [p 117] not possible in the
present case. It is admitted that they were not parties to the Trust
Agreement, and that the United Nations in its corporate capacity was the
sole party, apart from the Administering Authority.
Secondly, whereas in the days of the League of Nations it might not
universally have been considered that a body such as the League of Nations
was, as an entity, possessed of international personality over and above,
and distinct from, the aggregation of its Member States, so that it might
lack treaty-making capacity (see I.C.J. Reports 1962, p. 475, note 1), the
Court in the case of Injuries to United Nations Servants recognized once and
for all the separate and distinct international personality of the United
Nations (I.C.J. Reports 1949, at p. 179). Its capacity to enter into or be a
party to international agreements is admitted—and it has frequently been
exercised FN1.
----------------------------------------------------------------------------------------------------------------FN1
See also Article I of the General Convention on the United Nations
Privileges and Immunities of 13 February 1946.
----------------------------------------------------------------------------------------------------------------
The conclusion which inevitably follows from and is necessitated by these
unquestionable legal facts, and by the position of the United Nations, in
its corporate capacity, as the sole other party to the Trust Agreement, is
and must be that the interest of the individual Member States in the conduct
of the Trust was exercisable and realizable only through the corporate
machinery and action of the United Nations. This is the answer—at least in
the present case—to the contention that all Member States had an interest in
the conduct of the Trust; they had it, but they could exercise it only
through the United Nations, and net through the Court, except as regards
provisions of the Trust conferring national rights on them as separate
States. This conclusion is not affected by the fact that, in the present
case, geographical propinquity gave the Republic of Cameroon a greater
interest in the conduct of the Trust than was possessed by most other Member
States. This could not suffice to entitle the Republic to exercise or
realize that interest except through the machinery of the United Nations;
for that interest, during the currency of the Trust, was bound up with that
of the United Nations, and of the whole Trusteeship System, and could not be
independently served or dealt with. And clearly the Applicant State cannot
now have other or greater rights or capacities than it enjoyed while the
Trust was still in force.
***
(c) The contention that the termination of the Trust was not part of the
conduct of the Trust.
The Respondent State in the present case, while making the considerations
just discussed one of its main contentions, also put [p 118] forward an
additional argument, to the effect that even if Article 19 were regarded as
applying to all the provisions of the Trust Agreement, and the Applicant
State as having rights under (and as being entitled to invoke) them all, the
present case would still not be covered, since it related not to the
conduct, but to the termination of the Trust, its incidents and outcome, and
this was a matter on which the Trust Agreement was wholly silent. It was
part of this contention that although the Applicant State did indeed invoke
specific provisions of the Trust, and alleged violations of them, it did so
only as part of, or in order to lead up to, the complaints relating to the
termination of the Trust.
This contention does not seem to me to be well founded. The latter part of
it only goes to the motives which the Applicant State may have had in
alleging violations of specific provisions of the Trust: it does not alter
the fact that they were alleged. Whether the Applicant State would in fact
ever have made these allegations except in the context of the termination of
the Trust may be doubted; but there can be no doubt that it could have
invoked these provisions FN1, in order to allege irregularities in the
conduct of the Trust, quite independently of the Trust's prospective
termination, and even if there had been no immediate question of that. In
short, allegations of irregularities in the conduct of the Trust, whether
justified or not, retain their status as such whatever the aim with which
they are made.
----------------------------------------------------------------------------------------------------------------FN1
Assuming, that is, for purposes of the argument, that Article 19 of the
Trust related to these provisions at all.
----------------------------------------------------------------------------------------------------------------
Moreover, even if it is literally true that Article 19 speaks of disputes
about "the provisions" of the Trust Agreement, and that there are no express
provisions about termination, I think that eventual termination must be
regarded as being inherent in the declared aim of the Trust, namely of
"progressive development towards self-government and independence" (see
Article 76 (b) of the United Nations Charter, and the reference in Article 3
of the Trust Agreement to the "basic objectives of the International
Trusteeship System laid down in -Article 76 of the... Charter"). Since the
attainment of these ends "in accordance with the freely-expressed wishes of
the peoples" (Article 76 (b)) is regarded as being, if not the whole object,
at any rat6 the chief raison d'être of the Trusteeship System, it seems to
me difficult not to regard steps taken for that purpose, or in the actual
process of its realization (plebiscites, etc.), as being an implied part of
the whole conduct of the Trust. I would therefore have to hold that the
jurisdictional clause of the Trust Agreement must be regarded as covering
disputes about the termination of the Trust, if I regarded that clause as
relating to the conduct of the Trust at al]. I have thought it right to go
into this [p 119] matter, since some emphasis was laid upon it in the
arguments of the Respondent State.
***
2. The question of settlement by negotiation or other means.
Article 19 required, finally, that the dispute should be one that could not
be settled "by negotiation or other means", and was not. The right to have
recourse to the Court, and the competence of the Court to entertain the
claim, therefore depended on, and could not arise unless and until, attempts
to satisfy this condition had been made and had failed.
(a) Was there any such settlement?
It has been contended that the whole matter was in fact settled "by other
means", namely when the United Nations Assembly adopted resolution 1608 (XV)
of 21 April 1961. As will be indicated presently (p. 123), the phrase
"settlement ... by other means" in Article 19, strictly denotes a settlement
arrived at by the parties themselves, by or through other means than
negotiation (e.g. conciliation, arbitration, etc.), which they have agreed
to resort to—rather than a settlement arrived at independently by some third
entity, with or without their concurrence. Nevertheless, this contention of
the Respondent State is a material one requiring consideration. Moreover,
there is a good deal in the Judgment of the Court indirectly to warrant, or
lend colour to it, although the Judgment is not based on it, but rather on
the different, if related, view that the resolution of the Assembly, if it
did not formally settle the dispute as such, rendered it pointless, so that
any decision of the Court in regard to it would be pointless too.
But it has to be observed that the pointless character of the dispute did
not arise solely from the termination of the Trust under Assembly resolution
1608. An essential ingredient was also the absence of any claim for
compensation or other reparation for the damage supposedly caused by the
form this termination took, allegedly in consequence of the irregularities
committed by the Respondent State in the conduct of the Trust. Therefore,
the fact that resolution 1608 constituted one of the elements rendering the
dispute pointless or without object would not, since the resolution was only
part of what was necessary for that purpose, suffice to demonstrate that it
constituted in itself a complete and final settlement of the dispute.
However, the Respondent State's contention that it did, is evidently well
founded on the assumption (which was also part of the Respondent State's
case, and accords with my own view) that the Applicant State had no separate
rights in its individual, [p 120]statal, capacity under the conduct of the
Trust provisions of the Trust Agreement, but had rights only under the
national rights provisions. On that basis (which was the one contended for
by the Respondent State—correctly in my view), it was the United Nations
alone, as an entity, and as the sole party to the Trust Agreement (apart
from the Administering Authority) which, with the consent of the latter, was
entitled to deal with the general conduct of the Trust, including its
termination, and to "settle" any disputes about such matters. On that basis,
the matters here in question were indeed settled by Assembly resolution
1608.
But equally, on that basis, it would of course become irrelevant whether the
dispute was so settled or not, since (on that basis) it would not be a
dispute to which Article 19 applied at all. The contention that resolution
1608 settled the dispute for the purposes of Article 19 is relevant only on
the assumption that, under the Trust Agreement, the separate Members of the
United Nations, in their individual capacity as such, did have rights in
relation to the general conduct of the Trust which they could assert through
the medium of Article 19.
If that assumption had to be made, then I would find myself unable to accept
the Respondent State's contention that resolution 1608 settled the
dispute—for if the Applicant State did indeed possess separate individual
rights in relation to the conduct of the Trust, distinct from those of the
United Nations as an entity, the Assembly could not have been empowered to
deal with or settle a dispute between the Applicant State and a third party
(the Administering Authority) relating to those rights—at least without the
consent of the Applicant State—which, by voting against resolution 1608, did
not give its consent to any settlement such as might result from the
resolution FN1*. If, as the Respondent State contended, the Applicant
State's dispute was with the Assembly, this was a separate and additional
dispute; for the complaint of the Applicant State was not merely that the
Assembly decided to incorporate the Northern Cameroons in the Federation of
Nigeria, but also that it was the (allegedly) irregular course of conduct
pursued by the Respondent State in the administration of the Trust, which
had led the Assembly to do this. Otherwise, it was contended, the Assembly
would have decided differently. If resolution 1608 settled any dispute, it
settled the dispute between the Applicant State and the Assembly. The
arrangements made under that resolution for terminating the Trust, with the
consent of the [p 121] Administering Authority, were necessarily res inter
alios acta as respects any dispute between that Authority and the Applicant
State, concerning any separate rights the latter might have in its
individual capacity, relative to the conduct of the Trust provisions of the
Trust Agreement.
----------------------------------------------------------------------------------------------------------------FN1*
Whether the Applicant was "bound" by the resolution, in the sense that it
had to accept the fact of the termination of the Trust on the basis provided
for in the resolution is one thing, but not the same thing as whether the
resolution could debar it from pursuing any legal right of action it might
have against a third party (the Administering Authority) whose alleged
wrongful conduct was said to be responsible for this result.
----------------------------------------------------------------------------------------------------------------
The real truth is that the Applicant State did not individually have any
such rights, but had rights only in relation to the national rights
provisions of the Agreement, which were not, and never have been, in issue
in this case. The United Nations alone, as an entity, had conduct of the
Trust rights; and for that reason the Assembly resolution settled the whole
issue of the termination of the Trust. The dispute between the Applicant
State and the Respondent State proceeded on the basis of the Applicant
State's contention that it enjoyed personally and individually certain
rights under the Trust which, in my opinion, it did not in fact possess.
But, had it done so, they would have been separate rights and a dispute
about them would have been a separate dispute FN1.
----------------------------------------------------------------------------------------------------------------
FN1 Certain other considerations serve to bring out the separate character
of the dispute. It would seem that in the period March-April, 1961, the
United Kingdom as the Administering Authority, the United Nations Assembly
as the supervisory organ, and the Republic of Cameroon as a State
geographically interested, were all maintaining different, and in several
respects divergent, attitudes about the whole question of the termination of
the Trust. The United Kingdom was willing, but in no way specially anxious,
that the Trust should be terminated at that time. Its main preoccupation was
that if the Trust was to be terminated, this should be on a basis that was
workable and, so far as possible, in accordance with, or at any rate not
contrary to, the wishes of the peoples concerned. The chief aim of the
Fourth Committee and Assembly of the United Nations was to terminate the
Trust on any terms that would give the Trust Territory independence, or
voluntary incorporation in an independent African State. The Assembly was
far more concerned with terminating the Trust as soon as possible, on any
reasonable basis, than with the precise form the termination took.
The Republic of Cameroon, on the other hand, was primarily concerned with
the basis of termination. Rather than accept the form it did take, the
Republic would have preferred the Trust to continue, in so far as the
Northern Cameroons was concerned, and not to terminate
.
It seems therefore that three quite distinct attitudes existed on the
question of termination: on the part of the United Kingdom, neutrality, that
is willingness either to terminate or to carry on, as the Assembly might
direct: on the part of the Assembly, a very definite desire to terminate on
any reasonable and defensible basis; but on the part of the Republic of
Cameroon, a desire not to terminate except on the basis that the Northern
Cameroons would go to the Republic.
Moreover, the essence of what the Republic of Cameroon has contended is
that, but for certain irregularities allegedly committed by the United
Kingdom in the administration of the Trust, and in the conduct of the final
plebiscite, the outcome would have been different, and the Assembly would
have decided to incorporate the Northern Cameroons in the Republic of
Cameroon. Whether this would have been the case or not can only be
speculative; but its relevance to the jurisdictional question is that the
Republic is not seeking to reverse or impugn the validity of the Assembly
resolution terminating the Trust. What the Republic says in effect, is that
this resolution never would have been adopted, but for the alleged United
Kingdom maladministration of the Trust, and misconduct of the plebiscite.
It seems clear therefore that these allegations on the part of the Republic
involve an issue distinct from the one that was before the Assembly, and not
settled by it. The allegations made by the Applicant State involved an issue
such as the Assembly was not entitled to settle, if the Applicant State was
entitled to make these allegations. It was not in fact entitled to make them
because it had no individual rights under the conduct of the Trust
provisions of the Agreement. Had it had any, they would necessarily have
been separate from those of the United Nations, since it is precisely in
this, that their separate character would have consisted.
----------------------------------------------------------------------------------------------------------------
***[p 122]
(b) Would the Parties in any case have had any authority or capacity to
settle the dispute by negotiation or other means?
The requirement that the dispute should be one that "cannot be settled by
negotiation or other means" is clearly meaningless as a condition of the
right to have recourse to the Court, and of the competence of the Court to
act if such a recourse is attempted, unless two presuppositions are made.
These are (1) that the dispute should be one which, in its nature, is
capable of being settled directly between the parties by negotiation or
other means (for if not, it cannot be the kind of dispute contemplated by
Article 19); (2) that there shall have been at least some actual attempt at
settlement between the parties, by negotiation or other means, such as could
afford a basis for a finding by the Court that the dispute could not be so
settled, and that in consequence the Court was now competent to settle it by
means of a judicial decision. It is, or should be, obvious that a proposal
for a reference to the Court, such as was contained in the Applicant State's
Note of I May 1961, addressed to the United Kingdom Government, could not
itself constitute an attempt at settlement for the purposes of Article 19,
since that Article made it a pre-condition of any obligation to have
recourse to the Court that independent attempts at settlement should already
have been made, and have failed. It will be convenient to consider this
latter question first.
(h) Properly speaking, was any attempt at a settlement ever made, other than
proposal for a reference to the Court?
Article 19 is an absolutely common-form jurisdictional clause such as
appears, or has appeared, in scores, not to Say hundreds, of treaties and
other international agreements. Its meaning is perfectly well understood by
international lawyers the world over. What it contemplates in the present
connection is a settlement or attempted settlement directly between the
parties—-by negotiation or [p 123] other means. By "other means" is meant
such things as conciliation, arbitration, fact-finding enquiries, and so on.
Under Article 19 of the Trust Agreement, an attempt at settlement by
negotiation, or by one or other of these means, would have had to precede
any proposal for a reference to the International Court, before any
obligation to have recourse to the Court could arise. It is quite clear that
no such attempt at settlement, at least by any normally envisaged "other
means", was made in the present case; and here it may be useful to recall
that in a common-form jurisdictional clause such as Article 19, settlement
by "other means" denotes a settlement by means other than negotiation, but
nevertheless by means such as the parties have jointly agreed to resort to
or employ. It does not include means imposed by the one party on the other,
or on both of them by an outside agency. The whole point of the ultimate
reference to the Court (to which the parties have duly agreed under the
jurisdictional clause) is that they have not been able to settle the dispute
themselves, by negotiation or agreed other means. To meet that possibility,
the parties have agreed in advance to one, but only one, form of compulsory
settlement—the ultimate reference to the Court. They cannot (via the
reference to "other means") be held to have agreed in advance to any other
(necessarily unspecified) form of compulsory settlement.
*
Was there any attempt at settlement by "negotiation", and what does
negotiation mean? It does not, in my opinion, mean a couple of States
arguing with each other across the floor of an international assembly, or
circulating statements of their complaints or contentions to its member
States. That is disputation, not negotiation; and in the Joint Opinion of
Judge Sir Percy Spender and myself in the South West Africa case, we gave
reasons for not regarding this kind of interchange as constituting a
negotiation within the contemplation of such a provision as Article 19 of
the Trust Agreement.
It was there equally pointed out that, even if it were possible to regard
such interchanges as constituting negotiation according to the generally
received concept of that term, it would still not be right to hold that a
dispute "cannot" be settled by negotiation, when the most obvious means of
attempting to do this, namely by direct discussions between the parties, had
not even been tried— since it could not be assumed that these would
necessarily fail because there had been no success in what was an entirely
different, and certainly not more propitious, milieu. Now the only direct
interchanges between the parties in the present case were the Notes of May
1961. [p 124] The purpose of these Notes, however, was not negotiation on
the substance of the dispute, but to consider whether there should be an
agreed reference to the Court. These Notes did not even contain any proposal
for, or discussion of, a possible basis for settlement. If they involved any
negotiations at al], it was about the method of adjudicating the
dispute—i.e. the possibility of an agreed reference —to the Court by means
of a compromis—not about the substance of the dispute itself.
There were also two significant admissions made on behalf of the Applicant
State. In the fi~st place, it was conceded, and indeed strenuously
contended, that the proceedings in the United Nations Assembly in
March-April 1961, were quite separate and distinct from the dispute between
the Parties before the Court, and could in no way constitute a settlement of
that dispute. But in that case, how could the statements and discussions in
the Assembly, or made for the purpose of those proceedings, constitute a
negotiation relative to the quite separate matter of the dispute
subsequently referred to the Court? And if they consequently did not, and if
the May interchange of Notes was not a negotiation, as clearly it was not,
what negotiation ever at any time took place? Evidently none.
The second admission made on behalf of the Applicant State—it admission is
here the correct term—is that the dispute did not crystallize—did not even
receive birth until May 1961, that is until after the adoption of Assembly
resolution 1608. If that is so, then since it is not possible to negotiate
in relation to a non-existent dispute, nothing that took place previous to
May 1961 could have constituted a negotiation concerning the actual dispute
now before the Court; while the May interchange of Notes constituted not a
negotiation but the reverse.
(ii) Was the dispute one that was in its nature capable of settlement
between the parties alone, by negotiation or other weans?
The really important matter, however, in relation to the question of a
possible settlement, is that arising on the first of the pre-suppositions
mentioned on p. 122 above; for there is clearly no purpose in asking whether
any attempt at settlement by negotiation or other means ever took place, if
the dispute was one which the Parties in any event never could have had the
capacity or authority to settle by their own joint action. Clearly, the type
of dispute contemplated by Article 19 must have been one which the Parties
could have settled by negotiation or other means, if they could reach
agreement on the terms of settlement; or if they could agree on the other
means of settlement (such as arbitration, conciliation. fact-finding com-[p
125]mission, etc.), and if they agreed to abide by the result. It follows
therefore, that if the dispute was of such a character that the Parties
would not have been entitled to settle it as between themselves by any of
these methods, and without reference to, and agreement by, some other
entity, such as the United Nations, then it cannot be a dispute of the kind
contemplated by Article 19, and falls outside the scope of that provision.
In short, the dispute must relate to matters or interests which the Parties
could freely deal with themselves, if so minded and able to reach agreement.
The moment it appears that in no circumstances could the Parties ever have
settled the matters in dispute between them by any joint exercise of their
own free wills, it becomes apparent, and follows necessarily, that such a
provision as Article 19 can have no application.
In the Joint Opinion in the South West Africa case, reasons were given
(I.C.J. Reports 1962, pp. 551-552) for thinking that questions relating to
the conduct of any Mandate would, precisely, constitute an order of question
having implications going far beyond the scope of any particular dispute
between the mandatory Power and another Member of the League, and therefore
as being incapable of independent settlement between them. Exactly similar
considerations apply in the case of disputes over the conduct (or
termination) of any Trust. But there are certain differences between the two
cases which call for consideration. These arise partly from the peculiar
position of the Republic of Cameroon in the present case, as compared with
that of the two Applicant States in the South West Africa case, and partly
from a certain difference of wording in the texts of the two respective
jurisdictional clauses.
Since in the South West Africa case, the two Applicant States possessed
literally no interest whatever that was not possessed by any other Member of
the United Nations (because only conduct of the Mandate provisions were
involved), it seemed impossible to hold (as the Judgment of the Court in
that case must imply) that these two States would have, or ever could have
had, the capacity to settle with the then Respondent State (South Africa)
the issues regarding the conduct of the Mandate raised by their
Applications. In the present case, the Republic of Cameroon, racially and
geographically had an interest of its own, not possessed by other Members
of the United Nations, and it might be argued that it and the Administering
Authority had the capacity to settle a dispute regarding this individual
interest. As has already been noted however, at the time when attempts to
settle the dispute might have been made, this interest was inextricably
interwoven with the whole question of the conduct and termination of the
Trust, and of the Trusteeship System in general—matters which the Parties to
the present proceedings could not possibly have been entitled to deal [p
126] with or regulate inter se, whatever the strength of any personal
interest they, or either of them, might have possessed.
The type of settlement contemplated by Article 19 was of course such a
settlement as might have been a~ rived at, by or between the Parties (or
resulting from their joint action) previous to the date on which the
Application to the Court was made, but which was not so arrived at. It has
to be asked therefore whether, at any material time previous to 30 May 1961,
the Parties could possibly have had any right or capacity to settle the
subject-matter of the Came-roon complaint between them. Even if the
Administering Authority had been willing to agree that the territory in
question should go to the Republic of Cameroon, what capacity or authority
could it possibly have had to do a sort of private deal with the Republic to
that effect, when the Assembly was actively exercising its corporate powers
in regard to that very same matter—powers which it had both a right and a
duty to exercise under the United Nations Charter, to which both the
Republic of Cameroon and the United Kingdom were parties ? The question has
only to be asked, for it to be immediately apparent that it was not for
these States to regulate such matters, which must therefore have been quite
outside the scope of Article 19.
The other difference between the present case and the South West Africa case
is that Article ; of the Mandate for South West Africa spoke only of a
dispute that could not be settled "by negotiation", whereas Article 19
speaks of one that cannot be settled by negotiation "or other means". It
might be contended therefore that, even if it is the fact that this type of
dispute (i.e. about the conduct or termination of the Trust) is inherently
incapable of being settled by negotiation between the parties, still it
cannot have been inherently incapable of settlement by any means at all—for
instance, precisely, by action in, or by the action of, the United Nations.
The answer to this contention has, in effect, already been given— see pp.
119 and 123 above. It would involve an erroneous interpretation of the
notion of settlement by "other means" in a jurisdictional clause such as
Article 19. The term "settlement", as has been seen, denotes settlement
between, or by the action of, the parties; or by methods jointly resorted to
by them. But it is clear that the Parties in the present case would no more,
by themselves, have had the right to settle this class of dispute by these
"other means", than to do so by private negotiation. The conclusions of a
fact-finding or conciliation commission, or arbitral tribunal, could not in
any way have dealt with the United Nations interests involved, which
altogether transcended those of the Parties, and which might have been
quite at variance with those conclusions. Nor could these conclusions in any
way have bound the United Nations. In short, whether by negotiation, or by
other means, there could not have been any real settlement through the
action of the Parties alone. There was no question of [p 127] their
referring the matter to the United Nations—it was already there. But had
there been any such reference, this could only have implied a recognition of
the fact that only the United Nations could deal with the matter, which
consequently exceeded the scope of Article 19.
V
THE OBJECTION ''RATIONE TEMPORIS"
Since, in my view, the Applicant State does not have the right to invoke
Article 19 of the Trust Agreement at all in respect of the matters to which
the Application relates, and the Court consequently lacks jurisdiction to go
into the merits of any part of it, it becomes strictly unnecessary to
consider any preliminary objection which might arise on the substance of the
claim, such as the objection ratione temporis advanced by the Respondent
State, to the effect that all that part of the Applicant State's complaint
which relates to acts or events having taken place previous to the date when
it became a Member of the United Nations-(:'pre-membership" acts or events)
should be ruled out as inadmissible on that ground.
However, since the Parties devoted a considerable part of their argument to
this question, and it involves an important issue of principle, I propose to
say something about it.
This objection, to my mind, concerns the admissibility of the claim rather
than the competence of the Court, and is quite independent of Article 19 of
the Trust Agreement, in the sense that even if Article 19 applied in
principle to the present type of complaint, and the Court had jurisdiction
to entertain a complaint of that type, the objection ratione temporis in
respect of pre-membership acts and events could still be advanced in order
to rule out in limine that part of the complaint. The objection was however
treated by both sides in the case as a jurisdictional one; and by the
Applicant State as depending exclusively on Article 19, in the sense that
if, as Article 19 required, the Applicant State was a Member of the United
Nations at the moment when the dispute arose and on the date of the lodging
of the Application, and if the latter was lodged before Article 19 ceased to
be in force because of the termination of the Trust, then, seeing that
Article 19 did not in terms exclude disputes about pre-membership acts or
events, the Applicant State was automatically entitled to include complaints
about these acts and events in its Application. [p 128]
The view that the matter turns wholly on Article 19 is, in my opinion,
certainly incorrect. In their nature, questions of admissibility relating to
the substance of a claim cannot be disposed of simply by a finding that the
jurisdictional clause is in principle applicable. Thus a plea of
non-exhaustion of local remedies, or as to the "nationality" of a claim FN1,
could be advanced and could operate to rule out the claim as inadmissible,
even though all the requirements of the jurisdictional clause were met (so
that the Court could proceed to the ultimate merits but for these
non-jurisdictional objections). Indeed, preliminary objections of this kind
cannot, unless the case has some exceptional feature, be heard at all unless
the Court has jurisdiction (see pp. 104-105 above).
----------------------------------------------------------------------------------------------------------------FN1
i.e., that the claimant State is making a claim in respect of an injury to a
person or Company not of its nationality.
----------------------------------------------------------------------------------------------------------------
Since the validity of admissibility objections normally depends on
considerations lying outside the jurisdictional clause as such, it is
obviously immaterial that the latter has not specifically made the absence
of any such grounds of objection a condition of the Court being able to
proceed to the ultimate merits. The silence of the jurisdictional clause
simply leaves the matter open, to depend on general principles of law, or
possibly on other provisions of the instrument concerned. Thus in the
present case it is immaterial, and in no way conclusive, that Article 19 did
not in terms exclude pre-membership acts and events from its scope. The
truth is that Article 19 would have had expressly to include them, in order
to rule out a priori any objection to them based on independent grounds. The
case of reservations or conditions ratione temporis contained in
Declarations made under the Optional Clause of the Court's Statute is quite
a different one, and not in point, for reasons to be stated in a moment.
*
Turning now to the substance of the particular objection ratione temporis
advanced in the present case, it is clear that it could not apply to the
whole complaint, since part of the latter concerns acts and events taking
place subsequent to the Applicant State's admission to the United Nations
("post-membership" acts or events), e.g. in connection with the conduct of
the plebiscite in the Northern Cameroons. The objection is however advanced
in respect of the most important part of the Applicant State's complaint,
which alleges irregularities in the conduct of the Trust (virtually [p 129]
since its inception), but for which the result of the plebiscite would
allegedly have been different.
In my opinion, the validity of the objection ratione temporis in respect of
the pre-membership acts and events depends on whether the Applicant State is
making a separate and independent claim in respect of these, or is only
citing them in order to establish, or as part of the process of
establishing, or as relevant to its complaints about, the post-membership
acts and events. In so far as the Applicant State is not making use of the
earlier matters for the last-named purpose only, but is making them the
basis of independent complaints, the claim must, to that extent, be
considered inadmissible. The reason is, briefly, that since the Applicant
State did not exist as such at the date of these acts or events, these could
not have constituted, in relation to it, an international wrong, nor have
caused it an international injury. An act which did not, in relation to the
party complaining of it, constitute a wrong at the time it took place,
obviously cannot ex post facto become one. Similarly, such acts or events
could not in themselves have constituted, or retroactively have become,
violations of the Trust in relation to the Applicant State, since the Trust
confers rights only on Members of the United Nations, and the Applicant
State was not then one, nor even, over most of the relevant period, in
existence as a State and separate international persona.
It was argued that when States make a Declaration under the Optional Clause
of the Statute, accepting the Court's compulsory jurisdiction, they must in
terms exclude from the scope of that acceptance disputes relating to past
acts, events or situations, if they intend that there shall be such an
exclusion, or else must expressly relate their acceptance to the future
only. This however proves nothing. These States are already in existence,
and admitting that if their Declaration does not exclude the past, this will
be regarded as covered—nevertheless it would still be the case that this
could be so only in respect of those particular past acts, events or
situations (previous to the Declaration in question) which took place after
the State making it had itself come into existence, and therefore could have
rights or obligations relative to those past acts, events or situations. In
relation to anything having occurred previous to its existence as a State,
there would be no right or obligation that could be invoked under an
Optional Clause Declaration. A State might indeed perhaps have worded its
Declaration in such a way that it could, technically, be taken before the
Court in such a case, but even if the Court was formally competent, so far
as the actual language of the two relevant Declarations went, the claim
itself would have to be ruled out as inadmissible so soon as it became
clear that it related to a period in respect of which it was impossible n
priori for the defendant State to be under any obligation. [p 130]
Similarly, States cannot, by accepting the Optional Clause, create rights
for themselves in respect of a period previous to their existence as States.
If they were then in existence, they naturally could have rights in respect
of acts and events then occurring, and could later on invoke an Optional
Clause Declaration for the purpose of asserting those rights, in any case
where there had been no express exclusion of the past under the Declaration
of the other party to the dispute. But in relation to a period in respect of
which there were no rights, none can ever arise, unless by express
agreement, and no express exclusion is necessary. The whole issue is not
one of the applicability as such of the jurisdictional clause or Optional
Clause Declarations involved, but of whether, a priori, there exist, or
could exist, any rights for the assertion of which (via the Court) these
provisions exist. Much more could be said on this subject; but if the
position were not as here stated, there would be no limit to the antiquity
of the matters in respect of which claims could constantly be made, and
perpetually be liable to be re-opened.
In the present case, it comes to the same thing in practice whether the
conclusion is put in the form that the Applicant State is precluded from
making any claim in respect of pre-membership acts or events, or in the form
that complaints relative to these must be ruled out as inadmissible, except
for their probative effect in connection with the admissible post-membership
claims. Now, according to the way in which the Republic of Cameroon framed
its submissions, both in the original Application and at the close of the
oral hearing, it was undoubtedly making various pre-membership acts and
events a separate and independent ground of complaint. These were indeed an
essential element of the claim taken is a whole, and the Applicant State was
asking the Court to pronounce upon them as such. Had the Court decided to
examine the claim, I consider that these complaints would have had to be
ruled out as inadmissible. On the other hand, had the Court proceeded to
the merits on the remaining (post-membership) portion of the claim, then the
earlier acts and events could, so far as relevant, have been cited by the
Applicant State in support of, or to assist in establishing, that part of
the claim which was admissible ratione temforis.
***
I conclude by saying that, while I have thought it desirable to deal with
the matters considered in Parts IV and V of this Opinion, this does not
affect my earlier expressed view that the Court itself was right not to do
so, for the reasons given on pp. 104-106 above.
(Signed) G. G. Fitzmaurice.
[p 131] SEPARATE OPINION OF JUDGE MORELLI
[Translation]
In the operative provision of its Judgment the Court, has found "that it
cannot adjudicate upon the merits of the claim of the Federal Republic of
Cameroon". I have felt able to subscribe to such an operative provision but
cannot accept the reasons on which the Court bases its Judgment. These
reasons consist in essence of a finding that the decision requested by
Cameroon would be without object.
I cannot subscribe to such a statement and consider, on the contrary, that,
as I shall explain in the first part of this separate opinion, Cameroon's
claim is fully admissible. In my view the reason why it is not possible to
examine the merits of the claim is quite other and lies in the lack of
jurisdiction. The second part of this separate opinion will in fact be
devoted to the question of jurisdiction. This question, which was not dealt
with by the Court and which, having regard to the Court's approach, it had
no reason to deal with, cannot be avoided once the claim is deemed, as it is
iii my view, to be admissible.
I
1. The United Kingdom's preliminary objections raised, inter alia, two
questions which, in my opinion, are closely interconnected.
The first of these questions relates to the nature of the claim, that is to
Say the content and' characteristics of the decision requested of the
Court. There was discussion of whether such a decision would be a judgment
with force of res judicata or rather a mere advisory opinion; and the
question of the declaratory nature of any judgment which might be given by
the Court was also raised.
The other question raised by the United Kingdom relates to whether there is
a dispute between the United Kingdom and Cameroon.
In raising this question the United Kingdom made numerous references in its
Counter-Memorial to Article 19 of the Trusteeship Agreement in order to deny
the existence of a dispute with the features required by that Article. It
would however seem that from the beginning it was the United Kingdom's
intention to deny in general the existence of any dispute between it and
Cameroon. The argument of the non-existence of any dispute was subsequently
put forward very clearly on several occasions in the oral arguments and it
is the subject of the first of the United Kingdom's final submissions. [p
132]
In any case this is a question which could be raised by the Court proprio
motu, because of the conclusions to be drawn from a negative answer on the
basis of the Statute and the Rules of Court, and thus quite apart from
Article 19 of the Trusteeship Agreement. For according to the Statute and
Rules of Court the Court can perform its function in contentious proceedings
by giving a decision on the merits only on condition that there really is a
dispute between the parties. This is a question connected not with the
Court's jurisdiction but rather with the admissibility of the claim; it is
a question which comes before any question of jurisdiction.
2. As I have already said, the two questions just referred to, one relating
to the nature of the claim and the other to the existence of the dispute,
are closely interconnected. It might even be said that there is only a
single question: whether or not there is a dispute.
If there is no dispute, it becomes unnecessary to consider what is the
content of the decision requested of the Court and what the characteristics
of such a decision would be, with a view to making the possibility of giving
the decision and hence the admissibility of the claim depend on the content
and characteristics of the decision requested. For the non-existence of a
dispute is in itself a bar to the delivery of any judgment on the merits,
because in such a case any judgment would be without object. It is for that
reason that the claim would have to be declared inadmissible.
If on the contrary it is considered that there is a dispute (and in its
Judgment the Court has found that there is) it would be impossible to deny
that it could be settled by judicial means (subject of course to the
question of whether or not the Court has jurisdiction in connection with
that particular dispute). It is likewise unnecessary on this hypothesis to
consider, in connection with the admissibility of the claim, what the
characteristics and content of the decision would be. The characteristics
and content of the decision could not but be related to the characteristics
of the dispute. In the present case, precisely because of the particular
characteristics of the dispute (on the assumption that a dispute exists)
the judgment could only be purely declaratory. But in the international
field there can be no doubt about the possibility of purely declaratory
judgments.
3. Once it has been established that there is a dispute, there is no point,
in my view, in raising the question of whether the Applicant has an
interest, by reference to the principle recognized in certain municipal
legal systems according to which it is necessary to have an interest in
order to have a right of action.
It should be observed that the interest on which a right of action depends
in municipal law is not a substantive interest in connection with the actual
merits of the dispute. It is on the contrary an interest of a purely
procedural nature: an interest in obtaining a[p 133] decision on the merits.
In the legal systems to which I have referred this type of interest has a
very important role; it is indeed a condition for an action. This is very
readily explicable if it is borne in mind that in general such systems make
no use of the concept of dispute.
It is on the contrary on the concept of dispute that international
proceedings and, in particular, proceedings before the Court, are based.
This Court cannot exercise its function in contentious proceedings if a
dispute does not exist between the parties. Clearly a dispute implies a
reference to a (real or at least supposed) conflict of interests and hence
to substantive interests possessed by the parties. But it has already been
observed that substantive interest is something other than the procedural
interest which is required by municipal law in order to have a right of
action. This latter interest is an interest in securing a decision on the
merits. In the case of an international dispute, if such a dispute exists
(and it has already been said that the existence of a dispute constitutes in
itself a condition on which the possibility of a decision on the merits
depends) it is clear that in any case each party has an interest in the
settlement of the dispute. The interest in securing a decision on the merits
is in re ipsa, because it is a necessary consequence of the very existence
of a dispute. It is thus apparent that the concept of interest in bringing
an action has no place of its own in the field of international proceedings.
4.In my opinion a dispute consists of a clash between the respective
attitudes of the parties with regard to a certain conflict of interests.
Thus the dispute may result from a claim by one of the parties followed
either by the denial of that claim by the other party or by a course of
conduct by the other party contrary to the claim. But there may also be a
dispute resulting first of all from a course of conduct by one of the
parties against which the other party raises a protest through the assertion
that its own interest should have been achieved by a course of conduct by
the first party contrary to that which was in fact adopted.
In the present case if there is a dispute between the United Kingdom and
Cameroon it could only be one falling within the second of the above two
hypotheses, namely a dispute resulting from a certain course of conduct by
the United Kingdom on the one hand and from a protest against that conduct
by Cameroon on the other hand. In fact Cameroon has never asserted any claim
against the United Kingdom, in particular any claim for reparation on
account of the course of conduct complained of.
Since in the present case there could only be a dispute resulting from a
course of conduct and a protest, it becomes necessary to examine whether
these two constituent elements of a dispute are present. [p 134]
5. With regard to the first of these two constituent elements of the dispute
it must be observed at the outset that solely a course of conduct by the
United Kingdom subsequent to the emergence of Cameroon as an independent
State could be regarded by the latter as detrimental to its own interest.
From this standpoint the critical date is therefore I January 1960. While
the date of 20 September 1960 (admission of Cameroon to the United Nations)
is important in other respects, it is of no importance for the
establishment of whether a dispute has occurred between Cameroon and the
United Kingdom, and in particular with regard to the first of the
constituent elements of such a dispute, namely a course of conduct by the
United Kingdom which could be regarded by Cameroon, and really was regarded
by Cameroon, as detrimental to its own interest.
In order to establish, with a view to resolving the question of the
existence of the dispute, what course of conduct Cameroon finds fault with
on the part of the United Kingdom, it would be necessary to take into
account the acts if any whereby, before the Application, Cameroon's protest
was expressed, these constituting the other element of the dispute. The
question of the existence and significance of such acts will be considered
later. For the time being it is however possible at least provisionally to
refer to the complaints by Cameroon as they are set out in the Application.
In the statement of facts the Application sets out certain events or
circumstances which no doubt pre-date 1 January 1960: for example, the fact
that, two years after the establishment of the Trusteeship System, there had
allegedly been no change in the British zone in the practice instituted at
the time of the creation of the Mandate; the constitutional and
administrative reforms which occurred in 1949, in 1951, in 1954 and in 1957
within the framework of Nigerian institutions; the non-existence until 1959
of political parties other than Nigerian; indirect suffrage by show of hands
and for men only until 1959. But if regard is had to the complaints listed
in the statement of the law in the Application and on which Cameroon asks
the Court to pronounce, it is apparent that none of them relates to conduct
on the part of the United Kingdom which may be regarded as wholly prior to 1
January 1960. The first five points relate to conduct by the United Kingdom
which although begun before I January 1960, continued after that date, at
least in the form of omissions. The last two points, concerning the
February 1961 plebiscite, relate solely to conduct subsequent to 1 January
1960.
6. Consideration will now be given to the question of whether there was on
the part of Cameroon a protest against the conduct adopted by the United
Kingdom after 1 January 1960, that is to Say an assertion that the conduct
of the United Kingdom was detrimental to an interest which was Cameroon's
own interest. [p 135]
In my opinion it is necessary in this connection to leave aside the
complaints expressed by the representative of Cameroon in the Fourth
Committee of the General Assembly of the United Nations on 13 April 1961,
which had been preceded by the distribution of the Cameroon "White Book" to
all the Members of the United Nations. In expressing these complaints
through its representative Cameroon acted solely as a member of a collegiate
organ of the United Nations. Acting in this capacity it made statements of
intention designed to be combined with corresponding statements by other
members of the collegiate organ so as to shape the intention of that organ
and thereby the intention of the United Nations. It took up a position from
the viewpoint of the Organization; it was guided not by its individual
interest but by what it considered to be the interest of the Organization.
From the formal standpoint quite another character must be assigned to the
statements made on behalf of the Cameroon Government by the French
representative in the Trusteeship Council at the meetings of 18 and 23 May
1960. The Government of Cameroon, which was not yet a member of the United
Nations, and "which would speak for itself when it tooli its seat in the
General Assembly", had requested France to make known its views on the
subject of the plebiscite. The reservations and desires expressed in the
Trusteeship Council by the French representative on behalf of Cameroon no
doubt represent statements made on behalf of a State which was not yet a
member of the Trusteeship Council as a collegiate organ of the United
Nations. None the less those statements made through a State member of the
Trusteeship Council were no different in respect of their substantive
character from the state-ments made by France on its own behalf and by the
other members of the Trusteeship Council; they were no different from the
statements which Cameroon intended to make in the General Assembly after
its admission to the United Nations and which it did make in the Fourth
Committee on 13 April 1961. This was advance participation in the activity
of United Nations organs. There were statements which likewise were prompted
by the interest of the United Nations and not by Cameroon's individual
interest; they were not therefore statements expressing on Cameroon's part a
protest which could give rise to a dispute between Cameroon and the United
Kingdom.
Nor can such a character be assigned to the communiqué published by the
Government of Cameroon on 31 December 1960 or the note verbale of 4 January
1961 by which this communiqué was transmitted to the British Embassy in
Yaoundé. As stated by the note verbale, the communiqué set aut "the official
views of the Republic of Cameroon and will enable the Administering
Authority fully to inform the people of the Territory under British
Administration before the plebiscite next February". The communiqué itself
[p 136] was addressed not to the Administering Authority but to the "brother
people of the Northern Cameroons under British administration" and proposed
to it that it "vote unanimously for the reunification with the Republic of
Cameroon". The communiqué was transmitted to the Administering Authority for
the sole purpose of enabling it to inform the people of the Territory under
British administration. This being so, it is clear that the criticisms
contained in the preamble of the communiqué, in respect of the conduct of
the Administering Authority, cannot be regarded as a formal protest
addressed by Cameroon to the United Kingdom.
We thus come to the note of I May 1961 from the Cameroon Minister for
Foreign Affairs to the Foreign Office. This note refers to a dispute, as an
already existing dispute between Cameroon and the United Kingdom, and
proposes its judicial settlement. It is beyond doubt that the assertion by
one of the parties of the existence of a dispute does not prove that such a
dispute really exists, because the existence of a dispute requires to be
established objectively. In the present case the assertion in Cameroon's
note that there was a dispute between Cameroon and the United Kingdom does
not in my opinion correspond to the real situation as it existed on I May
1961, the date of the note.
It seems to me, however, that the note, though referring to a dispute
asserted to be already in existence and in fact still nonexistent, does
express, very clearly although indirectly, the point of view of Cameroon
with regard to the conduct of the United Kingdom in the performance of its
trusteeship for the Northern Cameroons. Cameroon complains of various
courses of conduct on the part of the United Kingdom which are the same as
those which were later to be the subject of the Application to the Court. It
has already been seen that these courses of conduct, as acts or at least
omissions, are all subsequent to I January 1960, the date of the emergence
of Cameroon as an independent State. They are thus courses of conduct which
could be detrimental to an interest which might be regarded by Cameroon as
its own interest. It appears from the note of 1 May 1961 that Cameroon
considered that such detriment had really occurred. This is tantamount to
saying that the note contains a protest which could, in combination with the
contrary attitude of the United Kingdom against which the protest is
directed, give rise to a dispute. I am consequently of the opinion that a
dispute has existed between Cameroon and the United Kingdom since 1 May
1961.
Since this is a dispute arising not from a claim followed by a denial but
rather from a course of conduct followed by a protest against that conduct,
the United Kingdom's reply of 26 May 1961 to Cameroon's note is not relevant
as a constituent element of the [p 137]dispute; it is therefore of no
importance with a view to determining the date of origin of the dispute.
7. The General Assembly's resolution of 26 April 1961 cannot be recognized
as having any influence with regard to the existence or non-existence of the
dispute. The United Kingdom relies on this resolution and states that by
settling the question it had the effect either of putting an end to an
already existing dispute or of preventing a dispute arising.
I am of opinion that the General Assembly's resolution as such did not and
could not settle any dispute between States such as Cameroon on the one hand
and the United Kingdom on the other, even if this dispute could be regarded
as already in existence at that time which, in my view, must be denied.
Apart from this, it must be observed that the settlement of a dispute as a
legal operation produces legal effects for the parties which must no doubt
be taken into account by any court subsequently seised of a request for the
resolution of the same dispute. But the settlement of a dispute has not in
itself any direct influence on the existence of the dispute as a factual
situation in which two States may find themselves. In this connection the
relevant concept is something other than the legal settlement or resolution
of a dispute; it is the very different concept of extinction or de facto
cessation of the dispute. A dispute may continue in fact despite its legal
resolution; a dispute whose de facto cessation has occurred pursuant to its
legal resolution or even independently of any legal resolution may recur as
a matter of fact.
All this shows that whatever the legal effects of the General Assembly
resolution of 21 April 1961 it could not directly bring about the extinction
in fact of any dispute which might at that time have existed between
Cameroon and the United Kingdom. A fortiori, the resolution could not
prevent a dispute arising subsequently between the States concerned. For the
claim to be admissible it is sufficient to find that there was in fact a
dispute between Cameroon and the United Kingdom at the time when proceedings
were instituted before the Court.
8. It is on the basis of a certain conception of an international dispute
that I have reached the conclusion that there really was a dispute between
Cameroon and the United Kingdom at the date of filing of the Application. In
order to deny the existence of such a dispute it would be necessary to start
from a conception of an international dispute narrower than that which I
consider correct, and which I have already set out (see above, para. 4). It
would be necessary to consider that a dispute could have as its subject only
a future course of conduct by one of the parties and that consequently, as
far as the other party is concerned, the dispute could result solely from a
claim and not from a protest. [p 138]
Once this narrow conception of a dispute had been adopted, it would be
sufficient to find that in the present case Cameroon has never put forward
any claim relating to a course of conduct to be adopted by the United
Kingdom in the future, and that, in particular, Cameroon has never claimed
any reparation. It would of course not be sufficient to find that no
reparation has been asked for in the Application. As a suit may have as its
subject not a. dispute as a whole but solely a question the resolution of
which is necessary for the settlement of the dispute, the fact that in an
application only a finding of the violation is asked for does not exclude
the existence of a dispute as regards reparation. However, in the present
case, there is no dispute at all with reparation as its subject, since even
before the Application Cameroon never sought any reparation whatever.
9. I should like now to emphasize the decisive importance, for the purpose
of declaring a claim admissible or on the contrary inadmissible, which must
be attached to the way in which an international dispute is conceived of.
If the wider, and in my view more correct concept of dispute is adopted, and
if it is admitted that a dispute may indeed have as its subject the past
conduct of one of the parties, there is no doubt that a dispute of this
nature, as a really existing dispute, can be settled by judicial means and
that consequently a claim for such settlement must be declared admissible.
There would be no point in raising the question of the usefulness of the
decision and hence of the party's interest in asking for it. The answer to
such a question would be very easy: since a dispute is regarded as existing,
the usefulness of the decision resides precisely in the very settlement of
the dispute. Such a decision has undoubted legal effects; it produces
precisely the specific legal effects of res judicata which consist of
placing an obligation on the parties to regard the dispute as having been
settled in a particular way. These effects are produced for the future.
Although the conduct by one of the parties which is the subject of the
decision is past conduct, the legal effect of the decision, that is to Say
the obligation deriving from it for the parties, concerns their future
conduct.
The effects of the decision may become apparent even in relation to a
dispute other than that which was the subject of the decision in question;
for example, in relation to a dispute which might subsequently arise in
respect of the obligation to make reparation in connection with the conduct
declared unlawful (or lawful) in the decision. It thus appears that the
decision can indeed have an effective application. Thus the decision
requested by Cameroon in the present case would be capable of being applied
(in the sense I [p 139]have described) either by the Court itself or by any
other tribunal subsequently seised of a claim for reparation.
10. The foregoing depends on starting from the broader and more correct
concept of dispute. If on the contrary, on the basis of a narrower concept
of dispute, the possibility of a dispute having as its subject solely the
past conduct of one of the parties is excluded, there would be no other
course than to draw all the logical conclusions from such a conception. In
every case in which only the past conduct of one of the parties is in issue
it would be necessary to exclude the possibility of judgment on the merits.
Such a judgment would in fact be without object, since there would be no
dispute at all in existence.
This is the only logical conclusion which could be reached. It would be
illogical on the contrary to seek to make distinctions by circumscribing in
some way the scope of the conclusion which has just been set out. In
particular it is not possible to make a distinction (as has been attempted)
between a course of conduct which cannot recur (such as the conduct in which
the United Kingdom is claimed to be at fault in the present case, since the
trusteeship has been terminated) and conduct which, although past, could
recur in the future, the purpose of such a distinction being to admit in the
second case the usefulness of a decision and hence the possibility of giving
it. From this is derived, for example, the possibility of a judgment finding
a breach of sovereignty, by virtue of the usefulness which such a judgment
could have in the case of a further breach occurring.
This would however be usefulness of a quite illusory sort, having regard to
the objective limitations on res judicata arising from Article 59 of the
Court's Statute, according to which the decision has no binding force except
"in respect of that particular case" in which the decision is given. The
judgment concerning a past course of conduct would not have the force of yes
judicata in respect of future courses of conduct, which would necessarily be
different from the course of conduct forming the subject of the decision
although more or less similar to it. In connection with future courses of
conduct the decision would be of value only in respect of the reasons given
for it: its value would hence be analogous to that attaching to an advisory
opinion. Moreover, it would not logically be possible to speak of res
judicata in connection with the past course of conduct either, because, in
this connection, the judgment would be without object.
This then would be a most strange decision: one which though devoid of
object as a judicial decision would have been delivered because of an
alleged usefulness which it might have not as a judicial decision but solely
because of the reasons on the basis on which it was given. It would be
something having only the mere [p 140] appearance of a judgment; something
which in substance would be no more than an advisory opinion.
II. The foregoing must lead to the rejection of its starting point, namely
the narrow concept of dispute.
In reality there is no reason to make a distinction between past and future
courses of conduct as the possible subject of a dispute. There is a dispute
not only in the case of a claim, where one of the parties demands that its
interest should be achieved, possibly through a certain course of conduct by
the other party, but also in the case of a protest, where one of the parties
asserts that its interest should have been achieved through a course of
conduct by the other party contrary to that in fact adopted. There is no
substantive difference between the claim and the protest. A protest is
really only a claim with relation to the past.
It is only in this way that it is possible to explain the various judgments
which have been given solely on a past course of conduct by one of the
parties, such as Judgments Nos. 7 and 49 by the Permanent Court in the
Polish Upper Silesia and Memel Territory cases, and the Judgment by the
International Court of Justice in the Corfu Channel case in 1949.
In the first of these Judgments the Permanent Court quite simply declared
that certain measures by the Polish authorities were contrary to the
provisions of a convention (P.C.I.J., Series A, No. 7, pp. 81-82). Similarly
in certain of the operative provisions of the Judgment relating to the Memel
Territory, the Court found that certain acts of the Government of Lithuania
were in conformity with the Statute of the Memel Territory and that others
were not (P.C.I.J., Series A/B, No. 49, pp. 337-338). Finally, in the
Judgment in the Corfu Channel case, the International Court of Justice gave
judgment that by certain acts of the British Navy the United Kingdom did not
violate the sovereignty of Albania, whereas by certain other acts the United
Kingdom did violate the sovereignty of Albania, "and that this declaration
by the Court constitutes in itself appropriate satisfaction" (I.C.J. Reports
1949, p. 36).
There is no doubt that the Judgments cited above all have the force of res
judicata in respect, of course, of the point forming the subject of the
decision, namely the lawful or unlawful character of a certain course of
(necessarily past) conduct. It is not possible to speak of res judicata in
connection with the interpretation of the rules of law on the basis of which
that conduct was appraised, this interpretation being only a reason on which
the decision was based. Nor is it possible in these Judgments to read into
them something which they do not at all contain, namely a prohibition on the
performance of similar acts in the future.[p 141]
In this connection the Polish Upper Silesia case is of very special
interest. Certain measures by the Polish authorities having been declared
unlawful in Judgment No. 7, Germany based itself on this declaration with
force of res judicata to submit a further Application to the Permanent Court
for reparation (for this Application see Judgment No. 8, Chorzów Factory
case). This is precisely the hypothesis to which I have already referred
(see above, para. 9), namely the hypothesis in which a decision on the
subject of a certain course of past conduct by one of the parties which has
been characterized as unlawful is used, as res judicata, with a view to the
settlement of another dispute the subject of which is a claim for
reparation.
The scope and effects of Judgment No. 7 were subsequently defined by the
Permanent Court itself in its Judgment No. II. After finding that the
conclusion reached in Judgment No. 7 as to the unlawful character of the
attitude of the Polish Government "has now indisputably acquired the force
of res judicatn" Judgment No. II declared:
"The Court's Judgment No. 7 is in the nature of a declaratory judgment, the
intention of which is to ensure recognition of a situation at law, once and
for all and with binding force as between the Parties; so that the legal
position thus established cannot again be called in question in so far as
the legal effects ensuing therefrom are concerned." (P.C.I.J., Series A, No.
13, p. 20.)
From this passage there very clearly emerges the idea that res judicata
produces its effects in the future even if it concerns, as in that case, the
characterization of a course of past conduct.
As regards the Corfu Channel case, something should be said of the
physiognomy of the dispute submitted to the Court. Albania had indeed asked
for reparation (in the form of satisfaction) and consequently from this
standpoint the dispute related to a future course of conduct by the United
Kingdom. The Court did not uphold this claim by Albania; but this did not
prevent the Court, in the operative part of its Judgment, declaring the
unlawful nature of the United Kingdom's conduct. Moreover the question
arises as to what would have happened if Albania had from the beginning
adopted in the matter of reparation an attitude corresponding to that which
was subsequently to be taken by the Court, and had refrained from asking for
any satisfaction other than that constituted by the declaration of the
violation itself. It would seem difficult to suppose that in such a case the
Court would have declined to do what it did do, namely declare the
violation, on the grounds that in the absence of any claim for reparation
there was no dispute to settle. [p 142]
II
I. Admitted that the claim is admissible, because there really is a dispute
between Cameroon and the United Kingdom, it is necessary to consider whether
such a dispute is subject to the Court's jurisdiction.
Cameroon founds the jurisdiction of the Court on Article 19 of the
Trusteeship Agreement for the Territory of the Cameroons under British
Administration approved by the General Assembly of the United Nations on 13
December 1946.
This Agreement was concluded between the United Kingdom on the one hand and
the United Nations, acting through the General Assembly, on the other. If
this Agreement derived its value solely from general international law, it
would have effects only for the parties to it, for the United Kingdom on the
one hand and for the United Nations on the other. The Organization might be
regarded either as a legal entity separate from the States Members, or as a
group of States possessing subjective rights and legal powers exercisable
only collectively through particular organs, namely the organs of the United
Nations. Whichever of these two theoretical constructions is followed, the
practical consequences are unchanged.
If the effects of the Trusteeship Agreement were confined to the two parties
to the Agreement this would in the first place make it necessary to construe
all the material rules laid down in the Agreement (even the rule in Article
9 concerning equality of treatment and the rule in Article 13 concerning
missionaries) as rules creating obligations for the United Kingdom in
respect of the Organization and not in respect of the States Members
considered individually. Secondly, it would not be possible to construe
Article 19 as a true jurisdictional clause, since the Court's jurisdiction
can be based only on a rule which is valid for both parties to the dispute.
Article 19 could be construed only as a compromissory clause with special
features: that is to Say a clause binding the United Kingdom vis-à-vis the
United Nations to conclude with and at the request of a State Member a
special agreement for the submission of a particular dispute to the Court.
However, the consequences I have just indicated must be set aside because
the trusteeship agreements are covered not only by general international law
but also by a rule of particular law implicitly deriving from the Charter.
It is by virtue of that rule that the trusteeship agreements can produce
their effects not only for the parties to the agreement, namely the
Organization and the administering authority, but also for all the States
Members of the United Nations considered individually.[p 143]
So far as Article 19 of the Trusteeship Agreement for the Territory of the
Cameroons under British Administration is concerned in particular, it
follows that that Article constitutes a true jurisdictional clause itself
conferring jurisdiction on the Court to deal with the disputes contemplated
therein and at the same time conferring a corresponding right of action on
all the States Members of the United Nations in respect of the United
Kingdom.
It is not necessary to state precisely to which of the sources of
jurisdiction provided for in Article 36 (1) of the Statute Article 19 of the
Trusteeship Agreement must be related: whether in particular it is the
reference to the Charter or the reference to treaties and conventions in
force which is operative in the present case. It is sufficient to observe
that it is possible to apply a very liberal construction to the provision
of Article 36 (1) of the Statute: this is because of the purely negative
role of such a provision, which does not regulate the subject-matter of the
Court's jurisdiction and leaves this task to other rules outside the
Statute. These rules may be established in any manner whatever provided that
they are established in a way capable of giving them effect in respect of
all the parties to the dispute submitted to the Court.
2. This having been said, it becomes necessary to consider whether the
dispute which Cameroon asks the Court to decide is included or not in the
category of disputes covered by Article 19 of the Trusteeship Agreement. It
must in particular be considered whether this dispute may be regarded as a
dispute relating "to the interpretation or application of the provisions" of
the Agreement within the meaning of Article 19.
Since Article 19 refers to the material provisions of the Agreement it is
necessary in order to establish the scope of the jurisdictional clause in
that Article to examine the whole of the material provisions of the
Agreement.
All these provisions create obligations for the United Kingdom. They must
however be classified in two separate categories according to the
orientation of the obligations which they impose, that is to say according
to the subjects on which the corresponding rights are conferred.
3. Among the substantive provisions of the Trusteeship Agreement there are
some (such as the provision in Article 9 concerning equality of treatment
and that in Article 13 concerning missionaries)which relate to the
individual interests of the various States Members of the United Nations.
The provisions in question protect these individual interests by imposing on
the United Kingdom obligations vis-à-vis each of the States Members of the
United Nations separately. This amounts to saying that these provisions
confer on the States Members subjective rights which may be characterized as
individual, not only in the sense that these rights may be individually
exercised but also in the sense that, on the [p 144] basis of these
provisions, each State Member is entitled to require from the United Kingdom
the conduct provided for solely in respect of its own nationals and not in
respect of the nationals of other States Members. It follows that apart from
the exceptional case of double nationality there is no possibility of two
States, relying on the same legal rule but giving different interpretations
to that rule, requiring of the United Kingdom in respect of the same
individual two contrasting courses of conduct.
As regards these provisions not only is there no subjective right vested in
States other than the State of which the individual is a national, but there
is no subjective right vested in the United Nations in this respect. It may
well be recognized that, in the exercise of its supervisory power in
connection with the Trusteeship, it is possible for the Organization to
concern itself even with the way in which the Administering Authority
discharges or does not discharge the obligations flowing from the provisions
under consideration. But it must be denied that these provisions confer a
true subjective right on the Organization which it could exercise even
against the attitude adopted in this respect by the State of which the
individual is a national. The subjective right is vested in that State alone
and it may freely dispose of it.
4 Alongside the provisions which have been considered up to now there are
other substantive provisions in the Trusteeship Agreement which are
doubtless the most important ones and relate to the administration of the
territory and the treatment of its inhabitants. This second category of
substantive provisions contemplates interests which are not individual
interests of the various States Members of the United Nations but rather
collective interests, that is to Say interests common to all the States
Members.
In general the rules of international law may protect the collective
interests of States by different means. Firstly, these rules may confer
subjective rights on all the States concerned so that each of them is
individually entitled to demand the conduct provided for. As in this
eventuality the subjective rights conferred on the various States all
contemplate a single course of conduct and not separate courses of conduct
(as in the case of the treatment to be accorded to the nationals of
different States) there is the possibility of conflicting claims on the part
of two or more States relying on the same legal rule but giving different
interpretations to that rule.
This eventuality cannot occur when the subjective right is conferred not on
several States individually but on a single entity: in particular, on an
international organization such as the United Nations. It is evident that if
it is desired to deny the Organization legal personality it would be
necessary in that case to speak of [p 145] subjective rights conferred not
on the Organization as a single entity but rather on the States Members,
considered, of course, as a group and not individually. If this latter
construction is accepted it is necessary to conceive of a subjective right
the exercise of which is organized in a certain way, to the effect that the
subjective right could be exercised by those in whom it is vested only
collectively, that is to Say through the corporate organs. In any case,
whichever construction may be preferred, it will be found that the State on
which the obligation is placed is always faced with the corporate organ; and
only the corporate organ may require the discharge of the obligation, acting
either on behalf of the Organization as a single entity or on behalf of the
States Members as a group. Thus there is no possibility of divergent claims
on the basis of the same legal rule.
It is in this way, in my view, that the provisions which constitute the very
essence of the trusteeship agreements must be construed: in particular the
provisions in the Trusteeship Agreement for the Territory of the Cameroons
under British Administration which relate to the administration of the
Territory and the treatment of its inhabitants.
These provisions create an obligation for the United Kingdom only vis-à-vis
the United Nations and it is solely on the United Nations that those
provisions confer subjective rights. That is to Say that discharge of the
obligations placed on the United Kingdom can be demanded only by the General
Assembly or by the Trusteeship Council acting either on behalf of the
Organization or on behalf of the States Members as a group. What has been
called the administrative supervision vested in these organs is no other
than the exercise of the subjective rights conferred either on the
Organization or on the States Members considered collectively. There is no
subjective right flowing from the provisions in question for each State
Member considered individually. The State Member cannot therefore rely on
these provisions to make claims against the Administering Authority, with
the possibility of these claims conflicting with the attitude adopted by the
General Assembly and by the Trusteeship Council. A State Member may not
individually seek to overthrow the decisions taken by those organs.
5.The observations which I have just made concerning the characteristics of
the substantive provisions of the Trusteeship Agreement are, I think,
necessary for a precise statement of the scope of the jurisdictional clause
in Article 19.
No doubt this clause contemplates disputes having the characteristic of
legal disputes, that is to Say disputes in which the claim or protest of one
of the parties is based on a legal ground, namely on the assertion by that
party that its claim or protest is in accordance with legal rules. More
particularly, since Article 19 refers to the substantive provisions of the
Agreement, it is necessary that [p 146] the party should assert that its
claim or protest is in accordance with a substantive provision of the
Agreement.
It is however evident that it does not suffice for the party to rely on any
provision whatever of the Agreement; it is necessary that the party should
more specifically rely on a subjective right deriving for that party from a
provision of the Agreement. In other words, for a dispute to fall within the
category of disputes contemplated by Article 19 it is necessary either that
the party advancing a claim against the Administering Authority should
assert on the basis of a provision of the Agreement that it possesses a
subjective right to the course of conduct by the Administering Authority
which is the subject of the claim, or that the party making a protest should
assert that by the course of conduct which is the subject of that protest
the Administering Authority has injured a subjective right of that party
deriving from the Trusteeship Agreement.
This is but the application to the Trusteeship Agreement of a principle
which operates in respect of any jurisdictional clause in a treaty which
refers to disputes relating to the interpretation or application of the
provisions of that treaty. For a dispute to be regarded as covered by the
clause it is in fact necessary that the party should assert a subjective
right of its own deriving from the provisions of the treaty.
Take the hypothesis of a collective treaty the substantive provisions of
which are directed uniformly at all the parties but confer on the various
parties subjective rights which contemplate separate courses of conduct on
the part of the State on which the obligation is placed. Take for example an
obligation on each contracting State to treat the nationals of each of the
other contracting States in a certain way.
On this assumption it is quite certain that all the contracting States may
rely on the jurisdictional clause in respect of disputes relating to the
interpretation or application of any provision whatever of the treaty.
However, for a State to be able to rely on the clause in respect of a
particular dispute, it is necessary that it should assert, on the basis of
the provisions of the treaty, the existence of a subjective right of its
own. If the State in question claims a certain treatment for the nationals
of another contracting State, namely a course of conduct which it does not
assert to be the subject of a right of its own, the dispute falls outside
the clause, and this is true even if reference is made to a provision of the
treaty under which the course of conduct in question must be regarded as
obligatory.
6. As regards the Trusteeship Agreement for the Territory of the Cameroons
under British Administration we have seen that this Agreement contains
substantive provisions which undoubtedly confer on the States Members of the
United Nations taken individ-[p 147]ually subjective rights vis-à-vis the
United Kingdom. It is thus quite certain that a dispute in which a State
Member of the United Nations asserts a subjective right deriving for it from
one of those provisions (which is possible only in respect of the treatment
of the nationals of that State) is a dispute covered by the jurisdictional
clause of Article 19.
But there are other substantive provisions of the Agreement, those relating
to the administration of the Territory and the treatment of its inhabitants.
In my view these provisions confer no subjective right on the States Members
of the United Nations considered individually. As none of these States can
rely individually on a subjective right deriving from the provisions in
question, it is not in my view possible to contemplate a dispute between a
State Member and the Administering Authority which could be considered as
relating to those provisions of the Trusteeship Agreement.
I do not of course deny the possibility of a dispute between a particular
State (whether a Member of the United Nations or not) on the one hand, and
the Administering Authority on the other, and relating precisely to the
administration of the Trust Territory; on the contrary, I have already said
that this eventuality is just what has occurred in the present case. I
merely deny that such a dispute could be regarded as a dispute relating to
the interpretation or application of the Trusteeship Agreement, because in
such a dispute it is not possible to rely on a subjective right deriving
from the Trusteeship Agreement.
It follows that the reference in Article 19 to the substantive provisions of
the Agreement for the purpose of determining the categories of disputes
contemplated by Article 19 is a reference which is automatically confined to
certain provisions of the Agreement. This is because it is not possible to
conceive of there arising between a State Member considered individually and
the Administering Authority a dispute having the characteristic of a
dispute relating to the interpretation or application of other provisions of
the Agreement, namely provisions concerning the administration of the
Territory.
This confinement of the reference to certain provisions of the Agreement is
in no way contradicted by the very broad terms of Article 19. The wording is
"any dispute whatever ..." and not any provision whatever of the Agreement.
The dispute may be any dispute whatever, provided that it relates to the
interpretation or application of the provisions of the Agreement, and this,
for the reasons which I have given, is possible in connection with only part
of the provisions of the Agreement.
7. The wording of Article 19 does not contradict but confirms the argument
that a dispute concerning the administration of the Trust Territory,
although possible in fact, is not a dispute relating [p 148] to the
interpretation or application of the Trusteeship Agreement.
Article 19 in fact speaks of a dispute which "cannot be settled by
negotiation or other means". The other means contemplated by this formula
are evidently means, like negotiation, capable of settling disputes between
States: conciliation, enquiry, arbitration, etc. Proceedings in the General
Assembly, acting under Article 85 of the Charter, and in the Trusteeship
Council are not contemplated thereby, for the very simple reason that such
proceedings are not intended to settle disputes between States.
From this condition imposed by Article 19 on the jurisdiction of the Court
it clearly follows that the Article refers to disputes capable of being
settled by negotiation or other means and requires that such means should in
the particular case in point have been found ineffective. Now a dispute
concerning the administration of the Trust Territory is a dispute which is
not capable by its very nature of settlement by negotiation, because it
involves a subject-matter which it is not in the power of the parties to
dispose of.
In the present case it would have in fact to be denied that there had been
negotiations such as would have had to take place after 1 May 1961, the date
of the birth of the dispute. Rut there is really a still further point, and
that is that negotiations were not even possible.
It is clear that by the foregoing statement, namely that a dispute
concerning the administration of the Trust Territory such as the dispute
submitted by Cameroon to the Court is not a dispute which can be settled by
negotiation or other means, it is not at all intended to admit that the
requirement of Article 19 must be regarded as fulfilled. On the contrary,
what is meant is that this is a dispute in connection with which it is quite
impossible that such a condition should be fulfilled and that it is
therefore a dispute which is not covered by Article 19 at all.
8. The hypothesis of a dispute between a State Member and the Administering
Authority concerning the administration of the Territory is actually one
which is perfectly possible in fact, but one with which there was no reason
for the Trusteeship Agreement to be concerned. This is because the
subject-matter of the administration of the Territory is not governed in
the substantive provisions of the Agreement by legal relationships between
the Administering Authority on the one hand and the States Members
considered individually on the other.
Did the Trusteeship Agreement, without, in respect of the administration of
the Territory, creating subjective rights for the States Members considered
individually, none the less intend to confer on those States a right of
action before the Court in this [p 149] field? An affirmative answer to this
question would signify that a right of action is conceived of as conferred
on States for the protection of subjective rights vested not in those States
but in the United Nations. It would be a sort of actio popularis. But the
actio popularis is of a quite exceptional nature even in municipal law. In
international law such an action is not inconceivable theoretically, but it
is difficult to consider it as having been introduced or as capable of
being introduced into positive law.
Moreover, it is not apparent why Article 19, while conferring on States a
right of action in respect of substantive rights not vested in them, should
have made the exercise of such an action dependent on the existence of a
dispute to which the State desiring to bring the matter before the Court
must be a party. The reference to a dispute and thereby to individual
interests of States clearly indicates of itself that the field in which
Article 19 is intended to operate is quite other.
9. Since the dispute submitted to the Court is not a dispute relating to the
interpretation or application of the provisions of the Trusteeship Agreement
within the meaning of Article 19 c\f the Agreement, I am of opinion that the
Court should for this reason have declared that it has no jurisdiction.
In order to reach such a decision the Court would doubtless have found it
necessary to interpret the substantive provisions of the Trusteeship
Agreement. The Court would first have had to establish that Cameroon
considered individually did not possess on the basis of those provisions any
subjective right vis-à-vis the United Kingdom in respect of the latter's
exercise of the trusteeship for the Northern Cameroons. But it is not the
declaration of the non-existence of a substantive subjective right possessed
by Cameroon which would have been the subject of the judgment which the
Court was called upon to give. A finding that there was no substantive right
possessed by Cameroon on the basis of the Trusteeship Agreement would only
have been the means whereby the Court could decide that it had no
jurisdiction.
This is one of those fairly frequent cases in which the question of
jurisdiction arises in close connection with the merits of the case. It is
moreover possible to note such a connection in all cases concerned with a
jurisdictional clause in a treaty covering disputes relating to the
interpretation or application of the substantive provisions of that treaty.
In such cases it is necessary, in order to decide on the question of
jurisdiction, to interpret those substantive provisions and establish the
rights and obligations which they confer on the parties.
(Signed) Gaetano Morelli.
[p 150] DISSENTING OPINION OF JUDGE BADAWI
[Translation]
Without directing its consideration to questions concerning its
jurisdiction, the Court bases its Judgment on the limitations that are
imposed by its judicial function which requires that any legal action must
have a definite purpose or object, in a word, that it must have some real
substance, and this is lacking in the present proceedings as a result of the
termination of the trusteeship and of the fact, which is admitted by the
Applicant itself, that it is impossible to remedy the alleged
irregularities in the administration of the trusteeship and in the conduct
of the plebiscite. In these circumstances, and having regard to the
Applicant's admission that it is impossible to reverse the termination of
the trusteeship which was pronounced by the General Assembly, the Judgment
of the Court would have no practical application.
The Applicant having emphasized that it is asking only for a declaratory
judgment, that is to Say a judgment not of an executory character, the
Court, whilst admitting the notion of declaratory judgments, considers
that, even for that category of judgments, every judgment must have
continuing applicability either because it expounds a rule of customary law
or because it interprets a treaty which remains in force. But when what is
at issue is the interpretation or the application of a treaty which is no
longer in force, as is the case with the Trusteeship Agreement, there can be
no possibility of any such application. The Court cites the Judgments in the
Chorzów Factory case and the Haya de la Torre case in order to show that
there is no similarity between those cases and the present one.
The Court does not cite the Corfu Channel case. Possibly it has it in mind
when it refers to a declaratory judgment that "expounds a rule of customary
international law" but whilst "continuing applicability" can relate to the
rule of customary international law concerning sovereignty, it cannot relate
to the judgment itself which concerns past action and which is devoid of
applicability as being a judgment concerned with particular facts that are
over and done with.
In that case, the question submitted for the judgment of the Court was as
follows:
"Has the United Kingdom under international law violated the sovereignty of
the Albanian People's Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd October and on the 12th and 13th November 1946
and is there any duty to give satisfaction?"[p 151]
In its Judgment in this case, the Court found that—
"by reason of the acts of the British Navy ... the United Kingdom violated
the sovereignty of the People's Republic of Albania, and that this
declaration by the Court constitutes in itself appropriate satisfaction".
This was a declaratory judgment in the sense accepted in Europe and
recognized in international law both in arbitral proceedings and in
proceedings before an international tribunal and the case is almost
identical with the present one.
But to declare that the present case is inadmissible as a result of the
termination of the trusteeship, because it could not lead to any practical
application, is to assume that the essential feature of any legal action is
that it must have a practical application. This assumption is undeniable
where a judgment is sought for the purposes of execution. but it is more
than questionable in the case bf declaratory judgments.
In point of fact, declaratory judgments have undergone a course of
development in the Anglo-saxon and American legal systems that is quite
different from that which they have undergone in most European countries and
in international law.
It was as the result of a procedural reform introduced in 1883 in the
English legal system that the notion of declaratory judgments was adopted.
This reform was to the effect that—
"No action or proceeding shall be open to objection, on the ground that a
merely declaratory judgment or order is sought thereby, and the Court may
make binding declarations of right whether any consequential relief is, or
could be claimed or not."
A similar reform was introduced in the United States by a Federal Statute of
1934 and was adopted by almost all State legislatures.
This system of declaratory judgments, which is preventive in character and
has somewhat special technical features, has been applied in a large variety
of legal situations and it is frequently resorted to in view of the
advantages it possesses over the ordinary procedure. The effective
applicability of declaratory judgments is an essential feature of this
system, so that when that character is lacking the case is considered to be
moot or inadmissible.
On the other hand, in continental and in international law, the application
of declaratory judgments is somewhat infrequent and is wholly different from
that in Anglo-saxon and American law. In any case, effective applicability
is by no means considered to be essential.
***[p 152]
The object of the present action is to obtain a simple declaration of facts
and legal findings concerning irregularities in the administration of the
Administering Authority throughout the period of trusteeship and
irregularities in respect of the conduct of the plebiscite. It does not seek
anything that could affect the plebiscite itself or the termination of the
trusteeship which was definitively pronounced by the General Assembly in its
resolution 1608 (XV). The essential thing for the Court, which is not called
upon to consider the fundamental motives for the Application or the use to
which the Applicant may put the judgment, is to satisfy itself that these
facts and findings do present a legal interest for the Applicant.
More than once, and to show that the judgment requested of it would lack
effective applicability, the Court mentions the fact that the Applicant does
not ask for any reparation. If therefore the Applicant had requested
reparation, even of a token nature, its action would have been admissible.
In point of fact, the Applicant has a twofold interest in this case, the
interest of a Member of the United Nations, which Article 19 of the
Trusteeship Agreement recognizes for the purposes of protecting the
interests of the people of the Trust Territory, and its own personal
interest in reuniting the Cameroonian people under a single flag. Would not
this twofold interest, without the legal device of a claim for reparation,
suffice to justify its action, which seeks only the establishment of exact
legal truth in regard to the administration of the trusteeship?
It is obvious that this twofold interest, or at all events the personal
interest, would have supplied a basis for legal action under Article 19 of
the Trusteeship Agreement, whether it embodied a request for reparation or
not.
***
In fact, the declaration of the ending of the trusteeship, which in 1961 was
an inevitable consequence of the plebiscite—unless the trusteeship mere to
be re-instituted under new conditions guaranteeing better administration for
a period difficult to determine which would have been unacceptable—does not
in any way deprive the present case of its legal interest for the Applicant.
It should be observed in this connection that a judicial examination and
appreciation constitute the only means of arriving at an objective
determination of the irregularities committed in the administration of the
trusteeship and in the conduct of the plebiscite which, as the conclusion of
the trusteeship, which by its nature is temporary, forms part of its
duration.
This objective determination, moreover, which is indispensable in order to
give effect to the legal interest which provides the basis for the present
case, finds its justification and its reason both in [p 153] the first
plebiscite which produced a majority contrary to that of the second
plebiscite, and also in the General Assembly's resolution 1473 (XIV) of 12
December 1959 by which the General Assembly recommended that the
Administering Authority should initiate without delay the separation of the
administration of the Northern Cameroons from that of Nigeria and that this
process should be completed by I October 1960, the date of the independence
of Nigeria and of the inevitable separation of the Northern Region of
Nigeria from the Northern Cameroons, and nine months after the date of the
resolution itself.
Furthermore, if this action had been instituted before the end of the
trusteeship and prosecuted during the currency of the trusteeship, it would
have made it possible to correct the irregularities and to terminate the
trusteeship properly and in a way not open to criticism. Having been brought
before the end of the trusteeship which was to terminate two days later,
this action was validly instituted and the Court was properly seised. Since
the legal interest has not ceased to exist, the Court cannot discontinue its
examination of it.
In fact, the legal interest has not ceased through the declaration of the
termination of the trusteeship for, by removing the uncertainty regarding
the irregularities of which the Administering Authority is accused, the
present action would enable the Applicant to clear itself of any charge of
defamation which might properly be directed against it, quite apart from
the fact that the General Assembly of the United Nations would be better
enlightened in regard to a question which the nature of the discussions
concerning the termination of the trusteeship did not allow it to
investigate thoroughly.
The causal relationship between the irregularities imputed to the
Administering Authority and the result of the plebiscite will, of course,
always remain a matter for speculation and conjecture, but the establishment
of the truth in regard to the irregularities could not fail to be of great
legal interest both for the Applicant and for the General Assembly.
***
For the reasons given above, I have reached the conclusion not only that the
Court possesses jurisdiction by virtue of Article 19 of the Trusteeship
Agreement, but also that the action is perfectly admissible.
(Signed) A. Badawi.
[p 154] DISSENTING OPINION OF JUDGE BUSTAMANTE
[Translation]
As I am unable to concur in the decision reached by the Court in its
Judgment in the present case, I must set out the reasons for my dissenting
opinion and also the conclusions at which I have arrived, but I must first
Say that I do so with the greatest deference towards the opinion of the
majority of the Members of the Court.
***
1. In its Application dated 30 May 1961, further developed in the Memorial
dated 12 December, the Federal Republic of Cameroon asked the Court to
state the law, as against the United Kingdom of Great Britain and Northern
Ireland, with regard to a dispute the terms of which may be summarized as
follows. The question at issue is whether, in the application of the
Trusteeship Agreement for the Northern Cameroons concluded with the United
Nations on 13 December 1946, the United Kingdom, as the Administering
Authority, failed to respect various obligations arising from the said
Agreement or from the express instructions of the General Assembly, the
consequence of the failure to do so having in fact been that an abnormal and
distorted character was given to the plebiscite held on 11 and 12 February
1961 which resulted in a majority decision in favour of the incorporation of
the Northern Cameroons in the State of Nigeria.
In its Counter-Memorial dated 14 August 1962, the United Kingdom, without
omitting—in so far as the merits are concerned— to rebut the complaints
raised by the Applicant Party, put forward several preliminary objections
most of which relate to the jurisdiction of the Court whilst some of them
are concerned with certain aspects of the inadmissibility of the claim. It
is for the Court to decide, in its Judgment, whether these objections are
well founded.
2. The question of jurisdiction must be settled—and the Parties are in
agreement on this point—in the light of Article 19 of the Trusteeship
Agreement for the Territory of the Cameroons under United Kingdom
administration. The jurisdiction of the Court is said to be founded on the
terms of a treaty or convention "in force", as provided for in the
concluding portion of paragraph I of Article 36 of the Statute of the Court.
According to that paragraph, the essential condition for establishing the
jurisdiction of the Court is that the treaty in question should have been in
force at the time when the dispute arose. The two Parties have recognized
that the Trusteeship Agreement [p 155] was still in force on 30 May 1961,
the date of the Republic of Cameroon's Application. Two days later (on I
June 1961) the Trusteeship Agreement terminated, in accordance with
resolution 1608 (XV) of the General Assembly of the United Nations, dated 21
April of the same year.
It could be asserted that if it is the final aim of judicial action to clear
up for the future any doubts to which the text of a treaty may give rise, or
to prevent in the future the repetition of errors of application already
committed in the past, neither of these aims could be achieved if the action
were instituted on the eve of the expiration of the treaty. But it must be
borne in mind that the aim of legal action in such a case is not always
directed towards the future, for the action may also have a retrospective
aim in seeking to obtain a judicial finding as to the conformity or
nonconformity with the law of an interpretation of a contract which has
already been given or of the application of a treaty provision which it is
considered was wrongly carried out in practice. In such a case, it seems to
me that an Application is always admissible if the problem raised by it is
concerned with the period when the treaty was in force. Human deeds or acts
involving third parties, irrespective of who commits them—whether a man or a
State—give rise to responsibilities, which may in certain cases be
determined— in the absence of other means—of settlement by courts of
justice. And all this independently of the value of such precedents as the
judicial decision may in certain circumstances serve to establish for the
purposes of the future application of the law or agreement in question.
3. Article 19 of the Trusteeship Agreement of 13 December 1946 reads as
follows:
"If any dispute whatever should arise between the Administering Authority
and another Member of the United Nations relating to the interpretation or
application of the provisions of this Agreement, such dispute, if it cannot
be settled by negotiation or other means, shall be submitted to the
International Court of Justice provided for in Chapter XIV of the United
Nations Charter."
The conditions in which, according to the text cited above, the Court has
jurisdiction, may be summed up as follows:
A. As to the juridical persons mentioned in the Agreement, the following are
considered as being entitled to appear before the Court:
(a) the Administering Authority;
(b) any other Member of the United Nations.
The nature and scope of the intervention of such Member States in
proceedings before the Court, whether as parties to the Agreement or as
third parties concerned, is a subject of controversy and interpretation,
which will be considered later. [p 156]
B. As to the subject-matter of the litigation:
(a) there must be a dispute—any dispute whatever;
(b) this dispute must relate to a question of the interpretation or
application of the provisions of the Trusteeship Agreement ;
(c) the dispute must be incapable of settlement by negotiation or other
means.
I now turn—with regard to the jurisdiction of the Court—to a study of these
two important aspects of Article 19 of the Agreement in relation to the
particular case raised in the Application and taking into consideration,
too, the objections of the respondent Party.
5. The first question that arises in regard to the juridical persons
mentioned in Article 19, relates to the nature and scope of intervention in
Court proceedings by "another Member of the United Nations", as referred to
in that Article. In the United Kingdom view, these States are not parties to
the Trusteeship Agreements but merely third States who are called upon to
watch over certain rights of their nationals (Articles 9, 10, 11 and 13 of
the Agreement). Consequently, any "other Member" considered individually
would not have the right to enter into a judicial dispute with the
Administering Authority concerning the interpretation or application of the
general provisions (Articles 3 to 8, 12, 14 to 16) of a trusteeship
agreement to which it is not a party. Such a claim would be inadmissible
because supervision in regard to the general provisions of the Agreement
belongs exclusively to the United Nations. The jurisdiction of the Court
therefore does not embrace actions of this kind by Member States. In this
connection, the United Kingdom noted that, in the case of the Cameroons, it
was not a question of the existence of a Mandate agreement under the former
system of the League of Nations, but of a trusteeship agreement entered into
with the United Nations, these two insti-tutions being governed by norms
that are different although inspired by a common object. Thus it follows
therefrom that the rights of Member States as provided for in a trusteeship
agreement must not be equated with the rights provided for in a Mandate
agreement. The latter are more restricted, adds the United Kingdom, and this
was admitted in the Judgment delivered by the Court on 21 December 1962 in
the South West Africa cases (I.C.J. Reports 1962, p. 319). According to that
Judgment, the judicial protection provided in favour of the populations
under the Mandate System did not become necessary in the new Trusteeship
System, the reason for this being that, having regard to the structure of
the Charter of the United Nations, that Organization undertook to safeguard
the rights of the inhabitants of the Trust Territory administratively and in
a more comprehensive manner than the Covenant of the League of Nations of
1919, from any possible errors or abuses on the part of the Trusteeship
authori-[p 157]ties, the clause providing for judicial protection having
thereafter no reason to subsist as an essential element of the trusteeship
agreements.
In the first place, this interpretation by the Respondent of the
significance of the Judgment of 21 December 1962 (case of Ethiopia and
Liberia 71. Union of South Africa) seems to me to be too peremptory and
consequently excessive. What the majority of the Court stated in the
Judgment in a very general way (I.C.J. Re-ports 1962, p. 342) was that after
the coming into force of the new Trusteeship System "the necessity for
judicial protection" (that is to Say, the necessity for inserting the
jurisdictional clause in the trusteeship agreements) "was dispensed with";
but this is very far from meaning that such protection thenceforward became
superfluous and could not be incorporated in the new trusteeship agreements.
On the contrary, the text of the Judgment shows in numerous passages that
the judges adhered to this form of judicial safeguard for the benefit of
peoples under Trusteeship. The insertion of Article 19 in the text of the
Trusteeship Agreement for the Northern Cameroons, which was done with the
assent of the United Kingdom, in itself alone shows that the interpretation
which I have just given is correct.
It is, however, necessary to make a more thorough study of this question and
I shall do so by taking into account not only the Judgment in the South West
Africa cases of 1962 but also my separate opinion which was appended
thereto (I.C.J. Reports 1962, p. 349) in which I considered certain aspects
that were not mentioned by the majority of the Members of the Court.
According to the Court (I.C.J. Reports 1962, p. 329)—
"The essential principles of the Mandates System consist chiefly in the
recognition of certain rights of the peoples of the underdeveloped
territories; the establishment of a regime of tutelage for each of such
peoples to be exercised by an advanced nation as a 'Mandatory' 'on behalf of
the League of Nations'; and the recognition of 'a sacred trust of
civilization' laid upon the League as an organized international community
and upon its Member States. This system is dedicated to the avowed object of
promoting the well-being and development of the peoples concerned and is
fortified by setting up safeguards for the protection of their rights."
In another paragraph of its Judgment, the Court says (I.C.J. Reports 1962,
p. 336):
"... judicial protection of the sacred trust in each Mandate was an
essential feature of the Mandates System. The essence of this system, as
conceived by its authors and embodied in Article 22 of the Covenant of the
League of Nations, consisted, as stated earlier, of two features: a Mandate
conferred upon a Power as 'a sacred trust of civilization' and the
'securities for the performance of this trust'... The administrative
supervision by the League constituted a normal security to ensure full
performance by the [p 158]mandatory of the 'sacred trust' toward the
inhabitants of the mandated territory, but the specially assigned role of
the Court was even more essential FN1, since it was to serve as the final
bulwark of protection by recourse to the Court against possible abuse or
breaches of the Mandate."
------------------------------------------------------------------------------------------------------
FN1 My italics.
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Speaking of the concept of the "sacred trust of civilization" recognized by
the Court, I held in my separate opinion in 1962:
(a) that:
"The populations under Mandate are in my view an essential element of the
system, because Article 22 of the Covenant recognized them as having various
rights, such as personal freedom (prohibition of slavery), freedom of
conscience and religion, equitable treatment by the Mandatory, and access to
education, economic development and political independence
(self-determination). They were thus recognized as having the capacity of
legal persons, and this is why in the Mandate agreements those populations
are, as I believe, parties possessed of a direct legal interest, although
their limited capacity requires that they should have a representative or
guardian." (I.C.J. Reports 1962, p. 354.)
(b) that:
"The function assigned by the Covenant [of 1922] to the League of Nations as
a clearly characterized 'tutelary authority' for such territories [under
Mandate], comes particularly clearly out of the test of paragraph 2 of
Article 22, according to which the Mandatory is required to exercise its
functions 'on behalf of the League'.
It seems to me that this point is of prime importance for the decision in
this case because, starting from the recognition of the direct legal
interest which the populations under tutelage possess in their mandate
regime and having regard to their capacity as legal persons—for whom the
League of Nations is the tutelary authority—many legal consequences flow
therefrom. In the first place, the populations under Mandate are in fact
parties to the Mandate agreements and represented by the League of Nations.
Secondly, the Mandatory's obligation to submit to the supervision of the
tutelary authority and account for the exercise of the Mandate is obvious.
Finally, from this concept it follows that all the Members of the
Organization are jointly and severally responsible for the fulfilment of the
'sacred trust' and for watching over the populations whose destiny has been
put under their aegis." (I.C.J. Reports 1962, p. 355.)
( c) that:
"The function of the Mandatory is a responsibility rather than a right
(Article 22, paragraph 2, of the Covenant). The less developed the
population under Mandate, the heavier the responsibility of [p 159] that
Mandatory, as in the case of C Mandates (Article 22, paragraph 6)... This is
one of the most characteristic features of the system: the Mandatory
signifies its acceptance not as a party with an interest in the prospects
flowing from the contract but as a collaborator of the international
community in its trust of civilizing a certain underdeveloped people."
(I.C.J. Reports 1962, p. 357.)
I must now add that the most adequate means of determining responsibilities
of a legal nature lies in the jurisdiction of the Court.
(d) that the jurisdictional clause inserted in the Mandate agreements—
"is but the implementation of Article 14 of the Covenant of the League of
Nations which established recourse to the Permanent Court as the final,
although voluntary, means of settling international disputes between
States... Again, this safeguard of recourse to judicial jurisdiction is
universally accepted for the settlement of all sorts of litigious situations
or situations subject to legal interpretation, so that its inclusion in a
Mandate agreement does not involve any anomaly.
…………………………………………………………………………………………..
In my view, the true significance of the clause providing for recourse to
the Court is that of a security for both parties as to the proper
application of the Mandate and the proper exercise of supervision." (I.C.J.
Reports 1962, pp. 360-361.)
(e) that:
"there is a further reason which obviously the Council of the League of
Nations took care to provide for in the compromissory clause. Under Articles
34 and 35 of the Statute of the Permanent Court, only States and the States
Members of the League could be parties in cases before the Court in
contentious proceedings. The League, which was not a State, could only
request 'advisory opinions' (Article 14 of the Covenant); thus should an
insoluble difference of view with the Mandatory arise, the intervention of
the States Members, the jointly responsible constituent elements of the
League, became indispensable as parties to the proceedings." (I.C.J. Reports
1962, p. 362.)
In short, I held in my separate opinion that the judicial protection
provided for in the jurisdictional clause of the Mandate agreements
fulfilled a function of public interest for the whole of the international
community and consequently authorized any Member State io require the
Mandatory to fulfil its obligations properly whether in relation to the
interpretation or in the matter of the application of those agreements.
It may be helpful to recall here the transition period between the
liquidation of the League of Nations and the constitution of the United
Nations, and also the replacement of the former Mandate System by the
institution of trusteeship, in order to determine as far as possible
whether the right of Member States to take [p 160] action under the
jurisdictional clause of the trusteeship agreements suffered any
restrictions or whether the clause itself should be definitively excluded.
The Assembly of the League of Nations, and also the First Committee, met,
around April 1946, in order to settle the position of the Mandates during
this transitional period, and all the Mandatory Powers solemnly stated
their intention of continuing to administer without change the territories
which had been entrusted to them. Together with other States, the United
Kingdom—which had been exercising a Mandate over the Cameroons since 1922—
then expressed such an intention, stating that it would act "in accordance
with the general principles of the existing Mandates". The French delegate
stated that—
"all the territories under the Mandate of his Government would continue to
be administered in the spirit of the Covenant and of the Charter ... in
pursuance of the execution of the mission entrusted to it by the League of
Nations".
The representative of Australia stated that his country considered that the
dissolution of the League of Nations did not weaken the obligations of
countries administering mandates. The delegate of New Zealand stated that
its administration would continue "in accordance with the terms of the
Mandate". On all sides, the concept of the "sacred trust" was accepted in
the declarations of the Mandatory Powers, without any discrimination being
made between the Covenant and the Charter. All these declarations were
received and approved by the Assembly of the League of Nations at its
meeting on 18 April 1946 (I.C.J. Reports 1962, pp. 339-341). It can
accordingly be asserted that, despite the dissolution of the League of
Nations, there was unanimous agreement among the Mandatory Powers that the
Mandates were to continue to be exercised in accordance with the rules of
the Mandate agreements, until the Trusteeship System had been finally
established.
That system was established on the day when the Charter of the United
Nations entered into force. Like Article 22 of the Covenant of the League of
Nations, Article 73 of the Charter mentions the "sacred" character of the
obligation of Administering States to promote the well-being of the
inhabitants of the non-autonomous territories the paramount character of
whose interests is explicitly recognized. Articles 75, 76 and 83, paragraphs
2 and 3, are identical with Article 22 of the Covenant in regard to the aims
and the object of the new system of trusteeship which are the same as the
aims of the United Nations, the new regime continuing to be, like that of
the Mandates, an institution in which all States of the world Organization
are concerned, that is to Say an institution of international public
interest. Article 77 stipulates in imperative terms that the territories
then held under Mandate were to be placed under the Trusteeship System.
Finally, Chapter XIII of the [p 161] Charter is concerned with supervision
over the actions of the Administering Authority, thus reaffirming in the
clearest possible way the principle of that Authority's responsibility in
regard to the fulfilment of its mission of trusteeship.
In the light of these basic considerations, the fact at the time when the
Charter entered into force, that, the United Kingdom consented to the
insertion in the text of the Trusteeship Agreement for the Northern
Cameroons (13 December 1946) of Article 19 concerning judicial protection
can only be interpreted as a confirmation of its previous policy, which was
in favour of considering the new trusteeship as a continuation of the former
Mandate and maintaining in the new text the judicial protection clause which
appeared in the previous Mandate agreement. Seeing that the General Assembly
of the United Nations also signed and approved the said Trusteeship
Agreement, no doubt remains as to the fact that the principal organ of the
United Nations considered the insertion of Article 19 in the new contractual
text as lawful and expedient. Consequently, on the basis that the judicial
protection clause does in fact exist by mutual accord in a trusteeship
agreement, the validity of which nobody has denied, the only conclusion to
be arrived at is that the applicability of the clause must be admitted.
In this connection, attention must be drawn to a detail, which is of
decisive importance, namely that, in the Trusteeship Agreement for the
Northern Cameroons which replaced the Mandate Agreement, the terms of the
jurisdictional clause are practically the same as in the former Mandate
agreements, without the wording imposing any restriction in regard to the
judicial action open to "other Member States" in respect of the
interpretation or application of the Agreements, which allows it to be
inferred that neither the United Nations nor the United Kingdom intended to
diminish the scope conferred upon judicial action in the Mandate agreements
by the literal and natural meaning of the text.
I wonder whether, taking this background into consideration, it can
reasonably be thought or presumed that the mission entrusted to Member
States by the Covenant under the Mandates System could have been curtailed
at the moment when the trusteeship came into being. This would mean a
retrogression in the tendency of international organizations, always
favourable to the protection of unliberated peoples and always directed
towards the safeguarding of their rights.
I am prepared to admit that in the articles of the Trusteeship Agreement
there can be distinguished two categories of obligations imposed on the
Administering Authority: some, which are called individual, concern
relations with other Member States or their nationals (Articles 9, 10, 11
and 13) while others are concerned with the tutelary Power's general
obligations with regard to the administration of the trust territory (for
example, Articles 4, 5, 6, 8, [p 162]12 and 14 to 16). But even admitting
this distinction, I am unable to concur with the assertion that the
competence conferred by Article 19 upon the Court to decide questions of
the interpretation or application of the Agreement relates only to questions
concerning individual obligations and not to questions concerning the other
obligations connected with the general administration of the Territory,
supervision in respect of which comes under the allegedly exclusive control
of the United Nations. This restrictive interpretation of the jurisdiction
of the Court is not, in my opinion, justified. On the contrary, it runs
counter to the literal meaning of Article 19. If the Agreement had been
intended to be so limited, the sentence in question would not have been
worded as it was: "... relating to the interpretation or application of the
provisions of this [Trusteeship] Agreement...", but would have read: "...
relating to the interpretation or application of Articles 9, 10, 11 and 13
of this Agreement...". There can be no doubt that, according to the text of
Article 19, as it is worded, the interpretation and application of all the
provisions of the Agreement—and not only some of them— are matters capable
of being judged by the Court. This amounts to saying that each Member State
was given the right to participate, by means of judicial proceedings, in the
task of supervising all the obligations of the tutelary authority relating
to the general administration of the trusteeship.
From all that I have just said and after deep reflection, it seems to me
that it is far from being clear that the scope of the jurisdictional clause
of the new trusteeship agreements must be regarded as less comprehensive
than that of the clause in the former Mandate agreements. There are good
reasons for holding that this clause (of which Article 19 of the Trusteeship
Agreement for the Northern Cameroons is an example) gives to the Member
States of the United Nations—as is the meaning of its literal text—the right
to bring before the Court legal questions concerning the correctness or
incorrectness of the interpretation or application which the Administering
Authority has given to the general obligations which flow from the
Trusteeship Agreement whether in regard to the 3'iember State in question or
in regard to its nationals or to the peoples of the trust territory. In my
opinion, the only problem raised by this particular case is the question
whether the Territory of the Northern Cameroons was still, at the date c f
the Application (30 May 1961), a "trust territory" so far as concerned the
implementation of its judicial protection and the safeguarding of the
individual interest of the Federal Republic of Cameroon or its nationals.
The reply must be affirmative seeing that the United Kingdom Trusteeship in
respect of this territory was not to terminate until two days later, that is
to Say, on 1 June 1961. There is, however, above all one other major reason
in favour of this affirmative reply, namely the fact that after I June the
Northern Cameroons did not cease to be a non-independent country, for it was
incorporated as [p 163] a province in the State of Nigeria pursuant to the
results of the plebiscite of February 1961. As the Application of 30 May
1961 indicated that, so far as the Territory of the Northern Cameroons vas
concerned, those results were due to the unfavourable influence of certain
measures and attitudes of the Administering Authority, it seems obvious that
at the very centre of the dispute submitted by the Federal Republic there is
a question concerning the exercise of the Trusteeship and, consequently, it
is covered by the provisions of the Trusteeship Agreement of 13 December
1946.
5.. But this is not the only aspect to be considered in the present case.
There is another fact, namely the very special position of the Federal
Republic of Cameroon, the direct interest of which in the fate of the
peoples of the Territory of the Northern Cameroons springs from points of
view both geographical (factor of contiguity) and historical (factor of
common origin of the two Cameroons (British and French) in the former German
Kamerun). (See the White Book of the Republic of Cameroon and the maps
submitted as annexes to the Counter-Memorial of the United Kingdom.)
All that need be done is to place Articles 9, 10, 11 and 13 alongside
Article 19 of the Trusteeship Agreement in order to see that Member States
can have access to the Court in a twofold capacity: on behalf of their
nationals and also on their own behalf, in their own interest as States,
when they receive from the Administering Authority, in the application of
the trusteeship, unequal treatment in certain matters (social, economic,
industrial or commercial) or suffer from some discrimination based on
nationality. Thus the first paragraph of Article 9 says:
"... for all Members of the United Nations and FN1 their nationals".
-------------------------------------------------------------------------------------------------------FN1
My italics.
-------------------------------------------------------------------------------------------------------
Paragraph (c) of Article 10 reads:
"... against Members of the United Nations or FN1 their nationals".
Article II reads:
"... any Member of the United Nations to claim for itself or FN1 for its
nationals".
In the present case the Federal Republic of Cameroon could not be
indifferent to the results of the plebiscite in the Northern Cameroons,
whether the people pronounced themselves in favour of Nigeria or for
incorporation in the Republic of Cameroon, as was the case in the Southern
Cameroons. Interests of a geographical, social, economic, historical. etc.,
nature were undeniably involved in this choice.
Fundamentally, the Application of the Federal Republic of Cameroon, in
asking the Court to pronounce upon the fact that [p 164] certain measures or
attitudes of the Administering Authority were not in conformity with the
Trusteeship Agreement for the Northern Cameroons—or with the instructions of
the General Assembly— seeks to establish, as one of its main objects, the
certainty that there was discrimination by the tutelary State to the
prejudice of the Applicant and to the benefit of the State of Nigeria. It
seems to me that from this point of view the institution of these
proceedings by the Republic of Cameroon cannot be disallowed, not only in
consideration of the direct legal interest which it has in the case (Article
62 of the Statute), but because on the date of the Application—30 May
1961—the Republic of Cameroon already possessed the status of membership of
the United Nations, which it had acquired as a result of the resolution of
the General Assembly of 70 September 1960.
6. With regard to action before the Court, the first condition laid down by
Article 19 of the Trusteeship Agreement is that a dispute must exist between
the Parties. Taking into account the fact that the Republic of Cameroon,
which became independent on 1 January 1960, was admitted to the United
Nations on 20 September 1960, the dispute with the United Kingdom as
Administering Authority for the Territory of the Northern Cameroons, must
have arisen after the date on which Cameroon became independent, for this
kind of dispute is conceivable only between two sovereign States. For the
purposes of the Court's jurisdiction under Article 19 of the Trusteeship
Agreement, it is necessary that the dispute must have taken shape after 20
September 1960, the date on which the admission of the new Republic to the
United Nations gave it the right of access to the International Court.
Having established these premises, it must also be recalled that, for the
purposes of Article 19 of the Agreement, the dispute must already have
existed and have taken shape before the Application (Mavrommatis case,
opinion of Judge Moore), for the said Article permits action before the
Court only if the disagreement has proved incapable of settlement by
negotiation or other means.
In the present case, an examination of the file leads to the conclusion
that the process by which the dispute arose and took shape was more or less
as follows :
(a) Documents issued by various organs of the United Nations —the
Trusteeship Council, the Fourth Committee, the General Assembly—and
submitted by the Parties as annexes to the pleadings or subsequently as
documents in evidence, frequently show, above all for the period between
1957 and 1961, the concern of these organs about the system under which the
Northern Cameroons was administered under United Kingdom Trusteeship and
reveal that a certain irregular situation was affecting the territory, the
General Assembly having, at the end of 1959, issued directives for the
modification of the administrative organization as the only way of [p 165]
guaranteeing the impartiality of the plebiscite which was to decide the fate
of the Trust Territory. Finally, the representative of France, on behalf of
the French Cameroons FN1 , and the Republic of Cameroon itself when it had
just acquired independence, trans-mitted communications expressing certain
reservations with regard to the plebiscite. Clear signs of disagreement had
already made themselves evident. The United Kingdom took part in these
discussions through its delegates to the United Nations.
----------------------------------------------------------------------------------------------------------------FN1
18 May 1960, Doc. T/PV L 086, cited on page 3 of the "White Book" (English
version).
----------------------------------------------------------------------------------------------------------------
(b) The Federal Republic of Cameroon, which had become independent on 1
January 1960 FN2, through its Ministry of Foreign Affairs and the
Secretariat of State for Information, around March 1961, published and had
circulated in official circles—including the United Nations Headquarters—a
pamphlet known as "The White Book" wherein allegations were made against the
United Kingdom in its capacity as Administering Authority for the Northern
Cameroons. viz.:
----------------------------------------------------------------------------------------------------------------FN2
Resolution 1349 (XIII) of the General Assembly, 749th Plenary Meeting, 13
March 1959.
----------------------------------------------------------------------------------------------------------------
(1) Dissolution of the personality of the Northern Cameroons resulting from
the division of the territory, the administration of which was incorporated
with that of two provinces of Nigeria, which was under British tutelage,
contrary—according to the Republic of Cameroon—to Article 76 of the Charter
of the United Nations;
(2) Failure to respect recommendations 4 and 5 of resolution 1473 (XV) of
the General Assembly, dated 12 December 1959, regarding the decentralization
and democratization of the Trust Territory and its administrative separation
from Nigeria;
(3) Infringement of Article 76 (b) of the Charter, as the Administering
Authority had not promoted the progressive development of the Territory
towards self-government, neglecting the participation of its inhabitants in
the administrative services;
(4) Responsibility of the Administering Authority concerning the results of
the plebiscite of II and 12 February 1961with regard to irregularities and
the absence of safeguards for the preparation and holding of the plebiscite
and the methods employed thereafter.
The representative of the United Kingdom answered the complaints contained
in the White Book in a letter dated 10 April 1961 to the Chairman of the
Fourth Committee (Annex IO to the Observations of Cameroon). It can thus be
affirmed, even though the two Parties had not yet confronted each other
directly concerning [p 166] the matter in dispute, that a fairly sharp
divergence of views had arisen between them.
(c) The third phase in the process of the development of the dispute, in
which it assumed its full shape, is the phase comprising the two Notes
exchanged between the Minister for Foreign Affairs of the Republic of
Cameroon and the United Kingdom Ambassador in Paris acting on behalf of Her
Britannic Majesty. In the Cameroonian Note dated 1 May 1961, the points of
law which constitute the subject of the disputes are stated (paras. (a) to
(d)), attention being drawn to those Articles of the Trusteeship Agreement
which, in the opinion of Cameroon, had been contravened (Articles 5 (b) and
6), and also to the provisions of resolution 1473 (XIV) of the General
Assembly of the United Nations which had not been respected
(Recommendations 4, 6 and 7). In connection with all of these a number of
questions were put to Her Majesty's Government as being questions which
should be submitted for judicial settlement in accordance with Articles 2
and 33 of the Charter. The statement of the points at issue coincides
roughly with that in the White Book, but it is drawn up more carefully and
in greater detail. The United Kingdom Memorandum (26 May 1961) gave a
categorical reply to the Cameroonian Note: any responsibility in connection
with the supposed infringements of the Trusteeship Agreement was denied
because, the decisions adopted by the General Assembly of the United Nations
having already settled the matter, the disagreement alleged of the Republic
of Cameroon was not a disagreement with the United Kingdom but with the
United Nations.
The two diplomatic documents to which I have just referred thus contain the
essential elements of an international dispute, in other words, a conflict
of legal views on one or more points of law with respect to a particular
case. Moreover, the "memoranda" reveal that the dispute had taken definitive
shape in May 1961, after the admission of the Republic of Cameroon to the
United Nations (20 September 1960) and before the expiration of the
Trusteeship Agreement (1 June 1961).
In addition the United Kingdom Memorandum provides another element of
assistance in forming a judgment, namely the fact that the negotiations
entered into by Cameroon with a view to settling the dispute by judicial
means led to a "deadlock". The United Kingdom refused to seek a legal
solution. In this respect, the condition laid down in Article 19 of the
Trusteeship Agreement, concerning the breakdown of negotiations, is
fulfilled.
In its Application of 30 May 1961, based on Article 19 of the Trusteeship
Agreement, the Republic of Cameroon reiterates to the Court the complaints
contained in its Memorandum of I May, not omitting to add that the United
Kingdom disputed the arguments submitted by the Applicant. [p 167]
Taking all this historical background into account, I come to the conclusion
that a dispute exists between the Republic of Cameroon and the United
Kingdom according to the doctrines of international law.
7. The second question which arises is whether the dispute concerns problems
relating to the application or interpretation of the Trusteeship Agreement
within the meaning of Article 19 thereof. The very wording of the
Application makes it possible to give an affirmative answer to this
question. The Court is asked to decide whether the United Kingdom, in its
capacity as Administering Authority, interpreted and applied, correctly or
incorrectly, the Trusteeship Agreement and, in consequence, whether it
respected or failed to respect certain articles of the said Agreement and
certain decisions of the General Assembly of the United Nations previously
accepted by the United Kingdom. It seems obvious to me that the decision to
be taken by the Court would constitute an act of interpretation concerning
the proper or improper application of the Trusteeship Agreement. The
condition laid down in this connection by Article 19 of the Agreement has
thus been complied with.
8. The other pleas entered by the Respondent by u7ay of preliminary
objections must be analysed here.
(a) In the first place, the United Kingdom considers that the chief aim of
the Application is to gainsay the validity of the plebiscite which brought
the Trusteeship to an end, all the other complaints against the conduct of
the Administering Authority throughout the existence of the Trusteeship
being subordinate to this principal motive. But, according to the United
Kingdom, the two facts of the holding of the plebiscite and the declaration
of the termination of the Trusteeship do not come within the terms of the
Agreement, which does not provide for any obligation on the part of the
tutelary State in this connection, the General Assembly of the United
Nations being the only authority which dealt with these aspects, in
accordance with Article 85, paragraph 1, of the Charter, in collaboration
with the United Kingdom. Consequently, that for which the Application is
basically asking relates to a matter which falls outside the field of
application of the Trusteeship Agreement and which exceeds the Court's
capacity to be seised of the case under the terms of Article 19 of the
Agreement.
I must Say, in the first place, that an examination of the contents and of
the submissions of the Application and Memorial of the Republic of Cameroon
does not reveal any claim regarding the annulment of the plebiscite or the
reconsideration of the agreement by which the General Assembly terminated
the Trusteeship in respect of the Northern Cameroons. The reference to the
nullity of the plebiscite that is made in the White Book was not reproduced
in the pleadings laid before the Court.[p 168]
This fact being established, it must be noted that by its very nature and in
the literal meaning of those chapters of the Charter which relate to the
subject, the system of trusteeship is temporary and transitory, for Article
76 (b) of the Charter, read with Articles 73 (b) and 87 (d) foresees its
termination sooner or later. It goes without saying that it would not be
possible to fix beforehand in the trusteeship agreements a date for the
political emancipation of the Territory or to determine the procedure by
means of which the extinction of the trusteeship must be achieved, for
everything will depend upon the special circumstances in each territory. It
is for this reason that the text of the Charter did not lay down general or
rigid provisions to settle in each case the time for the extinction of the
trusteeship nor the methods to be applied. But it is precisely on that
ground that a reasonable interpretation of the Charter justifies the
presumption that these details must be decided, when the proper time comes,
by the United Nations in agreement with the Administering Authority. Even
supposing, as is asserted by the United Kingdom, that the recommendations
made by the General Assembly with respect to these points are not binding
upon the Administering Authority, being mere recommendations, that is to say
before the said Authority has expressed its views thereon, it would
nevertheless be true that as from the moment when the said Authority
accepted those recommendations and began to apply them in its capacity as
the executive organ of the Trusteeship, a legal bond between the tutelary
State and the United Nations in the case in question is created and the new
function becomes incorporated in the framework of the Trusteeship Agreement
as a legal obligation. In the present case, resolutions 1473 (XIV) and 1608
(XV) of the General Assembly were expressly accepted and implemented by the
United Kingdom. The operations provided for relating to the preparation and
holding of the plebiscite were thus transformed into acts of administration
of the Trusteeship for which the Administering Authority was directly
responsible: hence liability would be incurred should any incorrect conduct
vitiate the results of this consultation of the people.
(b) In the second place, it was argued by way of a preliminary objection
that the Federal Republic of Cameroon and all other Members of the United
Nations lost any right to complain of any breach of the general obligations
imposed upon the Administering Authority by the Trusteeship Agreement on 21
April 1961, when the General Assembly decided to approve the plebiscite and
to terminate the Trusteeship Agreement (resolution 1608 (XV)). The
Cameroonian Application dated 30 May 1961 thus proves to be belated and
misplaced.
It seems to me that this argument runs counter to the letter and the
intention of resolution 1608 (XV), in which it can be seen that the General
Assembly, though meeting on 21 April, decided on that date [p 169] that the
Trusteeship Agreement—and consequently the Trusteeship itself—should not
terminate for the Northern Cameroons until several weeks later, namely on 1
June 1961, that is to say, two days after the filing of the Application. The
task of the Administering Authority and its responsibilities thus continued
to be in force for the United Kingdom when the Application was filed. This
objection of inadmissibility must consequently be dismissed.
(c) In the third place, the United Kingdom asserts—using an argument ratione
temporis—the issues constituting the subject-matter of the dispute must not
be prior to 20 September 1960, when the Republic of Cameroon was admitted as
a Member of the United Nations, for that State cannot enjoy the advantages
of the judicial protection accorded to Members of the Organization in
relation to issues which relate to periods when the Applicant would not have
been entitled to appear before the Court. Nor would the Court have had
jurisdiction to give judgment.
This contention interprets Article 19 of the Agreement in a restrictive way
which is not in conformity with the literal text of the provision. According
to the terms of Article 19, the Court's jurisdiction extends to—
"any dispute. whatever which should arise between the Administering
Authority and another Member of the United Nations".
Having stated this text it is now necessary to interpret it in accordance
with the natural meaning of the words. The Article does not take into
account the dates of the facts which gave rise to the dispute in connection
with the date of the admission of the Member State to the United Nations.
It is solely the capacity of Member which gives the newly joined State the
same rights as other Member States in the matter of taking legal action. If
the dispute has arisen in regard to the interpretation or application of a
treaty— as is the case here—it is presumed that the facts which gave rise to
the dispute can have taken place and occurred at any time during the
existence of the treaty. Were it otherwise, the Applicant State could not
fulfil its task of watching over the integrity and fidelity of the treaty.
It is certainly not inappropriate here to quote a sentence from the Judgment
in the Mavrommatis case:
"... in cases of doubt, jurisdiction based on an international agreement
embraces all disputes referred to it after its establishment". (P.C.I.J.,
Series A, No. 2, p. 35.)
If—from another aspect—the juridical person which raises the dispute does
so in its dual capacity as Member State of the United Nations and
independent State representing an individual or special legal interest in
the case, it is none the less true that that State may demand the
investigation of facts prior to its political [p 170] emancipation, seeing
that an undeniable link of dependence, a sort of successive solidarity,
exists between the actual situation on the date of the Application and the
events which previously played their part in bringing about that situation
during the period of the trusteeship. It is difficult to think of the whole
process of the Administering state's conduct during the trusteeship as
being divided into watertight or non-communicating compartments. A certain
parallel may be found, in this connection, in the field of private law if
one recalls the case of an infant who, on achieving full age, seeks to
examine his guardian's acts of administration during his minority.
The assertion of inadmissibility ratione temporis is thus, in my view, not
admissible.
(d) In the fourth place, in the opinion of the United Kingdom, the
Application and the Memorial of the Federal Republic of Cameroon do not in
any way conduce to any practical effect, as they are limited to asking the
Court to "state the law" regarding the points set out as the subject-matter
of the dispute, without any request for material reparation, restitution,
etc., having been formulated. In other words, supposing that a dispute does
exist, the United Kingdom points to the lack of any legal interest impelling
the Applicant to ask not only for declaration of its rights but also for the
material re-establishment of the legal position which has been infringed. It
is therefore claimed that this is an unreal dispute, a moot, which in no
way resembles disputes of a normal kind. Such a dispute is said to have no
practical reason. In this connection—adds the United Kingdom—it could well
be maintained that—the Cameroonian Application constitutes a request for an
advisory opinion or is aimed at the staging of an academic debate, but in no
case can it be considered as subject-matter for a judgment properly so
called on the part of the International Court.
The admissibility of a declaratory legal action at the international level
is recognized in advance in paragraph 2 of Article 36 of the Statute of the
Court (sub-paragraphs (a), (b) and(6)). Even though the present case does
not relate to an action where jurisdiction is founded upon the optional
clause or upon a special agreement, it is nevertheless true that the
description of matters within the jurisdiction of the Court contained in
paragraph 2 constitutes a statement of general application from which the
cases covered by paragraph I can also benefit. Furthermore, the doctrine of
the admissibility of Applications to the Court for judgments of a merely
declaratory nature is well known in the case-law of the Interna-tional
Court; I therefore feel that it will be sufficient to refer to this
case-law, several pertinent examples of which are cited in the file (for
instance, the Corfu Channel case), as a ground for dismissing the objection
raised. Let us further consider the question concretely. [p 171]
The Application of Cameroon asks the Court to give a decision on the
question whether certain acts or attitudes of the United Kingdom, as
Administering Authority, are or are not in accordance with the law, i.e.
with certain provisions in the Trusteeship Agreement. The Application also
asks the Court to give a decision as to whether the United Kingdom has
contravened the law by refraining from giving effect to certain precise
decisions of the General Assembly of the United Nations relating to the
administration of the Trust Territory. The grounds of law and fact on which
these requests are based were specified by the Applicant in the
Application, in accordance with the Rules of Court. This is therefore a
legal controversy falling under Chapter II of the Statute.
In my view, the character of a request for an advisory opinion must not be
attributed to this controversy about the law. The differences are quite
clear. In the majority of cases opinions are concerned with making provision
for future situations: they are opinions sought from the Court in order to
be better informed as to how the law must be applied in the future in
particular cases which have not yet occurred. In contentious proceedings, on
the other hand, cases submitted for decision by the Court almost always
relate to the past: they are aimed at obtaining a decision as to the legal
effect of acts already committed by the respondent. It is true that,
exceptionally, there are advisory opinions which refer to past situations
(see the case concerning Certain Expenses of the United Nations, 1962); and
there are also, above all in the case-law of individual countries,
circumstances in which a declaratory judgment can be sought in advance in
order to find out whether what one of the parties considers his rights will
or will not be considered as such in a future bilateral situation. But here
there is a second difference of capital importance between an advisory
opinion and a judgment of the Court, namely that the former is in no way
binding upon those concerned, the opinion given having only moral authority,
while the second imposes upon the parties a legal obligation having the
force of res judicata. In the present case, the judgment sought by the
Republic of Cameroon has the characteristics of a contentious judgment.
The argument of the United Kingdom will be recalled: admitting—it states
the hypothesis that a dispute exists between the Parties, what would be the
practical purpose of a mere statement of the law regarding such dispute?
What would be the effect of the Court's judgment with respect to the
principle of res judicata if there be no judicial decision specifying
tangible obligations to be fulfilled by the losing Party? The Written
Observations of Cameroon and Counsel for Cameroon in his oral argument
replied to these questions raised by the Respondent Party. So far as I am
concerned, I feel that the reasoning advanced by the Applicant in this
respect is satisfactory, for it is certainly true that the points raised in
the Application are susceptible of a decision entail-[p 172]ing practical
results. In declaratory suits, the pure and simple definition of the law, in
favour of one or other of the parties, con-stitutes in itself a judgment
which goes beyond the purely speculative or academic field and gives the
successful party a truly objective element, namely the adjudication of a
right with which what I call his "legal assets" are enriched, that is to
say, the whole sum of rights which that party possesses in its capacity as a
legal person. If the applicant succeeds, it is precisely the fact of
ensuring to him the possession of the property or right in a final and
irreversible manner, in virtue of the principle of res judicata, which
constitutes the practical reparation awarded to the successful party by the
declaratory judgment. If it is the respondent who appears in the judgment as
the successful party, his legal position is consolidated and all the matters
of complaint in the application become without foundation, the effect of the
judgment being a public rehabilitation. In the case of the losing party, a
certain deterioration or diminution takes place in its personal legal
situation under the influence of the res judicata, the two elements of this
diminution being the obligation to accept without the possibility of
objecting thereto the decisions contained in the judgment and, in certain
cases, the obligation to discharge the responsibilities, which may result
from the court's statement of the law. All these effects of a declaratory
judgment become evident to the outside world in a concrete and perceptible
fashion and take their place within the field of social or international
life beyond any purely moral or individual confines.
It is not for judges to speculate as to what will be or may be all the other
material or tangible aims which are sought but not expressed by the
Applicant at the time of drawing up its Appli-cation : it is well known that
usually the statement of the law in a declaratory judgment can be the basis,
the point of departure, for other legal actions or other economic or
political steps connected with the legal consequences of the judgment.
Counsel for Cameroon gave an explanation in this regard. But this concerns
only the Applicant. What is essential, I repeat, is that, in my view, the
decision which has been asked of the Court in this case was not merely
advisory or academic nor simply abstract or theoretical and still less
devoid of any real effect. All that was asked for was a judgment as to
whether—as a consequence of certain facts-there has or has not been an
infringement of certain clauses of a treaty in force between the Parties
(Article 36, para. 2, sub-para. (c), of the Statute). In my opinion this
Application is admissible.
(e) In the fifth place, although the Application and the Memorial do not
mention any infringement of Articles 3 and 7 of the Trusteeship Agreement on
the part of the Administering Authority, the United Kingdom's defence
pointed out that a reference to this [p 173] subject had been made belatedly
in the Written Observations of Cameroon on the United Kingdom
Counter-Memorial. The Attorney-General drew the Court's attention to this
point for, being a new matter of complaint submitted belatedly, the Court,
he claimed, could not entertain it, still less give judgment upon it. It is
a question of formal procedural admissibility.
(f)
It seems to me that a wrong view was taken by the Respondent as to the
initial omission of a reference to Article 3 of the Agreement. Although it
was not referred to explicitly in the Application or the Memorial, it is
impliedly mentioned there. In fact, Article 3 of the Agreement does not
impose any concrete or special obligation, but rather a general obligation
on the Administering Authority to administer the Territory with a view to
achieving the basic objectives of trusteeship laid down in Article 76 of the
Charter and to collaborate with the United Nations in the discharge of the
functions assigned to that Organization by Article 87 of the Charter. It
goes without saying that if the Application imputes to the United Kingdom,
as Administering Authority, the violation of Articles 5 and 6 of the
Agreement, which relate to concrete obligations of the Administering
Authority with a view to achieving the aims of the trusteeship, it must be
deduced therefrom that the United Kingdom also infringed the provisions of
Article 3, which is general and the text of which covers the substance of
other Articles of the Agreement which were relied upon by the Applicant.
In the same way, if the Administering Authority accepts as part of its
tutelary functions a recommendation by the United Nations concerning the
administration of the trusteeship, this acceptance obliges it to give
effect punctiliously to the instructions of the Organisation within the
meaning of Article 7 and the second part of Article 3 of the Trusteeship
Agreement. Seeing that the Federal Republic of Cameroon asserted in its
Application that the United Kingdom did not fulfil certain obligations
flowing from resolution 1473 (XIV) of the General Assembly, which was
adopted with the consent of the United Kingdom, it would follow that an
infringement of Article 7 of the Trusteeship Agreement might have taken
place. It is true that the Application did not mention the number of the
Article in question, but it took account of its contents.
I conclude therefrom that the formal objection of inadmissibility advanced
by the United Kingdom with respect to this part of the Applicant's statement
of complaints is without foundation.
(f) In the sixth place, the Preliminary Objections of the United Kingdom
include a final point which, however, the Attorney-General did not press
during the oral proceedings. But I cannot avoid mentioning it, the more so
in that this point relates in a certain way to the admissibility of the
Application. I have in mind the allegation that the Application and the
Memorial were not[p 174] drafted in accordance with Article 32 of the Rules
of Court, for, contrary to the provisions of that Article, the statement of
the facts and the grounds in these pleadings is said to be vague and
abstract. The claim is accordingly said to become inadmissible.
But the wording of the Application and the Memorial of Cameroon shows,
nevertheless, that the facts mentioned by the Applicant as constituting
infringements of the Trusteeship Agreement, and also the legal provisions
applicable, were stated with sufficient precision and in sufficient detail.
The fact that the final submissions in the Application asked the Court to
give judgment upon "cerfain obligations", without specifying them in a
concrete manner, is easily explicable seeing that the word "certain" was
obviously used with reference to the obligations previously specified in
the body of the text. In my view, there has been no infringement of Article
32 of the Rules of Court.
9. The time has now come to examine the final condition imposed upon the
Parties by Article 19 of the Trusteeship Agreement in order that any dispute
relating to the interpretation or application of its clauses may be
submitted to the Court. Article 19 provides that the dispute must be such as
cannot be settled by negotiation or other means. One of the United Kingdom's
objections relates to this issue.
It is first maintained by the United Kingdom in this connection that no real
attempt was made before the Application to settle the dispute (if dispute
there be) by means of negotiation. In this connection, I should like to
refer to one of the paragraphs above where reference is made to the
memoranda, dated I and 26 May 1961 respectively, exchanged between the
Government of Cameroon and the Foreign Office. I stated there that these
documents con-tain all the elements of a proper and sufficient diplomatic
negotiation wherein the subject-matter of the dispute is set out in detail
by Cameroon and an amicable proposal is made to submit the dispute to the
International Court of Justice. The United Kingdom reply rejects the
imputations made against it in respect of matters the responsibility for
which, in its opinion, lies not with the Administering Authority but with
the United Nations; and it also declines to accept judicial settlement of
the matter. The existence of negotiation cannot be denied. These documents
furthermore show by their terms that diplomatic negotiation failed, which
amounts to saying that the impossibility of reaching an amicable settlement
was certain. Moreover, the impossibility of negotiating a settlement other
than a judicial one with the United Kingdom follows from the fact that after
the date of resolution 1608 (XIT) a direct solution of the dispute did not
come within the control or the sole decision of the United Kingdom
Government, seeing that at that stage in the events it did not have the
power by itself to alter a state of affairs created—with its assent—by [p
175] a resolution of the General Assembly of the United Nations. The dispute
was thus not one that could be settled by friendly negotiation.
There was, according to the United Kingdom, a second condition. Diplomatic
negotiation having been ruled out, there might have been—in the words of
Article 19—some "other means" by virtue of which the dispute could have been
settled. And, in the United .Kingdom view, this "other means" of settlement
was resolution 1608 (XV) of the General Assembly of the United Nations of 21
April 1961, which, at the same time as it ratified the result of the
plebiscite held on II and 12 February to decide the fate of the Northern
Cameroons, put an end to the situation of Trusteeship and consequently
settled the problem of that territory, a judicial solution being thereby
precluded.
It seems to me difficult to admit that resolution 1608 (XV) could have had
this result. For this to be possible it would have been necessary for there
to be complete identity between the points raised in the Application and
forming the subject-matter of the dispute, and the points which formed the
subject of the General Assembly resolution. A comparison of the two
documents, however, shows a marked difference. Whereas the former—the
Application—clearly reveals its legal nature, the second—resolution 1608
(XV)—emphasizes its political aim. The aims of the one and of the other are
altogether distinct. As has already been stated, the resolution of the
General Assembly confirmed or legalized the results of the plebiscites in
the two Cameroons, Northern and Southern, and decided that the regime of the
Trusteeship under United Kingdom administration should come to an end on two
later dates. The Application and the Memorial of the Republic of Cameroon
seek to establish the individual responsibility of the United Kingdom as
Administering Authority for the Northern Cameroons, with regard to certain
acts and matters concerned with its administration of the Trusteeship while
it lasted. It would not be right to confuse or identify these two fields of
application. That is why, in my opinion. it is far from being correct to Say
that resolution 1608 (XV) settled the dispute by way of "another means" of
settlement. What is true is that the voting of resolution 1608 (XV)—the
contents of which did not provide satisfaction for the Applicant's interest—
finally gave form to the still nascent dispute between Cameroon and the
United Kingdom, and precipitated the filing of the Application.
But there is another still stronger reason for declining to consider
resolution 1608 (XV) of the General Assembly as the "other means" of
settling the dispute referred to in Article 19 of the Trusteeship
Agreement. The most elementary requirement of logic demands that, for such
"other means" to be legally valid and effective, it must include as one of
its constituent features the intervention and consent of the disputing
States, namely in this case, [p I76] the Federal Republic of Cameroon and
the United Kingdom. That is why I think that, in the intention of the
Trusteeship Agreement, the mention which is made of "other means" of
settlement is a reference to the means of peaceful settlement specified in
Article 33, paragraph I, of the Charter (enquiry, mediation, arbitration,
etc.), all of which are characterized by the mutually agreed participation
to a greater or lesser extent, of the two parties in the process of
settlement. That is precisely what was lacking in resolution 1608 (XV) of
the General Assembly, which was adopted without the consent and even against
the vote of the Republic of Cameroon. Seeing, moreover, that this resolution
dealt with subjects other than those which constituted the dispute with the
United Kingdom, the action of Cameroon, with regard to the dispute itself,
was not directed against the binding effects of resolution 1608 (XV). The
latter having exhausted administrative or institutional means, and in view
of the consequences that the Assembly's decision was going to produce both
with regard to the interests of the Republic of Cameroon and also with
regard to the inhabitants of the Northern Cameroons, the Applicant decided
to follow the other course which was open to it under Article 19 of the
Trusteeship Agreement, invoking the judicial safeguard with a view to
obtaining, with the administering State, a judicial decision based on law on
the issue of the legal responsibilities deriving from the facts. This is a
case therefore not of any attitude of rebellion or disobedience in respect
of resolution 1608 (XV), but of the legitimate use of another parallel
recourse expressly recognized in Article 19 as cited above.
10. This reasoning, however, gives rise to another observation of capital
importance on the part of the United Kingdom because, according to that
country, if the Application, of the Republic of Cameroon is, notwithstanding
resolution 1608 (XV) of the General Assembly, to be submitted to the Court,
this would in fact amount to establishing a sort of superior Court, and to a
veritable revision of the decisions of the United Nations by the Court,
which would destroy all the authority of the organs of the international
Organization. This kind of dependence or subordination of these organs in
relation to the Court would not be in conformity with the spirit of the
Charter. According to the Charter, the resolutions of the General Assembly,
when adopted by the necessary majority in each case, are definitively
binding, even upon Member States who have not voted for them. This
observation leads the United Kingdom to dismiss what was called the
"duplication" theory according to which the two means, administrative and
judicial, can be utilized to settle issues raised in the United Nations.
Considered from a concrete point of view and in relation to the present
case, this observation of the United Kingdom is not in accordance with the
actual facts. The Application of the Federal [p 177] Republic of Cameroon
does not seek the waiving of resolution 1608 (XV) or the annulment of the
plebiscite in the Northern Cameroons, or the re-establishment of trusteeship
for that Territory. There were even during the oral proceedings explicit
statements by the Applicant Party to this effect. What the Application asks
for is a statement of the law by the Court on the question whether, in the
light of the wording of the Trusteeship Agreement of 13 December 1946 and of
resolution 1473 (XIV) of the General Assembly, the United Kingdom, in its
capacity as Administering Authority for the Northern Cameroons, has or has
not committed infringements of certain provisions concerning the application
of that Agreement or of that resolution. From this statement of the
Application a number of conclusions can be drawn:
First: the legal action is not aimed at the United Nations nor does it call
in question any of the resolutions of the organs of that Organization.
Second: the Republic of Cameroon's action is directed against the United
Kingdom in its capacity as the individual State entrusted with the
administration of the Northern Cameroons under the Trusteeship.
Third: the Application relies on the principle of the responsibility of
States as juridical persons of public law for the performance of acts the
object of which is the application of inter-national convention freely
entered into.
Fourth: in the event of its case being declared well founded, Cameroon has
not asked the Court to make any actual order which could bring about a
change in the present actual situation in this case, nor to award any
material compensation: the Application is thus confined to asking the Court
to "state the law" in the manner of a declaratory judgment.
It seems to me that these considerations are in themselves sufficient to
rule out the fear that the authority of the United Nations might be affected
or diminished by a judgment of the Court settling the present case. No
conflict need be contemplated between the two powers.
It remains to examine the question from the general aspect and from that of
principle and in the light of the terms of the Charter of the United
Nations. The oral proceedings in the present case provide us with abundant
material in this connection. To sum up in a couple of words: although the
concept of law is not foreign to the administrative activities of official
institutions—including the organs of the United Nations—resolutions of this
kind are primarily of a political nature and do not always reflect a
scrupulous adaptation of the rules of law to political requirements. In the
legal sphere, on the other hand, it is exclusively the law which dictates
its norms.[p I78]
So far as concerns international institutions, their statutes define the
scope and force of their administrative resolutions and the wav in which
they are to be amended or revised. In the Charter of the United Nations
there is not to be found, with regard to the resolutions of the General
Assembly, any provision excluding all judicial jurisdiction. On the
contrary, the general purport of the Charter seems to me to reveal a
certain parallelism and a clear compatibility of the two institutions.
There is indeed one outstanding idea to be found in the text of several
Articles of the Charter in regard to the paramount importance of law and of
the legal administration of justice between nations for the purposes of
preserving the world from war and achieving the supreme goal of
international peace. Starting with its preamble, the Charter proclaims the
faith of the peoples of the United Nations "in fundamental human rights" FN1
and in "the equal rights FN1... of nations large and small". In Article I
the Charter lays down as one of the purposes of the United Nations "respect
for the principle of equal rights FN1 and self-determination of peoples FN1
... encouraging respect for human rights FN1 and for fundamental freedoms
FN1 for all".
----------------------------------------------------------------------------------------------------------------
FN1 My italics.
----------------------------------------------------------------------------------------------------------------
Article 2 mentions as one of the principles of the Organization and its
Members that they shall "fulfil in good faith the obligations] assumed by
them in accordance with the present Charter" and "shall settle their
international disputes by peaceful means FN1 in such a manner that
international peace and ... justice are not endangered". Articles 7 and 92
mention the International Court of Justice as one of the principal organs of
the United Nations and state that its Statute forms an integral part of the
Charter. Article 33, paragraph 1, stipulates that:
"The parties in any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall FN1 first of all,
seek a solution by negotiation ... arbitration, judicial settlement FN1",
etc.
----------------------------------------------------------------------------------------------------------------
FN1 My italics.
----------------------------------------------------------------------------------------------------------------
Article 73 of the Charter lays down the premise that "the administration of
territories whose peoples have not yet attained a full measure of
self-government" constitutes a responsibility of the administering States
and mentions the fact that the Members "recognize the principle that the
interests of the inhabitants of these territories are paramount", and that
the protection of them is accepted as a "sacred trust". Article 76 specifies
the basic objectives of the Trusteeship system, amongst which it once more
mentions "respect for human rights and for fundamental freedoms".
As for the Statute of the International Court of Justice, Article 35
provides that "The Court shall be open to the States parties to the present
Statute", that is to Say, to all the Member States [p I79] of the
Organization. Lastly, Article 36 determines the scope of the Court's
jurisdiction, which can be based on agreement between the parties, on the
express provisions of the Charter or on treaties and conventions in force.
This enumeration reveals the importance attributed by the Charter to the
concepts of law, justice and the responsibility of States in respect of
their legal obligations, and it shows the way in which it was sought to
extend the jurisdiction of the International Court of Justice. It would be
no exaggeration to Say that the function of the Court was regarded by the
founders of the United Nations as constituting one of the most striking
guarantees for the operation of the new international system.
It would be impossible to reconcile this criterion of the Charter— entirely
in favour of legal solutions—with the complete exclusion of the judicial
safeguard in cases in which the General Assembly decided upon the fate of
trust territories. The administrative decision with regard to the political
future of such a territory is one thing, the definition of the
responsibilities which, on the legal plane, may be held to be binding upon
the administering State in respect of the way in which the trusteeship is
exercised is something quite different. The Administering Authority is not
there merely to execute automatically the orders of the General Assembly, it
is a legal entity which has freely and voluntarily accepted its task, which
may formulate observations and reservations with regard to the Assembly's
agreements, which may indeed discharge itself of the trust if such
agreements conflict with its views and which must, where appropriate,
account for its actions to those having a legal interest therein.
Moreover, it must be remembered that having regard to the composition of the
United Nations and its character as a supreme world institution on the
political plane, no means of judicial action against the institution itself
is provided for in the Charter and, consequently, no institutional
responsibility can result therefrom in respect of its acts as an
institution. But the case is entirely different as regards Member States
considered individually. They act within the institution as juridical
persons and are as such responsible to third States in respect of their
conduct. I believe that that is precisely one of the reasons for which, so
far as relations between States are concerned, the Charter created the
judicial safeguard which the Court is called upon to apply. In the
particular case which is the subject of the present proceedings,
obligations and responsibilities are provided for in the Trusteeship
Agreement accepted by the United Kingdom and relating to the Northern
Cameroons. Since Article 19 of that Agreement provides a jurisdictional
clause for the determination of such responsibilities, I believe it to be my
duty as a judge to decide in favour of jurisdiction.
[p 180] The judicial guarantee is, in truth, one of the most important
pillars of modern society. It means the primacy of law over other factors:
interests, negligence, abuse or force. It gives force to the principle of
responsibility as a regulating element in social and international conduct.
It can prevent further transgressions in the future. In short, it
constitutes a manifold guarantee the purpose of which is to state the law
when it requires to be stated: either to prevent deviation in the
application of the law, or to correct it when it occurs; to adjudicate upon
breaches of the law or to establish the responsibility of the offender; a
whole mosaic of powers covering all international activities: the conduct of
governments, the policies of States, the administrative acts of the great
international institutions. It is certainly for this reason that the
jurisdictional clause (in this case Article 19 of the Trusteeship
Agreement) does not restrict action by States Members of the United Nations
by limiting the scope of the judicial protection which it affords, and
likewise does not require that the previous consent of the Organization
should be given to a Member State which proposes to avail itself of it. To
sum up what I have said, it seems to me that Article 19 is an expression of
this supreme and indeed universal guarantee for the claiming in the last
resort of a decision of a court of justice to settle in law cases or
political requirements or interests of any other sort which are capable of
causing legal injury to third parties. It is important that this safeguard,
which is as necessary as it is useful, should not be weakened.
It is regrettable that, on the basis of the suggestion which was at one time
made by the General Assembly of the United Nations, a request for an
advisory opinion was not made with regard to the various questions relating
to the administration of the Trust Territory of the Cameroons. But this
opportunity having been lost, it only remains for the Court—at the present
stage of events to deliver its Judgment on the Application of the Republic
of Cameroon in accordance with Article 19 of the Trusteeship Agreement. And
I must say that in my opinion the Objection based on "duplication" cannot be
upheld.
11. The examination which I have just undertaken of the various Objections
raised by the United Kingdom to the Application of the Federal Republic of
Cameroon reveals that some relate to the admissibility of the claim and
others to the jurisdiction of the Court, although the two categories are not
clearly independent or distinct, for certain Objections expressed on the
basis of inadmissibility also involve a denial of jurisdiction. Looked at
from another angle, there are some Objections which relate to simply
formalistic or procedural aspects, while others, on the other hand, touch
upon the very substance of the dispute and base upon it the inadmissibility
of the claim. That is why the Objections of the United Kingdom as a whole at
certain times take on a complex [p 181] and even inextricable appearance.
Nevertheless, I have come to the conclusion that all the Objections are
really properly called preliminary, as the Respondent has termed them, in
the sense that I have not in practice found it necessary to reach a decision
upon the merits of the dispute for the purpose of examining the
admissibility or the non-admissibility of any particular Objection. It is
for these reasons that I have not found it indispensable to reserve some of
the Objections, as being peremptory ones, for the final judgment on the
merits, in the event of the Court's holding that it has jurisdiction.
12.But even if an examination of the Objections raised had led the Court to
consider the case put forward in the Application, there is a further
question which was raised by the Court, namely whether "the Court, when
seised ... is ... compelled in every case to exercise" its "jurisdiction",
or whether, having regard to certain "inherent limitations on the exercise
of the judicial function" it should refrain from adjudicating in the present
case. After an analysis of the relevant pleadings (Application, Memorial,
Observations on the Objections, Submissions) "to determine whether the
adjudication sought by the Applicant is one which the Court's judicial
function permits it to give", the prevailing opinion was that the true
intent of the claim was to impugn the injustice of the attachment of the
Northern Cameroons to a State other than the Republic of Cameroon, this
injustice being due to the fact that the United Kingdom, as Administering
Authority, allegedly created such conditions that the trusteeship led to
that attachment. Since, however, the Federal Republic expressly stated that
it was not asking the Court to redress the alleged injustice or to award
reparation of any kind, nor to review the decisions of the General
Assembly, it is said that the Court is relegated to an issue remote from
reality and asked to give a judgment not capable of effective application.
It may be inferred—it is said—that what the Applicant wants is that the
Court should consider certain acts of the United Kingdom solely for the
purpose of arriving at conclusions conflicting with those expressed by the
General Assembly in resolution 1608 (XV); but in spite of that the Applicant
has itself recognized that that resolution is definitive and irrevocable,
and the judgment of the Court could not, for these reasons, have any
practical consequences or fulfil a genuine judicial function. Moreover,
since it has been established that the Trusteeship Agreement was validly
terminated, it follows that the Trust itself disappeared, that any rights
conferred by that Agreement upon other Members of the United Nations came to
an end and that the possibility of the application of Article 19 relating to
the jurisdiction of the Court ceased to exist on 1 June 1961, particularly
if it be borne in mind that the Application included no claim for reparation
but merely [p 182] sought a finding of a breach of the law. The Court has,
therefore, decided to put an end to the present proceedings.
To my great regret, I am bound to express my dissent from these views of the
majority of the Court, because it seems to me that the basis on which they
rest is not correct. My point of view is, of course, in agreement with the
assertion that the claim is for nothing more than a finding of a breach of
the law, namely that the United Kingdom, in the application of certain
measures, has failed to respect certain obligations provided for in the
Trusteeship Agreement or certain instructions of the General Assembly. It is
a case in which the legal responsibility of the trustee must be clarified. I
have already explained in paragraph 8, sub-paragraph (d), of this Opinion
why and how this means of "stating the law", which is the characteristic of
declaratory judgments, combines the merits of practical effectiveness and
binding force as res judicata, these two characteristics representing the
typical attributes of a judicial decision. In my opinion, a decision of this
kind is clearly included in the function of the administration of justice
which imprints its features upon the judicial function of courts, as is
provided by Article 36, paragraph 2, sub-paragraph (c), of the Statute of
the Court. Precedents to this effect in similar cases are to be found in the
decisions of the Permanent Court and of the present Court. (For example, the
Polish Upper Silesia case, P.C.I.J., Series A, No. 7; the Corfu Channel
case, I.C.J. Reports 1949, p. 36.) In those cases, as in the present case,
the judgment or the claim related to the past conduct of the Respondent,
that is, to its legal responsibilities.
It would not be right to contemplate including in any judgment in the case
any provisions designed to modify resolution 1608 (XV) of the General
Assembly such as the annulment of the plebiscite, the detaching of the
Northern Cameroons from Nigeria or the reinstitution of trusteeship. To do
so would be to introduce into the judgment matters not contained in the
Application. It must be recalled that the proceedings instituted by the
Republic of Cameroon were directed solely against the United Kingdom and
not against the United Nations and that the subject-matter of the
proceedings relates only to matters concerning the performance, proper or
incorrect, of the Trusteeship Agreement by the Respondent, independently of
any decisions taken by the General Assembly. There is therefore no risk of
the Judgment's producing any conflict between the Applicant and the General
Assembly.
Although the Trusteeship Agreement for the Cameroons under British
Administration lapsed on 1 June 1961 as a result of resolution 1608 (XV),
the assertion that that Agreement can no longer be relied upon for the
purposes of judging the conduct of the Administering Authority in the past
appears to me to be too absolute and contrary to generally recognized
principles with regard to the application of laws. One thing is essential in
the present case: [p 183] that future situations should not be involved
since these, clearly, could not be governed by a treaty which had ceased to
be in force. The Application is concerned with past activities of the United
Kingdom, performed during the period of trusteeship. This retrospective
situation can only be envisaged in the light of the relevant law in force
at that period, that is to Say, the Trusteeship Agreement of 13 December
1946. The fact that, shortly after the formulation of the Application, the
Trusteeship Agreement ceased to be in force does not detract from the
applicability of this principle, for if the application of the Agreement
were challenged, the system of legal responsibility of persons would break
down and cases—entirely possible—of abuses or transgressions would pass with
impunity. The decisions of municipal courts and certain rules of public law
furnish useful examples which should not be disregarded on the
international plane. In many cases, the rules enacted in a repealed Civil
Code have been applied in cases of succession, when the death of a testator
occurred at a time when the Code was still in force. Similarly, conflicts
have arisen with regard to the unconstitutionality of certain laws of which
the text, to determine the point, has had to be read in the light of the
provisions of the Constitution under which they were enacted, in spite of
the fact that that Constitution had already been replaced by a later
Constitution or more than one subsequent Constitution. It seems to me that
in such cases, where the judgment must relate to a past situ-ation, the duty
of the Court is to place itself at the period of the events which are the
subject of the proceedings and to apply the laws then in force, even though
they should be no longer in force. The Trusteeship Agreement of 1946 is
accordingly properly invoked for the purpose of resolving the present case.
***
13. For the foregoing reasons, my opinion is that the claim is admissible,
that the preliminary objections of the United Kingdom are not well founded
and that the Court has jurisdiction to pass upon the merits of the
Application of the Federal Republic of Cameroon.
(Signed) J. L. Bustamante R.
[p184] DISSENTING OPINION OF JUDGE BEB A DON
[Translation]
As I cannot subscribe to the Judgment of the Court in this case, I wish to
avail myself of the right conferred by Article 57 of the Statute of the
Court to set out here the reasons for my dissent.
In the following statement, I shall not examine all the objections raised by
the United Kingdom. I shall merely endeavour to show that the grounds
adopted by the Court for saying that "it cannot adjudicate upon the merits
of the claim of the Federal Republic of Cameroon" are not conclusive. It
seems clear to me, however, that my reasoning will be better understood if
certain events are briefly recalled at the outset.
Before the First World War the Northern Cameroons in issue in this case were
part of the territory of Camerun under German protectorate.
After the war, Germany having renounced her rights and titles over her
"oversea possessions" under the Treaty of Versailles, Camerun was divided
into two mandated territories, one being entrusted to France and the other
to Great Britain.
The aim of the Mandates System was to ensure the well-being and development
of the peoples of the territories concerned and securities for the
protection of their rights were embodied in the system. It was thus
conceived primarily in the interests of these peoples and for that reason it
was stated that a "sacred trust of civilization" was laid on the
Mandatories.
As was rightly emphasized by the Court in the South West Africa cases
(I.C.J. Reports 1962, p. 329):
"The rights of the Mandatory in relation to the mandated territory and the
inhabitants have their foundation in the obligations of the Mandatory and
they are, so to speak, mere tools given to enable it to fulfil its
obligations."
In 1946, the United Nations having replaced the League of Nations, the
Mandates System was transformed into the Trusteeship System and the two
parts of the Cameroons were placed under this new system, but under the
administration of the same Powers.
Under the Trusteeship System the safeguards for the rights of the peoples of
the trust territories were substantially increased and supervision by
international bodies was strengthened and its organization improved.
Thus in the Trusteeship Agreement for the Territory of the Cameroons under
British Administration, approved by the General Assembly of the United
Nations on 13 December 1946, the following provisions are to be found: [p
185]
"Article 3.—The Administering Authority undertakes to administer the
Territory in such a manner as to achieve the basic objectives of the
International Trusteeship System laid down in Article 76 of the United
Nations Charter. The Administering Authority further undertakes to
collaborate fully with the General Assembly of the United Nations and the
Trusteeship Council in the discharge of all their functions as defined in
Article 87 of the United Nations Charter, and to facilitate any periodic
visits to the Territory which they may deem necessary, at times to be agreed
upon with the administering Authority.
Article 5.—For the above-mentioned purposes and for all purposes of this
Agreement, as may be necessary, the Administering Authority:
(a) Shall have full powers of legislation, administration and jurisdiction
in the Territory and shall administer it in accordance with the authority's
own laws as an integral part of its territory with such modification as may
be required by local conditions and subject to the provisions of the United
Nations Charter and of this Agreement;
(b) Shall be entitled to constitute the Territory into a customs, fiscal or
administrative union or federation with adjacent territories under its
sovereignty or control, and to establish common services between such
territories and the Territory where such measures are not inconsistent with
the basic objectives of the International Trusteeship System and with the
terms of this Agreement;
(c) And shall be entitled to establish naval, military and airbases, to
erect fortifications, to station and employ his own forces in the Territory
and to take all such other measures as are in his opinion necessary for the
defence of the Territory and for ensuring that it plays its part in the
maintenance of international peace and security. To this end the
Administering Authority may make use of volunteer forces, facilities and
assistance from the Territory in carrying out the obligations towards the
Security Council undertaken in this regard by the Administering Authority,
as well as for local defence and the maintenance of law and order within the
Territory.
Article 6.—The Administering Authority shall promote the development of
free political institutions suited to the Territory. To this end the
Administering Authority shall assure to the inhabitants of the Territory a
progressively increasing share in the administrative and other services of
the Territory; shall develop the participation of the inhabitants of the
Territory in advisory and legislative bodies and in the government of the
Territory, both central and local, as may be appropriate to the particular
circumstances of the Territory and its people; and shall take all other
appropriate measures with a view to the political advancement of the
inhabitants of the Territory in accordance with Article 76 (b) of the
United Nations Charter. In considering the measures to be taken under this
article the Administering Authority shall, in the interests of the
inhabitants, have special regard to the provisions of Article 5 (a) of this
Agreement. [p 186]
Article 7.—The Administering Authority undertakes to apply in the Territory
the provisions of any international conventions and recommendations already
existing or hereafter drawn up by the United Nations or by the specialized
agencies referred to in Article 57 of the Charter, which may be appropriate
to the particular circumstances of the Territory and which would conduce to
the achievement of the basic objectives of the International Trusteeship
System."
Article 19 of this Agreement entrusted the International Court of Justice
specially with the judicial protection of the trusteeship system.
***
By an Application of 30 May 1961 the Republic of Cameroon instituted before
the Court proceedings against the United Kingdom relating to the
interpretation and application of the Trusteeship Agreement of 13 December
1946 for the Cameroons under British administration. The Application also
referred to the failure to implement resolution 1473 adopted by the United
Nations General Assembly on 12 December 1959 concerning the future of the
northern part of the Cameroons under United Kingdom administration.
The provisions of this text referred to in the Application are paragraphs 4,
6 and 7 in which the General Assembly:
"4. Recommends that the plebiscite be conducted on the basis of universal
adult suffrage, all those over the age of twenty-one and ordinarily resident
in the Northern Cameroons being qualified to vote;"
"6. Recommends that the necessary measures should be taken without delay for
the further decentralization of governmental functions and the effective
democratization of the system of local government in the northern part of
the Trust Territory;
7. Recommends that the Administering Authority should initiate without
delay the separation of the administration of the Northern Cameroons from
that of Nigeria and that this process should be completed by 1October 1960."
Certainly at the date of the filing of the Application of the Republic of
Cameroon resolution 1608 (XV) adopted on 21 April 1961 by the General
Assembly (see Judgment, pp. 23-24) was already in existence, but it was to
enter into force in respect of the Northern Cameroons only from I June 1961.
It follows from this that when the Application was filed in the Registry of
the Court by the Agent for the Republic of Cameroon the Trusteeship
Agreement of 13 December 1946 was in force and so was the trusteeship regime
governed by that Agreement. Under [p 187] the terms of Article 19 of the
Agreement, which constituted the law applicable to the Application,
proceedings were instituted within the proper time-limits and the Court was
validly seised in accordance with the provisions of Article 40 of the
Statute and Article 32 of the Rules of Court.
The Agreement and the trusteeship were terminated on 1 June 1961 by virtue
of resolution 1608 (XV). There can be no doubt that an application filed in
the Registry of the Court after that date would not validly seise the Court,
for Article 19 of the Trusteeship Agreement which constituted the basis for
the Court's jurisdiction having disappeared and hence its implementation
being no longer possible, such an application would lack any legal basis and
would be inadmissible.
In the present case the situation is different. Here, the expiry of the
Trusteeship Agreement occurred only after the Court had been properly
seised.
No fact subsequent to the seisin of the Court, in particular the
circumstance that the Trusteeship Agreement terminated during the
proceedings, could be capable of re-opening the issue of such properly
established jurisdiction.
In the Nottebohm case (Judgment of 18 November 1953), the International
Court of Justice had to settle a question similar to that under
consideration here.
On 17 December 1951 the Government of the Principality of Liechtenstein
filed an Application instituting proceedings before the Court against the
Republic of Guatemala, concerning the conduct of the Guatemalan authorities
in respect of M. Nottebohm, who was regarded by the Applicant as a national
of Liechtenstein.
The Government of Guatemala raised a preliminary objection to the
jurisdiction of the Court on the ground that the declaration made on 27
January 1947 by which the Guatemalan Government recognized as compulsory,
ipso facto and without special agreement, the jurisdiction of the Court, had
expired on 26 January 1952 FN1, and that therefore the Court no longer had
jurisdiction to hear and determine cases affecting Guatemala.
----------------------------------------------------------------------------------------------------------------FN1
This declaration had been made for a period of five years and did not
provide for its tacit renewal.
----------------------------------------------------------------------------------------------------------------
The circumstances of the case were as follows.
At the time of the filing of the Application by Liechtenstein, the
Guatemalan declaration was in force; however, it lapsed a few weeks later.
The Court consequently had to ascertain and decide—
"whether the expiry on January 26th, 1952, of the Declaration by which
Guatemala accepted the compulsory jurisdiction of the Court has had the
effect of depriving the Court of its jurisdiction to adjudicate on the'
claim stated in the Application, of which it was seised on December 17th,
1951, by the Government of Liechtenstein".
[p 188] The Court's reasoning in this connection is of particular interest
for the present case and it therefore seems to me necessary to reproduce the
essential passages here:
"The Application was filed in the Registry of the Court on December 17th,
1951. At the time of its filing, the Declarations of acceptance of the
compulsory jurisdiction of the Court by Guatemala and by Liechtenstein FN1
were both in force. Article 36 of the Statute and these Declarations
determined the law governing the Application. In accordance with these
Declarations, the Application was filed in sufficient time validly to effect
the seisin of the Court under Articles 36 and 40 of the Statute and Article
32 of the Rules." (I.C.J. Reports 1953, p. 120.)
-------------------------------------------------------------------------------------------------------FN1
Liechtenstein's declaration was dated 10 March 1950. It was for an
indefinite period, but could be "revoked" subject to one year's notice.
-------------------------------------------------------------------------------------------------------
"The seising of the Court is one thing, the administration of justice is
another... Once the Court has been regularly seised, the Court must exercise
its powers, as these are defined in the Statute. After that, the expiry of
the period fixed for one of the Declarations on which the Application was
founded is an event which is unrelated to the exercise of the powers
conferred on the Court by the Statute, which the Court must exercise
whenever it has been regularly seised..."
…………………………………………………………………………………………
"The subsequent lapse of the Declaration of Guatemala, by reason of the
expiry of the period for which it was subscribed, cannot invalidate the
Application if the latter was regular..." (I.C.J. Reports 1953, pp.
122-123.)
"An extrinsic fact such as the subsequent lapse of the Declaration, by
reason of the expiry of the period or by denunciation, cannot deprive the
Court of the jurisdiction already established." (I.C.J. Reports 1953, p.
123.)
From this reasoning the Court drew the conclusion that—
"the expiry on January 26th, 1952, of the five-year period for which the
Government of Guatemala subscribed to a Declaration accepting the
compulsory jurisdiction of the Court in accordance with Article 36,
paragraph 2, of the Statute, does not affect any jurisdiction which the
Court may have to deal with the claim presented in the Application of which
it was seised on December 17th, 1951, by the Government of the Principality
of Liechtenstein..." (I.C.J. Reports 1953, p. 124.)
Following this Judgment, which was unanimous, Judge Klaestad declared that
he had voted for the rejection of the Preliminary Objection of Guatemala on
the ground that the jurisdiction of the [p 189] Court existed at the moment
when the Application of Liechtenstein was filed. He added that the fact that
the Declaration by which Guatemala had accepted the compulsory jurisdiction
of the Court had expired some time after the filing of that Application
could have no effect as regards the Court's jurisdiction to deal with the
merits of the dispute, that jurisdiction having been definitively
established by the filing of the Application.
The Court's decision in this case is completely in accordance with the
undisputed concept of procedural law which requires that the right of action
and the jurisdiction should be established at the date of the Application.
Because of the identity of the circumstances surrounding the seisin of the
Court in the two cases, I believe that the approach which properly prevailed
in the Nottebohm case is equally valid in the present case.
For this reason it is difficult to understand how the Court can take into
account events which occurred after 1 June 1961 to arrive at the conclusion
that—
"circumstances that have since arisen render any adjudication devoid of
purpose".
***
Undoubtedly the Court neither is nor can be compelled to exercise its
jurisdiction in all cases. But the Court, which is a final tribunal for the
settlement of international disputes, may refrain from exercising its
jurisdiction only where it is clear beyond doubt that to exercise it would
impair the Court's judicial character. In the present case, however, there
is nothing to prevent the Court exercising its jurisdiction.
***
The circumstances which have occurred since 1 June 1961 are not in my view
of such a kind as to prevent the Court from dealing with the merits of the
Application of the Federal Republic of Cameroon. A brief review of these
circumstances will I hope make it possible to show that the judgment asked
of the Court by Cameroon does not lie outside its judicial function.
It is not disputed that resolution 1608 (XV) of 21 April 1961 had a final
legal effect. By virtue of that resolution the Trusteeship Agreement was
finally terminated; the United Kingdom is no longer the Administering
Authority for the Northern Cameroons; the latter has been joined to the
Federation of Nigeria; the right to seise the Court on the basis of Article
19 of the Trusteeship Agreement has disappeared. But having said this it is
necessary to consider on the one hand the proper scope of resolution 1608
and on the other the subject of Cameroon's Application.[p 190]
The resolution of 21 April 1961 settled two questions. In the first place it
endorsed the result of the plebiscite; in the second place it terminated the
Trusteeship Agreement. In both cases these are decisions taken in the
political field. The debates in the General Assembly related only to the
termination of the Trusteeship. At no time was the question of the
interpretation or application of the Trusteeship Agreement considered. On
the contrary, as the record of the discussion shows, many delegates among
those who were in favour of the resolution stated that they did not intend
to concern themselves with the question of whether the Trusteeship
,4greement had been correctly interpreted and applied by the United Kingdom,
but were speaking only on the question of the termination of the
Trusteeship. Moreover, the resolution contains no provision referring to the
way in which the United Kingdom interpreted and applied the Trusteeship
Agreement.
It is clear that this resolution, despite its subject and the nature of the
organ which adopted it, had a legal effect. But it seems to me difficult to
affirm that by that legal effect it terminated the dispute between the
Federal Republic of Cameroon and the United Kingdom.
***
The Republic of Cameroon asks the Court—
"To adjudge and declare that the United Kingdom has, in the interpretation
and application of the Trusteeship Agreement for the Territory of the
Cameroons under British administration, failed to respect certain
obligations directly or indirectly flowing from the said Agreement, and in
particular from Articles 3,5,6 and 7 thereof."
According to this submission Cameroon sought to refer a legal dispute to the
Court. The existence of this dispute is not denied by the Court. What is
requested of the Court is to appraise, from the judicial (and not the
political) standpoint, the way in which the United Kingdom administered the
Cameroons under British administration. To hear and determine such a claim
is definitely within the Court's function.
The Court should not decline to deal with the merits of the claim on the
ground that its decision might lead to conclusions contrary to the
provisions of resolution 1608 (XT.). This resolution, as has already been
said, settled a question which is quite different from the question now
before the Court. It did not and could not settle a dispute relating to the
interpretation and application of the Trusteeship Agreement.
On more that one occasion in the past the Court has stressed that its role
and that of the other organs of the United Nations were different in
character. In this connection it will suffice to cite the example [p 191] of
the Upper Silesia (Minority Schools) case. In this case, the Polish Agent
maintained that the dispute submitted to the Court by the German Government
had already been settled by the Council of the League of Nations by virtue
of the Geneva Convention and that further proceedings in the same case
should not be instituted before the Court. The Polish Agent declared:
"I am therefore entitled to consider that the matter was settled by the
Council of the League of Nations, which is the final authority as regards
measures to be taken, and that it would be dangerous to seek to establish
another procedure which might impair that which has already been followed."
The Permanent Court of International Justice did not accept this argument by
the Polish Agent. It stated:
"The situation arising from the CO-existence of these powers [those of the
Council of the League] and of the jurisdiction conferred upon the Court by
Article 72, paragraph 3, has not been defined by the Convention. But in the
absence of any special regu-lation in this respect, the Court thinks it
appropriate to recall its earlier observation, namely, that the two
jurisdictions are different in character. In any case, it is clear from the
discussions which took place before the Council that the latter did not wish
to settle the question of law raised by the German representative and a
solution to which is requested by the Application which gave rise to the
present proceedings."
Earlier, the Court had declared that "there is no dispute which States
entitled to appear before the Court cannot refer to it".
Referring to the first paragraph of Article 36 of its Statute according to
which:
"The jurisdiction of the Court comprises all cases which the Parties refer
to it and all matters specially provided for in treaties and conventions in
force",
the Court added that the principle contained in this provision only became
inoperative in those exceptional cases in which the dispute which States
might desire to refer to it would fall within the exclusive jurisdiction
reserved to some other authority.
After this reasoning the Court declared that it had jurisdiction to examine
the merits of the German claim. It thus overruled the arguments put forward
by the Polish Agent. This however was indeed a dispute in which there was a
duality of jurisdiction as between the Council and the Court and in which it
might be feared that the Court's decision would be in contradiction with the
Council's decision.
In the present case there is no such situation. The Court is not called
upon, as the General Assembly was, to decide on the termination of the
Trusteeship Agreement. Resolution 1608 (XI7) dealt [p 192] with a political
problem. The Court, the judicial organ, is requested to settle, with
authority of res judicata, the question of interpretation and application
of the Trusteeship Agreement of which it has been seised..
***
The Application of the Federal Republic of Cameroon, in order to establish
the jurisdiction of the Court, relied upon Article 19 of the Trusteeship
Agreement which reads as follows:
"Article 19. If any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to the
interpretation or application of the provisions of this Agreement, such
dispute, if it cannot be settled by negotiation or other means, shall be
submitted to the International Court of Justice, provided for in Chapter
XIV of the United Nations Charter."
This Article makes no provision for duality of jurisdiction as between the
Court and the General Assembly or another organ of the United Nations in
respect of conflicts arising from the interpretation or application of the
Trusteeship Agreement. Many means were provided for the protection of the
Trusteeship System: visiting missions, individual or collective petitions,
annual reports and discussions in the Trusteeship Council, replies to
questionnaires, debates in the General Assembly and, finally, recourse to
the Court on the basis of Article 19. If the framers of the Agreement had
intended to add another means of redress to this list, by empowering the
General Assembly, at the same time as the Court, to deal with disputes under
Article 19, they would have done so clearly and in terms. But they did not
do so and it must therefore be concluded that the disputes referred to in
that Article come within the juris-diction of the Court alone.
Moreover, it must not be forgotten, as has been stressed, that during the
debates in the General Assembly on resolution 1608 (XV) a large number of
delegates among those who were in favour of that resolution made it quite
clear that the only subject under discussion in the General Assembly was
the question of the termination of the Trusteeship and that it was no part
of the Assembly's intention to deal with the legal question of whether the
United Kingdom had administered the Northern Cameroons in accordance with
the provisions of the Trusteeship Agreement. In so doing the Assembly no
doubt considered that this question was outside the scope of its
administrative supervision and could be settled only by the Court which had
been entrusted with judicial protection.
It follows therefore that the judgment which Cameroon asks the Court to give
in a field thus reserved to its jurisdiction alone cannot [p 193] be
regarded as capable of contradicting the conclusions arrived at by the
General Assembly in its resolution 1608 (XV).
In the pleadings and during the oral arguments the distinction between the
General Assembly's role and that of the Court was developed at length by
Counsel for the Applicant. It was said in particular that—
"the distinction between the political and judicial is a major factor in
international affairs".
The Court has long recognized this truth and in the present case it should
draw the inevitable logical conclusions from it. To maintain on the one
hand that "the role of the Court is not the same as that of the General
Assembly" and on the other that "the decisions of the General Assembly would
not be reversed by the Judgment of the Court", whereas in neither case are
the same field of competence or even the same questions involved, is
difficult to understand.
by seising the Court the Federal Republic of Cameroon certainly made use of
a right which belonged to it in its capacity as a State Member of the United
Nations, but it had also another interest in doing so: its personal State
interest which is not possessed by any other Member of the United Nations.
Thus Cameroon, more than any other Member of the United Nations, was
entitled to criticize the way in which the Trusteeship for the Northern
Cameroons operated. This twofold interest could not disappear with the
termination of the Trusteeship Agreement which occurred when the machinery
of judicial protection had already been set in motion. This interest
persists without need for a claim for reparation by the Applicant.
At all stages of the proceedings Cameroon maintained that it proposed
"simply to ask the Court to state the law, and no more".
It is thus a declaratory judgment that the Applicant is seeking to obtain
from the Court. Such a judgment, as recognized by the Court itself, is
intended—
"to ensure recognition of a situation at law, once and for all and with
binding force as between the Parties; so that the legal position thus
established cannot again be called in question".
The decision asked of the Court in the present proceedings is completely in
accord with this definition. In fact, by the Trusteeship Agreement, the
United Kingdom undertook certain obligations; it undertook to administer the
Cameroons under British administration in accordance with the terms of that
Agreement. The Federal Republic of Cameroon maintains that, in respect of
the Northern Cameroons, the United Kingdom, by its conduct during
[p 194] the exercise of the Trusteeship, failed to respect the stipulations
of the 1946 Agreement, and this is denied by the Respondent. There is thus a
dispute of a legal character relating to the interpretation and application
of the Agreement. Cameroon has brought this dispute before the Court.
However important the developments which occurred after the seisin of the
Court, there persists between the Parties a legal conflict, an uncertaintg7
which the Court must resolve. The nature of the dispute is not such as to
require a material prejudice. The mere conflict of points of view
concerning the interpretation of an agreement suffices. The judgment in
such a case cannot be anything but declaratory, and examples of such
judgments are not lacking in the jurisprudence of the Permanent Court of
International Justice and this Court.
In the Polish Upper Silesia case (Judgment No. 7\, the Permanent Court made
the following statement concerning declaratory judgments :
"There are numerous clauses giving the Court compulsory jurisdiction in
questions of the interpretation and application of a treaty, and these
clauses, amongst which is included Article 23 of the Geneva Convention,
appear also to cover interpretations unconnected with concrete cases of
application FN1. Moreover, there is no lack of clauses which refer solely to
the interpretation of a treaty; for example, letter a of paragraph 2 of
Article 36 of the Court's Statute. There seems to be no reason why States
should not be able to ask the Court to give an abstract interpretation FN1
of a treaty; rather would it appear that this is one of the most important
functions which it can fulfil."
-------------------------------------------------------------------------------------------------------
FN1 Emphasis added.
-------------------------------------------------------------------------------------------------------
Further on, the Court added:
"It should also be noted that the possibility of a judgment having a purely
declaratory effect has been foreseen in Article 63 of the Statute, as well
as in Article 36 already mentioned." (P.C.I.J., Series A, No. 7, pp. 18-19.)
In this case the Court, referring to the provisions of its Statute —the same
Articles 36 and 63 that exist today—delivered a declaratory judgment
without insisting on the requirement of effective application.
Another example of a purely declaratory judgment is provided by the case
concerning the Interpretation of the Statute of the Memel Territory
(P.C.I.J., Series A/B, No. 47).
In this case the Applicant States (United Kingdom, France, Italy and Japan)
asked the Permanent Court to decide:
"(1) whether the Governor of the Memel Territory has the right to dismiss
the President of the Directorate;[p 195]
(2) in the case of an affirmative decision, whether this right only exists
under certain conditions or in certain circumstances, and what those
conditions or circumstances are;
(3) if the right to dismiss the President of the Directorate is admitted,
whether such dismissal involves the termination of the appointments of the
other members of the Directorate;
(4) if the right to dismiss the President of the Directorate only exists
under certain conditions or in certain circumstances, whether the dismissal
of M. Böttcher, carried out on February 6th, 1932, is in order in the
circumstances in which it took place
(5) whether, in the circumstances in which it took place, the appointment
of the Directorate presided over by M. Simaitis is in order;
(6) whether the dissolution of the Diet, carried out by the Governor of the
Memel Territory on March 22nd, 1932, when the Directorate presided over by
M. Simaitis had not received the confidence of the Diet, is in order."
Despite the interrogative form of the questions put, the Court none the
less, by a large majority, gave judgment on the merits of the six questions
without requiring in this case either that its judgment should be capable
of practical application.
A third example of a declaratory judgment should be cited, that of the Cofru
Channel case, decided by the present Court.
The relevant question in that case concerned violation by the United Kingdom
of Albanian sovereignty. During the oral arguments concerning this dispute
Counsel for the Albanian Government formally declared that Albania was not
asking for material reparation, rilas not claiming "any sum of money".
He concluded
"What we desire is the declaration of the Court from a legal point of
view..." (I.C.J. Reports 1949, p. 26.)
This claim was not dismissed by the Court as theoretical. On the contrary,
it unanimously gave judgment—
"that by reason of the acts of the British Navy in Albanian waters in the
course of the Operation of November 12th and 13th, 1946, the United Kingdom
violated the sovereignty of the Peoples Republic of Albania, and that this
declaration by the Court constitutes in itself appropriate satisfaction".
(I.C.J. Reports 1949, p. 36.)
The three above examples of declaratory judgments have this in common: in
each case—
the Court confined itself to stating legal truth, to finding a breach of the
law;
there was no claim for material reparation;
there was no practical application. [p 196]
It should not however be concluded that a declaratory judgment has no
practical effect. In the first place it puts a final end to the dispute with
force of res judicata; it is binding on the Parties, which can never again
raise the same question before the Court; a declaratory judgment, a mere
declaration of the law may in itself constitute appropriate satisfaction
(Corfu Channel case); finally it may provide the basis for diplomatic
negotiations.
It is in fact a judgment having the effects listed above that Cameroon asked
the Court to give, and the requirement of effective and practical
application imposed by the Court in this case is not warranted.
The function conferred by Article 38 of its Statute on the Court, the
principal judicial organ of the United Nations. is "to decide in accordance
with international law such disputes as are submitted to it". It must act in
such a way as to avoid introducing into its jurisprudence contradictory
elements. The harmony and consistency of the Court's jurisprudence are the
basic foundations for the authority of its judgments. The Court must also
avoid giving the impression, in connection with its present Judgment, of a
case of denial of justice.
For the reasons developed above, Is conclude that the claim of the Republic
of Cameroon is admissible and that the Court has jurisdiction to examine it
on the merits.
(Signed) Philémon L. B. Beb A Don. |
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