2 December 1963

 

General List No. 48

 
     

international Court of Justice

     
 

The Northern Cameroons

 
     

Cameroon

 

v. 

United Kingdom

     
     
 

Judgment

 
     
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BEFORE: President: Winiarski;
Vice-Pvesident: Alfaro;
Judges: Basdevant, Badawi, Moreno Quintana, Wellington Koo, Spiropoulos, Sir Percy Spender, Sir Gerald Fitz-
Maurice, Koretsky, Tanaka, Bustamante Y Rivero, Jessup, Morelli; Judge ad hoc: Beb a Don
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1963.12.02_northern_cameroon.htm
   
Citation: The Northern Cameroons (Cameroon v. U. K.), 1963 I.C.J. 15 (Dec. 2)
   
Represented By: Cameroon: H.E. M. Vincent de Paul Ahanda, Ambassador of the Federal Republic of Cameroon to Belgium, Luxembourg and the Netherlands, as Agent;
Mr. Paul Engo, Judge, as Assistant Agent;
assisted by
M. Prosper Weil, Professor at the Nice Faculty of Law and Economics (University of Aix-Marseille);
M. Robert Parant, Judge, Director of Judicial Affairs and of the Seal, Ministry of Justice, as Counsel;
M. El Hadji Moussa Yaya, Deputy, Vice-President of the Federal National Assembly;
M. Eloi Langoul, Conseiller referendaire of the Supreme Court of Eastern Cameroon, Principal Private Secretary to the Minister of State for Justice and Keeper of the Seals;
M. François-Xavier Tchoungui, Principal Private Secretary to the Minister for Foreign Affairs, as Advisers;
M. Charles Debbasch, Lecturer agrege at the Faculty of Law and Economics of the University of Grenoble;
M. Paul Isoart, Assistant Lecturer at the Nice Faculty of Law and Economics (University of Aix-Marseille), as Experts;

United Kingdom: Sir Francis Vallat, K.C.M.G., Q.C., Legal Adviser to the Foreign Office, as Agent;
Mr. P. J. Allott, an Assistant Legal Adviser, Foreign Office, as Assistant Agent;
assisted by
Rt. Hon. Sir John Hobson, O.B.E., T.D., Q.C., M.P., Attorney-General;
Mr. M. E. Bathurst, C.M.G., C.B.E., a member of the English Bar,
Mr. D. H. N. ,Johnson, Professor of International and Air Law in the University of London, as Counsel;
Mr. P. R. A. Mansfield, West and Central African Department,Foreign Office, as Adviser.

 
     
 
 
     
 


[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.
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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.
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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.
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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.
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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.
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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.
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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).
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(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.
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(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.
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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.
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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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