18 July 1966

 

General List No. Nos. 46 & 47

 
     

international Court of Justice

     
 

South West Africa

 
     

Ethiopia v. South Africa

 

 

Liberia v. South Africa

     
     
 

Judgment

 
     
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BEFORE:

President: Sir Percy Spender;
Vice-President: Wellington Koo;
Judges: Winiarski, Spiropoulos, Sir Gerald Fitzmaurice, Koretsky, Tanaka, Jessup, Morelli, Padilla Nervo, Forster, Gros;
Judges ad hoc: Sir Louis Mbanefo, van Wyk
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1966.07.18_south_west_africa.htm 
   
Citation: South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 I.C.J. 6 (July 18)
   
Represented By: Ethiopia: H.E. Dr. Tesfaye Gebre-Egzy;
Hon. Ernest A. Gross, Member of the New York Bar, as Agents;
assisted by
Hon. Edward R. Moore, Under-Secretary of State of Liberia, Mr. Keith Highet, Member of the New York Bar, Mr. Frank G. Dawson, Member of the New York Bar, Mr. Richard A. Falk, Professor of International Law, Princeton University and Member of the New York Bar;
Mr. Arthur W. Rovine, Member of the Bar of the District of Columbia,
as Counsel;
Mr. Neville N. Rubin, Lecturer in African Law at the School of Oriental and African Studies of the University of London and Advocate of the Supreme Court of South Africa, as Adviser;

Liberia: H.E. Mr. Nathan Barnes, Hon. Ernest A. Gross, as Agents;
Hon. Edward R. Moore, as Agent and Counsel;
assisted by
Mr. Keith Highet;
Mr. Frank G. Dawson;
Mr. Richard A. Falk;
Mr. Arthur W. Rovine, as Counsel;
Mr. Neville N. Rubin, as Adviser;

South Africa: Dr. J. P. verLoren van Themaat, S.C., Professor of International Law at the University of South Africa and Consultant to the Department of Foreign Affairs;
Mr. R. G. McGregor, Deputy Chief State Attorney, as Agents;
Mr. R. F. Botha, Department of Foreign Affairs and Advocate of the Supreme Court of South Africa, as Agent and Adviser;
assisted by
Mr. D. P. de Villiers, S.C., Member of the South African Bar;
Mr. G. van R. Muller, S.C., Member of the South African Bar;
Dr. P. J. Rabie, S.C., Member of the South African Bar;
Mr. E. M. Grosskopf, Member of the South African Bar;
Dr. H. J. O. van Heerden, Member of the South African Bar;
Mr. A. S. Botha, Member of the South African Bar;
Mr. P. R. van Rooyen, Member of the South African Bar, as Counsel; Mr. H. J. Allen, Department of Bantu Administration and Development;
Mr. H. Heese, Department of Foreign Affairs and Advocate of the Supreme Court of South Africa, as Advisers.

 
     
 
 
     
 


[p.6]

The Court,

composed as above,

delivers the following Judgment:

By its Judgment of 21 December 1962, the Court rejected the four preliminary objections raised by the Government of South Africa and found that it had jurisdiction to adjudicate upon the merits of the dispute submitted to it on 4 November 1960 by the Applications of the Governments of Ethiopia and Liberia. Time-limits for the filing of the further pleadings on the merits were fixed or, at the request of the Parties, extended, by Orders of 5 February 1963, 18 September 1963, 20 January 1964 and 20 October 1964; and the second [p 9] phase of the cases became ready for hearing on 23 December 1964, when the Rejoinder of the Government of South Africa was filed.

Pursuant to Article 31, paragraph 3, of the Statute, and the Order of the Court of 20 May 1961, the Governments of Ethiopia and Liberia, acting in concert, chose Sir Louis Mbanefo, Chief Justice of the Eastern Region of Nigeria, to sit as Judge ad hoc. In accordance with the same Article, the Government of South Africa chose the Honourable J. T. van Wyk, Judge of the Appellate Division of the Supreme Court of South Africa, to sit as Judge ad hoc. Both judges had sat in the first phase of the proceedings.

On 14 March 1965, the Government of South Africa notified the Court of its intention to make an application to the Court relating to the composition of the Court for the purposes of these cases. The said notification was duly communicated to the Agents for the Applicants. The Court heard the contentions of the Parties with regard to the application at closed hearings held on 15 and 16 March 1965 and decided not to accede to the application. This decision was embodied in an Order of 18 March 1965.

Public sittings of the Court were held during the periods 15 March to 14 July and 20 September to 29 November 1965.

During these public sittings the Court heard the oral arguments and replies to H.E. Mr. Nathan Barnes, Hon. Ernest A. Gross, Agents, and Hon. Edward R. Moore, Agent and Counsel, on behalf of the Governments of Ethiopia and Liberia and of Dr. J. P. verLoren van Themaat, S.C., Mr. R. F. Botha, Agents, Mr. D. P. de Villiers, S.C., Mr. E. M. Grosskopf, Mr. G. van R. Muller, S.C., Mr. P. R. van Rooyen, Dr. H. J. O. van Heerden and Dr. P. J. Rabie, S.C., Counsel, on behalf of the Government of South Africa.

At the hearings from 27 April to 4 May 1965, the Court heard the views of the Parties on a proposal made by counsel for South Africa at the hearing on 30 March 1965 to the effect that the Court should carry out an inspection in loco in the Territory of South West Africa and also that the Court should visit South Africa, Ethiopia and Liberia, and one or two countries of the Court's own choosing south of the Sahara. At the hearing on 24 May 1965 the President announced that this request would not be deliberated on by the Court until after all the evidence had been called and the addresses of the Parties concluded. At the public sitting on 29 November 1965 the President announced that the Court had decided not to accede to this request. This decision was embodied in an Order of the same date.

At the hearing on 14 May 1965, the President announced that the Court was unable to accede to a proposal made on behalf of Ethiopia and Liberia that the Court should decide that South Africa, in lieu of calling witnesses or experts to testify personally, should embody the evidence in depositions or written statements. In the view of the Court, the Statute and Rules of Court contemplated a right in a party to produce evidence by calling witnesses and experts, and it must be left to exercise the right as it saw fit, subject to the provisions of the Statute and Rules of Court.

At the hearings from 18 June to 14 July and from 20 September to 21 October 1965, the Court heard the evidence of the witnesses and experts called by the Government of South Africa in reply to questions put to them in examination, cross-examination and re-examination on behalf of the Parties, and by Members of the Court. The following persons gave evidence: Dr. W. W. M. Eiselen, Commissioner-General for the Northern Sotho; Professor E. van den Haag, Professor of Social Philosophy at New York University; Professor J. P. van S. Bruwer, Professor of Social and Cultural Anthropology at the University [p 10] of Port Elizabeth; Professor R. F. Logan, Professor of Geography at the University of California, Los Angeles; Mr. P. J. Cillie, Editor of Die Burger, Cape Town; The Rev. J. S. Gericke, Vice-Chairman of the Synod of the Dutch Reformed Church of South Africa and Vice-Chancellor of the University of Stellenbosch; Professor D. C. Krogh, Head of the Department of Economics, University of South Africa; Mr. L. A. Pepler, Director of Bantu Development in South Africa; Dr. H. J. van Zyl, Deputy Secretary, Department of Bantu Education; Dr. C. H. Rautenbach, Rector of the University of Pretoria; Mr. K. Dahlmann, Editor of the Allgemeine Zeitung, Windhoek; Brigadier-General S. L. A. Marshall, Chief Historian of the United States Army in various theatres; Professor C. A. W. Manning, formerly Professor of International Relations, University of London; Professor S. T. Possony, Director of International Political Studies Programme, Hoover Institute, Stanford University.

In the course of the written proceedings, the following Submissions were presented by the Parties:

On behalf of the Governments of Ethiopia and Liberia,

in the Applications:

"Wherefore, may it please the Court, to adjudge and declare, whether the Government of the Union of South Africa is present or absent and after such time limitations as the Court may see fit to fix, that:

A. South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by His Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on December 17, 1920; and that the aforesaid Mandate is a treaty in force, within the meaning of Article 37 of the Statute of the International Court of Justice.

B. The Union of South Africa remains subject to the international obligations set forth in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa, and that the General Assembly of the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations with regard to the administration of the Territory; and that the Union is under an obligation to submit to the supervision and control of the General Assembly with regard to the exercise of the Mandate.

C. The Union of South Africa remains subject to the obligations to transmit to the United Nations petitions from the inhabitants of the Territory, as well as to submit an annual report to the satisfaction of the United Nations in accordance with Article 6 of the Mandate.

D. The Union has substantially modified the terms of the Mandate without the consent of the United Nations; that such modification is a violation of Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate.

E. The Union has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; its failure to do so is a violation of Article 2 of the Mandate and Article 22 [p 11] of the Covenant; and that the Union has the duty forthwith to take all practicable action to fulfil its duties under such Articles.

F. The Union, in administering the Territory, has practised apartheid, i.e. has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory.

G. The Union, in administering the Territory, has adopted and applied legislation, regulations, proclamations, and administrative decrees which are by their terms and in their application, arbitrary, unreasonable, unjust and detrimental to human dignity; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to repeal and not to apply such legislation, regulations, proclamations, and administrative decrees.

H. The Union has adopted and applied legislation, administrative regulations, and officia1 actions which suppress the rights and liberties of inhabitants of the Territory essential to their orderly evolution toward self-government, the right to which is implicit in the Covenant of the League of Nations, the terms of the Mandate, and currently accepted international standards, as embodied in the Charter of the United Nations and the Declaration of Human Rights; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease and desist from any action which thwarts the orderly development of self government in the Territory.

I. The Union has exercised powers of administration and legislation over the Territory inconsistent with the international status of the Territory; that the foregoing action by the Union is in violation of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty to refrain from acts of administration and legislation which are inconsistent with the international status of the Territory.

J. The Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the Mandate; that such failure is a violation of Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly.

K. The Union has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of the League of Nations rules; and that the Union has the duty to transmit such petitions to the General Assembly.

The Applicant reserves the right to request the Court to declare and adjudge with respect to such other and further matters as the Applicant may deem appropriate to present to the Court.

May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Application, and to make all necessary[p 12] awards and orders, including an award of costs, to effectuate its determinations";

in the Memorials:

"Upon the basis of the foregoing allegations of fact, supplemented by such facts as may be adduced in further testimony before this Court, and the foregoing statements of law, supplemented by such other statements of law as may be hereinafter made, may it please the Court to adjudge and declare, whether the Government of the Union of South Africa is present or absent, that:

1. South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by his Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on December 17, 1920;

2. the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted;


3. the Union, in the respects set forth in Chapter V of this Memorial and summarized in Paragraphs 189 and 190 thereof, has practised apartheid, Le., has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory;

4. the Union, by virtue of the economic, political, social and educational policies applied within the Territory, which are described in detail in Chapter V of this Memorial and summarized at Paragraph 190 thereof, has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles;


5. the Union, by word and by action, in the respects set forth in Chapter VIII of this Memorial, has treated the Territory in a manner in consistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory; that such treatment is in violation of the Union's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to cease the actions summarized in Section C of Chapter VIII herein, and to refrain from similar actions in the future; and that the Union has the duty to accord full faith and respect to the international status of the Territory;

6. [p 13] the Union, by virtue of the acts described in Chapter VII herein, has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to remove all such military bases from within the Territory; and that the Union has the duty to refrain from the establishment of military bases within the Territory;

7.the Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the mandate; that such failure is a violation of its obligations as stated in Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly;

8.the Union has failed to transmit to the General Assembly of the United Nations petitions from the territory's inhabitants addressed to the General Assembly; that such failure is a violation of its obligations as Mandatory; and that the Union has the duty to transmit such petitions to the General Assembly;

9.the Union, by virtue of the acts described in Chapters V, VI, VII and VIII of this Memorial coupled with its intent as recounted herein, has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition precedent to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate.

The Applicant reserves the right to request the Court to declare and adjudge in respect to events which may occur subsequent to the date this Memorial is filed, including any event by which the Union's juridical and constitutional relationship to Her Britannic Majesty undergoes any substantial modification.

May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Memorial, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations";

in the Reply:

"Upon the basis of the allegations of fact in the Memorials, supplemented by those set forth herein or which may subsequently be adduced before this Honourable Court, and the statements of law pertaining thereto, as set forth in the Memorials and in this Reply, or by such other statements as hereafter may be made, Applicants respectfully reiterate their prayer that the Court adjudge and declare in accordance with, and on the basis of, the Submissions set forth in the Memorials, which Submissions are hereby reaffirmed and incorporated by reference herein.

Applicants further reserve the right to request the Court to declare and adjudge in respect of events which may occur subsequent to the date of filing of this Reply.

Applicants further reiterate and reaffirm their prayer that it may please the Court to adjudge and declare whatever else it may deem fit and proper in regard to the Memorials or to this Reply, and to make all necessary [p 14]awards and orders, including an award of costs, to effectuate its deter-minations."

On behalf of the Government of South Africa,

in the Counter-Memorial:

"Upon the basis of the statements of fact and law as set forth in the several Volumes of this Counter-Memorial, may it please the Court to adjudge and declare that the Submissions of the Governments of Ethiopia and Liberia as recorded at pages 168 to 169 of their Memorials are un-founded and that no declaration be made as claimed by them.

In particular Respondent submits:

1. That the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations, and that Respondent is, in consequence thereof, no longer subject to any legal obligations thereunder.

2. In the alternative to (1) above, and in the event of it being held that the Mandate as such continued in existence despite the dissolution of the League of Nations:


(a) Relative to Applicants' Submissions Nos. 2, 7 and 8,
that Respondent's former obligations under the Mandate to report and account to, and to submit to the supervision of, the Council of the League of Nations, lapsed upon the dissolution of the League, and have not been replaced by any similar obligations relative to supervision by any organ of the United Nations or any other organization or body. Respondent is therefore under no obligation to submit reports concerning its administration of South West Africa, or to transmit petitions from the inhabitants of that Territory, to the United Nations or any other body;

(b)Relative to Applicants' Submissions Nos. 3, 4, 5, 6 and 9,
that Respondent has not, in any of the respects alleged, violated its obligations as stated in the Mandate or in Article 22 of the Covenant of the League of Nations";

in the Rejoinder:

"1. Upon the basis of the statements of law and fact set forth in the Counter-Memorial, as supplemented in this Rejoinder and as may hereafter be adduced in further proceedings, Respondent reaffirms the Submissions made in the Counter-Memorial and respectfully asks that such Submissions be regarded as incorporated herein by reference.

3. Respondent further repeats its prayer that it may please the Court to adjudge and declare that the Submissions of the Governments of Ethiopia and Liberia, as recorded in the Memorials and as reaffirmed in the Reply, are unfounded, and that no declaration be made as claimed by them."

In the oral proceedings the following Submissions were presented by the Parties :

On behalf of the Governments of Ethiopia and Liberia,

at the hearing on 19 May 1965: [p 15]

"Upon the basis of allegations of fact, and statements of law set forth in the written pleadings and oral proceedings herein, may it please the Court to adjudge and declare, whether the Government of the Republic of South Africa is present or absent, that:

(1) South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by His Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on 17 December 1920;

(2) Respondent continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted;

(3) Respondent, by laws and regulations, and official methods and measures, which are set out in the pleadings herein, has practised apartheid, i.e., has distinguished as to race, colour, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that Respondent has the duty forthwith to cease the practice of apartheid in the Territory;

(4) Respondent, by virtue of economic, political, social and educational policies applied within the Territory, by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein, has, in the light of applicable international standards or international legal norm, or both, failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant; and that Respondent has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties under such Articles;

(5) Respondent, by word and by action, has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory: that such treatment is in violation of Respondent's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forth with to cease such actions, and to refrain from similar actions in the future; and that Respondent has the duty to accord full faith and respect to the international status of the Territory;

(6) Respondent has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forthwith to remove all such military bases from within the Territory; and that Respondent has the duty to refrain from the establishment of military bases within the Territory; [p 16]

(7) Respondent has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the Mandate; that such failure is a violation of its obligations as stated in Article 6 of the Mandate; and that Respondent has the duty forthwith to render such annual reports to the General Assembly;

(8) Respondent has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of its obligations as Mandatory; and that Respondent has the duty to transmit such petitions to the General Assembly;

(9) Respondent has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article22 of the Covenant; and that the consent of the United Nations is a neces-sary prerequisite and condition precedent to attempts on the part of Respondent directly or indirectly to modify the terms of the Mandate.

May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to these submissions, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations."

On behalf of the Government of South Africa,

at the hearing on 5 November 1965:

"We repeat and re-affirm Our submissions, as set forth in Volume 1, page 6, of the Counter-Memorial and confirmed in Volume II, page 483, of the Rejoinder. These submissions can be brought up-to-date without any amendments of substance and then they read as follows:

Upon the basis of the statements of fact and law as set forth in Respondent's pleadings and the oral proceedings, may it please the Court to adjudge and declare that the submissions of the Governments of Ethiopia and Liberia, as recorded at pages 69-72 of the verbatim record of 19 May 1965, C.R. 65/35, are unfounded and that no declaration be made as claimed by them.

In particular, Respondent submits—

(1) That the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations and that Respondent is, in consequence thereof, no longer subject to any legal obligations thereunder.

(2) In the alternative to (1) above, and in the event of it being held that the Mandate as such continued in existence despite the dissolution of the League of Nations:

(a) Relative to Applicants' submissions numbers 2, 7 and 8,

that the Respondent's former obligations under the Mandate to report and account to, and to submit to the supervision, of the Council of the League of Nations, lapsed upon the dissolution of the League, and have not been replaced by any similar obligations relative to supervision by any organ of the United Nations or any other organization or body. Respondent is therefore under no obligation to submit [p 17] reports concerning its administration of South West Africa, or to transmit petitions from the inhabitants of that Territory, to the United Nations or any other body;

(b) Relative to Applicants' submissions numbers 3, 4, 5, 6 and 9, that the Respondent has not, in any of the respects alleged, violated its obligations as stated in the Mandate or in Article 22 of the Covenant of the League of Nations."

***

1. In the present proceedings the two applicant States, the Empire of Ethiopia and the Republic of Liberia (whose cases are identical and will for present purposes be treated as one case), acting in the capacity of States which were members of the former League of Nations, put forward various allegations of contraventions of the League of Nations Mandate for South West Africa, said to have been committed by the respondent State, the Republic of South Africa, as the administering authority.

2. In an earlier phase of the case, which took place before the Court in1962, four preliminary objections were advanced, based on Article 37of the Court's Statute and the jurisdictional clause (Article 7, paragraph 2) of the Mandate for South West Africa, which were all of them argued by the Respondent and treated by the Court as objections to its jurisdiction. The Court, by its Judgment of 21 December 1962, rejected each of these objections, and thereupon found that it had "jurisdiction to adjudicate upon the merits of the dispute".
3. In the course of the proceedings on the merits, comprising the exchange of written pleadings, the oral arguments of the Parties and the hearing of a considerable number of witnesses, the Parties put forward various contentions on such matters as whether the Mandate for South West Africa was still in force,—and if so, whether the Mandatory's obligation under Article 6 of the Mandate to furnish annual reports to the Council of the former League of Nations concerning its administration of the mandated territory had become transformed by one means or another into an obligation to furnish such reports to the General Assembly of the United Nations, or had, on the other hand, lapsed entirely;—whether there had been any contravention by the Respondent of the second paragraph of Article 2 of the Mandate which required the Mandatory to "promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory”,—whether there had been any contravention of Article 4 of the Mandate, prohibiting (except for police and local defence purposes)the "military training of the natives", and forbidding the establishment of military or naval bases, or the erection of fortifications in the territory. The Applicants also alleged that the Respondent had contravened paragraph 1 of Article 7 of the Mandate (which provides that the Mandate can only be modified with the consent of the Council of the League [p 18] of Nations) by attempting to modify the Mandate without the consent of the General Assembly of the United Nations which, so it was contended, had replaced the Council of the League for this and other pur-poses. There were other allegations also, which it is not necessary to set out here.

4. On all these matters, the Court has studied the written pleadings and oral arguments of the Parties, and has also given consideration to the question of the order in which the various issues would fall to be dealt with. In this connection, there was one matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicants' standing in the present phase of the proceedings,—not, that is to say, of their standing before the Court itself, which was the subject of the Court's decision in 1962, but the question, as a matter of the merits of the case, of their legal right or interest regarding the subject-matter of their claim, as set out in their final submissions.

5. Despite the antecedent character of this question, the Court was unable to go into it until the Parties had presented their arguments on the other questions of merits involved. The same instruments are relevant to the existence and character of the Respondent's obligations concerning the Mandate as are also relevant to the existence and character of the Applicants' legal right or interest in that regard. Certain humanitarian principles alleged to affect the nature of the Mandatory's obligations in respect of the inhabitants of the mandated territory were also pleaded as a foundation for the right of the Applicants to claim in their own individual capacities the performance of those same obligations. The implications of Article 7, paragraph 1, of the Mandate, referred to above, require to be considered not only in connection with paragraph (9)and certain aspects of paragraph (2) of the Applicants' final submissions, but also, as will be seen in due course, in connection with that of the Applicants' standing relative to the merits of the case. The question of the position following upon the dissolution of the League of Nations in 1946 has the same kind of double aspect, and so do other matters.

6. The Parties having dealt with all the elements involved, it became the Court's duty to begin by considering those questions which had such a character that a decision respecting any of them might render unnecessary an enquiry into other aspects of the matter. There are two questions in the present case which have this character. One is whether the Mandate still subsists at all, as the Applicants maintain that it does in paragraph (1) of their final submissions; for if it does not, then clearly the various allegations of contraventions of the Mandate by the Respondent fall automatically to the ground. But this contention, namely as to the continued subsistence of the Mandate, is itself part of the Applicants' whole claim as put forward in their final submissions, being so put forward solely in connection with the remaining parts of the claim, and as the necessary foundation for these. For this reason the other question, which (as already mentioned) is that of the Appli-[p 19] cants' legal right or interest in the subject-matter of their claim, is even more fundamental.

*

7. It is accordingly to this last question that the Court must now turn. Before doing so however, it should be made clear that when, in the present Judgment, the Court considers what provisions of the Mandate for South West Africa involve a legal right or interest for the Applicants, and what not, it does so without pronouncing upon, and wholly without prejudice to, the question of whether that Mandate is still in force. The Court moreover thinks it necessary to state that its 1962 decision on the question of competence was equally given without prejudice to that of the survival of the Mandate, which is a question appertaining to the merits of the case. It was not in issue in 1962, except in the sense that survival had to be assumed for the purpose of determining the purely jurisdictional issue which was all that was then before the Court. It was made clear in the course of the 1962 proceedings that it was upon this assumption that the Respondent was arguing the jurisdictional issue; and the same view is reflected in the Applicants' final submissions (1) and (2) in the present proceedings, the effect of which is to ask the Court to declare (inter alia) that the Mandate still subsists, and that the Respondent is still subject to the obligations it provides for. It is, correspondingly, a principal part of the Respondent's case on the merits that since (as it contends) the Mandate no longer exists, the Respondent has no obligations under it, and therefore cannot be in breach of the Mandate. This is a matter which, for reasons to be given later in another connection, but equally applicable here, could not have been the subject of any final determination by a decision on a purely preliminary point of jurisdiction.

8. The Respondent's final submissions in the present proceedings ask simply for a rejection of those of the Applicants, both generally and in detail. But quite apart from the recognized right of the Court, implicit in paragraph 2 of Article 53 of its Statute, to select proprio motu the basis of its decision, the Respondent did in the present phase of the case, particularly in its written pleadings, deny that the Applicants had any legal right or interest in the subject-matter of their claim,—a denial which, at this stage of the case, clearly cannot have been intended merely as an argument against the applicability of the jurisdictional clause of the Mandate. In its final submissions the Respondent asks the Court, upon the basis, inter alia, of "the statements of fact and law as set forth in [its] pleadings and the oral proceedings", to make no declaration as claimed by the Applicants in their final submissions.

***

9. The Court now comes to the basis of its decision in the present proceedings. In order to lead up to this, something must first be said about the structure characterizing the Mandate for South West Africa, [p 20] in common with the other various mandates; and here it is necessary to stress that no true appreciation of the legal situation regarding any particular mandate, such as that for South West Africa, can be arrived at unless it is borne in mind that this Mandate was only one amongst a number of mandates, the Respondent only one amongst a number of mandatories, and that the salient features of the mandates system as a whole were, with exceptions to be noted where material, applicable indifferently to all the mandates. The Mandate for South West Africa was not a special case.
*

10. The mandates system, as is well known, was formally instituted by Article 22 of the Covenant of the League of Nations. As there indicated, there were to be three categories of mandates, designated as 'A', 'B' and 'C' mandates respectively, the Mandate for South West Africa being one of the 'C' category. The differences between these categories lay in the nature and geographical situation of the territories concerned, the state of development of their peoples, and the powers accordingly to be vested in the administering authority, or mandatory, for each territory placed under mandate. But although it was by Article 22 of the League Covenant that the system as such was established, the precise terms of each mandate, covering the rights and obligations of the mandatory, of the League and its organs, and of the individual members of the League, in relation to each mandated territory, were set out in separate instruments of mandate which, with one exception to be noted later, took the form of resolutions of the Council of the League.

11. These instruments, whatever the differences between certain of their terms, had various features in common as regards their structure. For present purposes, their substantive provisions may be regarded as falling into two main categories. On the one hand, and of course as the principal element of each instrument, there were the articles defining the mandatory's powers, and its obligations in respect of the inhabitants of the territory and towards the League and its organs. These provisions, relating to the carrying out of the mandates as mandates, will hereinafter be referred to as "conduct of the mandate7', or simply "conduct" provisions. On the other hand, there were articles conferring in different degrees, according to the particular mandate or category of mandate, certain rights relative to the mandated territory, directly upon the members of the League as individual States, or in favour of their nationals. Many of these rights were of the same kind as are to be found in certain provisions of ordinary treaties of commerce, establishment and navigation concluded between States. Rights of this kind will hereinafter be referred to as "special interests" rights, embodied in the "special interests" provisions of the mandates. As regards the 'A' and 'B' mandates (particularly the latter) these rights were numerous and figured prominently—a fact which, as will be seen later, is significant for the case of the 'C' mandates also, even though, in the latter case, [p 21] they were confined to provisions for freedom for missionaries ("nationals of any State Member of the League of Nations") to "enter into, travel and reside in the territory for the purpose of prosecuting their calling”— (Mandate for South West Africa, Article 5). In the present case, the dispute between the Parties relates exclusively to the former of these two categories of provisions, and not to the latter.

12. The broad distinction just noticed was a genuine, indeed an obvious one. Even if it may be the case that certain provisions of some of the mandates (such as for instance the "open door" provisions of the 'A' and 'B' mandates) can be regarded as having a double aspect, this does not affect the validity or relevance of the distinction. Such provisions would, in their "conduct of the mandate" aspect, fall under that head; and in their aspect of affording commercial opportunities for members of the League and their nationals, they would come under the head of "special interests" clauses. It is natural that commercial provisions of this kind could redound to the benefit of a mandated territory and its inhabitants in so far as the use made of them by States members of the League had the effect of promoting the economic or industrial development of the territory. In that sense and to that extent these provisions could no doubt contribute to furthering the aims of the mandate; and their due implementation by the mandatories was in consequence a matter of concern to the League and its appropriate organs dealing with mandates questions. But this was incidental, and was never their primary object. Their primary object was to benefit the individual members of the League and their nationals. Any action or intervention on the part of member States in this regard would be for that purpose—not in furtherance of the mandate as such.

13. In addition to the classes of provisions so far noticed, every instrument of mandate contained a jurisdictional clause which, with a single exception to be noticed in due course, was in identical terms for each mandate, whether belonging to the 'A', 'B' or 'C' category. The language and effect of this clause will be considered later; but it provided for a reference of disputes to the Permanent Court of International Justice and, so the Court found in the first phase of the case, as already mentioned, this reference was now, by virtue of Article 37 of the Court's Statute, to be construed as a reference to the present Court. Another feature of the mandates generally, was a provision according to which their terms could not be modified without the consent of the Council of the League. A further element, though peculiar to the 'C' mandates, may be noted: it was provided both by Article 22 of the Covenant of the League and by a provision of the instruments of 'C' mandates that, subject to certain conditions not here material, a 'C' mandatory was to administer the mandated territory "as an integral portion of its own territory".

*[p 22]

14. Having regard to the situation thus outlined, and in particular to the distinction to be drawn between the "conduct" and the "special interests" provisions of the various instruments of mandate, the question which now arises for decision by the Court is whether any legal right or interest exists for the Applicants relative to the Mandate, apart from such as they may have in respect of the latter category of provisions;—a matter on which the Court expresses no opinion, since this category is not in issue in the present case. In respect of the former category—the "conduct" provisions—the question which has to be decided is whether, according to the scheme of the mandates and of the mandates system as a whole, any legal right or interest (which is a different thing from a political interest) was vested in the members of the League of Nations, including the present Applicants, individually and each in its own separate right to call for the carrying out of the mandates as regards their "conduct" clauses;—or whether this function must, rather, be regarded as having appertained exclusively to the League itself, and not to each and every member State, separately and independently. In other words, the question is whether the various mandatories had any direct obligation towards the other members of the League individually, as regards the carrying out of the "conduct" provisions of the mandates.

15. If the answer to be given to this question should have the effect that the Applicants cannot be regarded as possessing the legal right or interest claimed, it would follow that even if the various allegations of contraventions of the Mandate for South West Africa on the part of the Respondent were established, the Applicants would still not be entitled to the pronouncements and declarations which, in their final submissions, they ask the Court to make. This is no less true in respect of their final submissions (1) and (2) than of the others. In these two submissions, the Applicants in substance affirm, and ask the Court to declare, the continued existence of the Mandate and of the Respondent's obligations thereunder. In the present proceedings however, the Court is concerned with the final submissions of the Applicants solely in the context of the "conduct" provisions of the Mandate. It has not to pronounce upon any of the Applicants' final submissions as these might relate to any question of "special interests" if a claim in respect of these had been made. The object of the Applicants' submissions (1) and (2) is to provide the basis for their remaining submissions, which are made exclusively in the context of a claim about provisions concerning which the question immediately arises whether they are provisions in respect of which the Applicants have any legal right or interest. If the Court finds that the Applicants do have such a right or interest, it would then be called upon to pronounce upon the first of the Applicants' final submissions—(continued existence of the Mandate), since if that one should be rejected, the rest would automatically fall to the ground. If on the other hand the Court should find that such a right or interest does not exist, it would obviously be inappropriate and misplaced to make any pronouncement on this first submission of the Applicants, or [p 23] on the second, since in the context of the present case the question of the continued existence of the Mandate, and of the Respondent's obligations thereunder, would arise solely in connection with provisions concerning which the Court had found that the Applicants lacked any legal right or interest.

***

16. It is in their capacity as former members of the League of Nations that the Applicants appear before the Court; and the rights they claim are those that the members of the League are said to have been invested with in the time of the League. Accordingly, in order to determine what the rights and obligations of the Parties relative to the Mandate were and are (supposing it still to be in force, but without prejudice to that question); and in particular whether (as regards the Applicants)these include any right individually to call for the due execution of the"conduct" provisions, and (for the Respondent) an obligation to be answerable to the Applicants in respect of its administration of the Mandate, the Court must place itself at the point in time when the mandates system was being instituted, and when the instruments of mandate were being framed. The Court must have regard to the situation as it was at that time, which was the critical one, and to the intentions of those concerned as they appear to have existed, or are reasonably to be inferred, in the light of that situation. Intentions that might have been formed if the Mandate had been framed at a much later date, and in the knowledge of circumstances, such as the eventual dissolution of the League and its aftermath, that could never originally have been foreseen, are not relevant. Only on this basis can a correct appreciation of the legal rights of the Parties be arrived at. This view is supported by a previous finding of the Court (Rights of United States Nationals in Morocco, I.C.J. Reports 1952, at p. 189), the effect -of which is that the meaning of a juridical notion in a historical context, must be sought by reference to the way in which that notion was understood in that context.

17. It follows that any enquiry into the rights and obligations of the Parties in the present case must proceed principally on the basis of considering, in the setting of their period, the texts of the instruments and particular provisions intended to give juridical expression to the notion of the "sacred trust of civilization" by instituting a mandates system.

18. The enquiry must pay no less attention to the juridical character and structure of the institution, the League of Nations, within the framework of which the mandates system was organized, and which inevitably determined how this system was to operate,—by what methods,—through what channels,—and by means of what recourses. One fundamental element of this juridical character and structure, which in a sense governed everything else, was that Article 2 of the Covenant provided that the "action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, [p 24] with a permanent Secretariat". If the action of the League as a whole was thus governed, it followed naturally that the individual member States could not themselves act differently relative to League matters, unless it was otherwise specially so provided by some article of the Covenant.

*
19. As is well known, the mandates system originated in the decision taken at the Peace Conference following upon the world war of 1914-1918, that the colonial territories over which, by Article 119 of the Treaty of Versailles, Germany renounced "au her rights and titles" in favour of the then Principal Allied and Associated Powers, should not be annexed by those Powers or by any country affiliated to them, but should be placed under an international régime, in the application to the peoples of those territories, deemed "not yet able to stand by themselves", of the principle, declared by Article 22 of the League Covenant, that their "well-being and development" should form "a sacred trust of civilisation".

20. The type of régime specified by Article 22 of the Covenant as constituting the "best method of giving practical effect to this principle" was that "the tutelage of such peoples should be entrusted to advanced nations ... who are willing to accept it7',—and here it was specifically added that it was to be "on behalf of the League" that "this tutelage should be exercised by those nations as Mandatories". It was not provided that the mandates should, either additionally or in the alternative, be exercised on behalf of the members of the League in their individual capacities. The mandatories were to be the agents of, or trustees for the League,—and not of, or for, each and every member of it individually

21. The same basic idea was expressed again in the third paragraph of the preamble to the instrument of mandate for South West Africa, where it was recited that the Mandatory, in agreeing to accept the Mandate, had undertaken "to exercise it on behalf of the League of Nations". No other behalf was specified in which the Mandatory had undertaken, either actually or potentially, to exercise the Mandate. The effect of this recital, as the Court sees it, was to register an implied recognition (a) on the part of the Mandatory of the right of the League, acting as an entity through its appropriate organs, to require the due execution of the Mandate in respect of its "conduct" provisions; and(b) on the part of both the Mandatory and the Council of the League, of the character of the Mandate as a juridical régime set within the framework of the League as an institution. There was no similar recognition of any right as being additionally and independently vested in any other entity, such as a State, or as existing outside or independently of the League as an institution; nor was any undertaking at all given by the Mandatory in that regard.

22. It was provided by paragraph 1 of Article 22 of the Covenant that ”securities for the performance" of the sacred trust were to be "embodied [p 25] in this Covenant". This important reference to the “performance" of the trust contemplated, as it said, securities to be afforded by the Covenant itself. By paragraphs 7 and 9 respectively of Article 22, every mandatory was to "render to the Council [of the League—not to any other entity] an annual report in reference to the territory committed to its charge"; and a permanent commission, which came to be known as the Permanent Mandates Commission, was to be constituted "to receive and examine" these annual reports and "to advise the Council on all matters relating to the observance of the mandates". The Permanent Mandates Commission alone had this advisory role, just as the Council alone had the supervisory function. The Commission consisted of independent experts in their own right, appointed in their personal capacity as such, not as representing any individual member of the League or the member States generally.

23. The obligation to furnish annual reports was reproduced in the instruments of mandate themselves, where it was stated that they were to be rendered "to the satisfaction of the Council". Neither by the Covenant nor by the instruments of mandate, was any role reserved to individual League members in respect of these reports, furnishable to the Council, and referred by it to the Permanent Mandates Commission. It was the Council that had to be satisfied, not the individual League members. The part played by the latter, other than such as were members of the Council, was exclusively through their participation in the work of the Assembly of the League when, acting under Article 3 of the Covenant, that organ exercised in respect of mandates questions its power to deal with "any matter within the sphere of action of the League". It was as being within the sphere of the League as an institution that mandates questions were dealt with by its Assembly.

24. These then were the methods, and the only methods, contemplated by the Covenant as "securities" for the performance of the sacred trust, and it was in the Covenant that they were to be embodied. No security taking the form of a right for every member of the League separately and individually to require from the mandatories the due performance of their mandates, or creating a liability for each mandatory to be answerable to them individually,—still less conferring a right of recourse to the Court in these regards,—was provided by the Covenant.

*

25. This result is precisely what was to be expected from the fact that the mandates system was an activity of the League of Nations, that is to Say of an entity functioning as an institution. In such a setting, rights cannot be derived from the mere fact of membership of the organization in itself: the rights that member States can legitimately claim must be derived from and depend on the particular terms of the instrument constitutive of the organization, and of the other instruments relevant [p 26] in the context. This principle is necessarily applicable as regards the question of what rights member States can claim in respect of a régime such as results from the mandates system, functioning within the framework of the organization. For this reason, and in this setting, there could, as regards the carrying out of the "conduct" provisions of the various mandates, be no question of any legal tie between the mandatories and other individual members. The sphere of authority assigned to the mandatories by decisions of the organization could give rise to legal ties only between them severally, as mandatories, and the organization itself. The individual member States of the organization could take part in the administrative process only through their participation in the activities of the organs by means of which the League was entitled to function. Such participation did not give rise to any right of direct intervention relative to the mandatories: this was, and remained, the prerogative of the League organs.

26. On the other hand, this did not mean that the member States were mere helpless or impotent spectators of what went on, or that they lacked all means of recourse. On the contrary, as members of the League Assembly, or as members of the League Council, or both, as the case might be, they could raise any question relating to mandates generally, or to some one mandate in particular, for consideration by those organs, and could, by their participation, influence the outcome. The records both of the Assembly and of other League organs show that the members of the League in fact made considerable use of this faculty. But again, its exercise—always through the League—did not confer on them any separate right of direct intervention. Rather did it bear witness to the absence of it.


27. Such is the background against which must be viewed the provisions by which the authority of the various mandatories was defied, and which the Court will now proceed to consider.

*
28. By paragraph 8 of Article 22 of the Covenant, it was provided that the "degree of authority, control or administration" which the various mandatories were to exercise, was to be "explicitly defined in each case by the Council", if these matters had not been "previously agreed upon by the Members of the League". The language of this paragraph was reproduced, in effect textually, in the fourth paragraph of the preamble to the Mandate for South West Africa, which the League Council itself inserted, thus stating the basis on which it was acting in adopting the resolution of 17 December 1920, in which the terms of mandate were set out. Taken by itself this necessarily implied that these terms had not been "previously agreed upon by the Members of the League". There is however some evidence in the record to indicate that in the context of the mandates, the allusion to agreement on the part of "the Members of the League" was regarded at the time as referring only to the five Principal Allied and Associated Powers engaged in the drafting; but this [p 27] of course could only lend emphasis to the view that the members of the League generally were not considered as having any direct concern with the setting up of the various mandates; and the record indicates that they were given virtually no information on the subject until a very late stage.

29. There is also evidence that the delays were due to difficulties over certain of the commercial aspects of the mandates, but that the Principal Powers had already decided that the mandates should in any event be issued by the Council of the League, thereby giving them a definitely institutional basis. Preliminary and private negotiations and consideration of drafts by member States, or certain of them, is a normal way of leading up to the resolutions adopted by an international organ, and in no way affects their character as eventually adopted. Accordingly the League Council proceeded to issue the Mandate which, being in the form of a resolution, did not admit of those processes of separate signature and ratification generally utilized at the time in all cases where participation on a "party" basis was intended. This method was common to all the mandates, except the 'A' mandate for Iraq which, significantly, was embodied in a series of treaties between the United Kingdom, as Mandatory, and Iraq. No other member of the League was a party to these treaties. It was to the League Council alone that the United Kingdom Government reported concerning the conclusion of these treaties, and to which it gave assurances that the general pattern of their contents would be the same as for the other mandates.

30. Nor did even the Principal Allied and Associated Powers as a group have the last word on the drafting of the Mandate. This was the Council's. In addition to the insertion as already mentioned, of the fourth paragraph of the preamble, the Council made a number of alterations in the draft before finally adopting it. One of these is significant in the present context. Unlike the final version of the jurisdictional clause of the Mandate as issued by the Council and adopted for all the mandates, by which the Mandatory alone undertook to submit to adjudication in the event of a dispute with another member of the League, the original version would have extended the competence of the Court equally to disputes referred to it by the Mandatory as plaintiff, as well as to disputes arising between other members of the League inter se. The reason for the change effected by the Council is directly relevant to what was regarded as being the status of the individual members of the League in relation to the Mandate. This reason was that, as was soon perceived, an obligation to submit to adjudication could not be imposed upon them without their consent. But of course, had they been regarded as "parties" to the instrument of Mandate, as if to a treaty, they would thereby have been held to have given consent to all that it contained, including the jurisdictional clause. Clearly they were not so regarded. [p 28]

31. Another circumstance calling for notice is that, as mentioned earlier, the Mandate contained a clause—paragraph 1 of Article 7 (and similarly in the other mandates)—providing that the consent of the Council of the League was required for any modification of the terms of the Mandate; but it was not stated that the consent of individual members of the League was additionally required. There is no need to enquire whether, in particular cases—for instance for the modification of any of their "special interests" under the mandate—the consent of the member States would have been necessary, since what is now in question is the "conduct" provisions. As to these, the special position given to the Council of the League by paragraph 1 of Article 7 confirms the view that individual member States were not regarded as having a separate legal right or interest of their own respecting the administration of the Mandate. It is certainly inconsistent with the view that they were con-sidered as separate parties to the instrument of mandate.

*
32. The real position of the individual members of the League relative to the various instruments of mandate was a different one. They were not parties to them; but they were, to a limited extent, and in certain respects only, in the position of deriving rights from these instruments. Not being parties to the instruments of mandate, they could draw from them only such rights as these unequivocally conferred, directly or by a clearly necessary implication. The existence of such rights could not be presumed or merely inferred or postulated. But in Article 22 of the League Covenant, only the mandatories are mentioned in connection with the carrying out of the mandates in respect of the inhabitants of the mandated territories and as regards the League organs. Except in the procedural provisions of paragraph 8 (the "if not previously agreed upon" clause) the only mention of the members of the League in Article 22 is in quite another context, namely at the end of paragraph 5, where it is provided that the mandatories shall "also secure equal opportunities for the trade and commerce of other Members of the League". It is the same in the instruments of mandate. Apart from the jurisdictional clause, which will be considered later, mention of the members of the League is made only in the "special interests" provisions of these instruments. It is in respect of these interests alone that any direct link is established between the mandatories and the members of the League individually. In the case of the "conduct" provisions, mention is made only of the mandatory and, where required, of the appropriate organ of the League. The link in respect of these provisions is with the League or League organs alone.

***

33. Accordingly, viewing the matter in the light of the relevant texts and instruments, and having regard to the structure of the League, [p 29] within the framework of which the mandates system functioned, the Court considers that even in the time of the League, even as members of the League when that organization still existed, the Applicants did not, in their individual capacity as States, possess any separate self-contained right which they could assert, independently of, or additionally to, the right of the League, in the pursuit of its collective, institutional activity, to require the due performance of the Mandate in discharge of the "sacred trust". This right was vested exclusively in the League, and was exercised through its competent organs. Each member of the League could share in its collective, institutional exercise by the League, through their participation in the work of its organs, and to the extent that these organs themselves were empowered under the mandates system to act. By their right to activate these organs (of which they made full use), they could procure consideration of mandates questions as of other matters within the sphere of action of the League. But no right was reserved to them, individually as States, and independently of their participation in the institutional activities of the League, as component parts of it, to claim in their own name,—still less as agents authorized to represent the League,—the right to invigilate the sacred trust,—to set themselves up as separate custodians of the various mandates. This was the role of the League organs.

34. To put this conclusion in another way, the position was that under the mandates system, and within the general framework of the League system, the various mandatories were responsible for their conduct of the mandates solely to the League—in particular to its Council—and were not additionally and separately responsible to each and every individual State member of the League. If the latter had been given a legal right or interest on an individual "State" basis, this would have meant that each member of the League, independently of the Councilor other competent League organ, could have addressed itself directly to every mandatory, for the purpose of calling for explanations or justifications of its administration, and generally to exact from the mandatory the due performance of its mandate, according to the view which that State might individually take as to what was required for the purpose.

35. Clearly no such right existed under the mandates system as contemplated by any of the relevant instruments. It would have involved a position of accountability by the mandatories to each and every member of the League separately, for otherwise there would have been nothing additional to the normal faculty of participating in the collective work of the League respecting mandates. The existence of such an additional right could not however be reconciled with the way in which hthe obligation of the mandatories, both under Article 22 of the League Covenant, and (in the case of South West Africa) Article 6 of the instrument of Mandate, was limited to reporting to the League Council, [p 30] and to its satisfaction alone. Such a situation would have been particularly unimaginable in relation to a system which, within certain limits, allowed the mandatories to determine for themselves by what means they would carry out their mandates: and a fortiori would this have been so in the case of a 'C' mandate, having regard to the special power of administration as "an integral portion of its own territory" which, as already noted, was conferred upon the mandatory respecting this category of mandate.

36. The foregoing conclusions hold good whether the League is regarded as having possessed the kind of corporate juridical personality that the Court, in its Advisory Opinion in the case of Reparation for Injuries Suffered in the Service of the United Nations (I.C.J. Reports 1949, p. 174), found the United Nations to be invested with,—or whether the League is regarded as a collectivity of States functioning on an institutional basis, whose collective rights in respect of League matters were, as Article 2 of the Covenant implied, exercisable only through the appropriate League organs, and not independently of these.

*

37. In order to test the conclusions thus reached, it is legitimate to have regard to the probable consequences of the view contended for by the Applicants,—or at any rate to the possibilities that would have been opened up if each member of the League had individually possessed the standing and rights now claimed. One question which arises is that of how far the individual members of the League would have been in a position to play the role ascribed to them. The Applicants, as part of their argument in favour of deeming the functions previously discharged by the Council of the League to have passed now to the General Assembly of the United Nations, insisted on the need for "informed" dealings with the Mandatory: only a body sufficiently endowed with the necessary knowledge, experience and expertise could, it was said, adequately discharge the supervisory role. Yet at the same time it was contended that individual members of the League,—not directly advised by the Permanent Mandates Commission,—not (unless members of the Council) in touch with the mandates questions except through their participation in the work of the League Assembly,—nevertheless possessed a right independently to confront the various mandatories over their administration of the mandates, and a faculty to call upon them to alter their policies and adjust their courses accordingly. The two contentions are inconsistent, and the second affronts all the probabilities.

38. No less difficult than the position of a mandatory caught between a number of possible different expressions of view, would have been [p 31] that of the League Council whose authority must have been undermined, and its action often frustrated, by the existence of some 40 or 50 in-dependent centres of invigilatory rights.

39. Equally inconsistent would the position claimed for individual League members have been with that of the mandatory as a member of the Council on mandates questions. As such, the mandatory, on the basis of the normal League voting rule, and by virtue of Article 4, paragraphs 5 and 6, and Article 5, paragraph 1, of the Covenant, possessed a vote necessary to the taking of any formal Council decision on a question of substance relative to its mandate (at least in the sense that, if cast, it must not be adversely cast); so that, in the last resort, the assent, or non-dissent, of the mandatory had to be negotiated.

40. In the opinion of the Court, those who intended the one system cannot simultaneously have intended the other: and if in the time of the League,—if as members of the League,—the Applicants did not possess the rights contended for,—evidently they do not possess them now. There is no principle of law which, following upon the dissolution of the League, would operate to invest the Applicants with rights they did not have even when the League was still in being.

***

41. The Court will now turn to the various contentions that have been or might be advanced in opposition to the view it takes; and will first deal with a number of points which have a certain general affinity.

42. Firstly, it may be represented that the consequences described above as being rendered possible if individual members of the League had had the rights now contended for by the Applicants, are unreal,—because the true position under the mandates system was that, even if in all normal circumstances the mandatories were responsible to the Council of the League alone, nevertheless the individual members of the League possessed a right of last resort to activate the Court under the jurisdictional clause if any mandate was being contravened. The Court will consider the effect of the jurisdictional clause later; but quite apart from that, the argument is misconceived. It is evident that any such right would have availed nothing unless the members of the League had individually possessed substantive rights regarding the carrying out of the mandates which they could make good before the Court, if and when they did activate it. If, however, they possessed such rights then, as already noted, irrespective of whether they went to the Court or not, they were entitled at all times, outside League channels, to confront the mandatories over the administration of their mandates, just as much as in respect of their "special interests" under the mandate. The theory that the members of [p 32] the League possessed such rights, but were precluded from exercising them unless by means of recourse to adjudication, constitutes an essentially improbable supposition for which the relevant texts afford no warrant. These texts did not need to impose any such limitation, for the simple reason that they did not create the alleged rights.

43. Again, it has been pointed out that there is nothing unprecedented in a situation in which the supervision of a certain matter is, on the political plane, entrusted to a given body or organ, but where certain individual States—not all of them necessarily actual parties to the instruments concerned—have parallel legal rights in regard to the same matter, which they can assert in specified ways. This is true but irrelevant, since for the present purposes the question is not whether such rights could be, but whether they were in fact conferred. In various instances cited by way of example, not only was the intention to confer the right and its special purpose quite clear,—it was also restricted to a small group of States, members, either permanent or elected, of the supervisory organ concerned. In such a case, the right granted was, in effect, part of the institutional or conventional machinery of control, and its existence could occasion no difficulty or confusion. This type of case, which will be further discussed later, in connection with the jurisdictional clause of the mandates, is not the same as the present one.

44. Next, it may be said that a legal right or interest need not necessarily relate to anything material or "tangible", and can be infringed even though no prejudice of a material kind has been suffered. In this connection, the provisions of certain treaties and other international instruments of a humanitarian character, and the terms of various arbitral and judicial decisions, are cited as indicating that, for instance, States may be entitled to uphold some general principle even though the particular contravention of it alleged has not affected their own material interests;—that again, States may have a legal interest in vindicating a principle of international law, even though they have, in the given case, suffered no material prejudice, or ask only for token damages. Without attempting to discuss how far, and in what particular circumstances, these things might be true, it suffices to point out that, in holding that the Applicants in the present case could only have had a legal right or interest in the "special interests" provisions of the Mandate, the Court does not in any way do so merely because these relate to a material or tangible object. Nor, in holding that no legal right or interest exists for the Applicants, individually as States, in respect of the "conduct" provisions, does the Court do so because any such right, or interest would not have a material or tangible object. The Court simply holds that such rights or interests, in order to exist, must be clearly vested in those who claim them, by some text or instrument, or rule of law;—and that in the present case, none were ever vested in individual members of the League under any of the relevant instruments, or as a [p 33] constituent part of the mandates system as a whole, or otherwise.

45. Various miscellaneous propositions are also advanced: the Mandate is more deserving of protection than the "special interests" of any particular State;—there would be nothing extraordinary in a State having a legal right to vindicate a purely altruistic interest;—and so forth. But these are not really legal propositions: they do not eliminate the need to find the particular provisions or rules of law the existence of which they assume, but do not of themselves demonstrate.

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46. It is also asked whether, even supposing that the Applicants only had an interest on the political level respecting the conduct of the Mandate, this would not have sufficed to enable them to seek a declaration from the Court as to what the legal position was under the Mandate, so that, for instance, they could know whether they would be on good ground in bringing before the appropriate political organs, acts of the mandatory thought to involve a threat to peace or good international relations.

47. The Court is concerned in the present proceedings only with the rights which the Applicants had as former members of the League of Nations—for it is in that capacity alone that they are now appearing. If the contention above described is intended to mean that because, for example, the Applicants would, under paragraph 2 of Article 11 of the League Covenant, have had "the friendly right... to bring to the attention of the Assembly or of the Council any circumstance ... which threatens to disturb international peace or the good understanding ...upon which peace depends", they would therefore also—and on that account—have had the right to obtain a declaration from the Court as to what the mandatory's obligations were, and whether a violation of these had occurred;—if this is the contention, the Court can only reply to it in the negative. A provision such as Article 11 of the Covenant could at most furnish a motive why the Applicants (or other members of the League) might wish to know what the legal position was. It could not of itself give them any right to procure this knowledge from the Court which they would not otherwise have had under the Mandate itself.

48. On the other hand, an appropriate organ of the League such as the Council could of course have sought an advisory opinion from the Court on any such matter. It is in this connection that the chief objection to the theory under discussion arises. Under the Court's Statute as it is at present framed, States cannot obtain mere "opinions" from the Court. This faculty is reserved to certain international organs empowered to exercise it by way of the process of requesting the Court for an advisory opinion. It was open to the Council of the League to make use of this process in case of any doubt as to the rights of the League or its [p 34] members relative to mandates. But in their individual capacity, States can appear before the Court only as litigants in a dispute with another State, even if their object in so doing is only to obtain a declaratory judgment. The moment they so appear however, it is necessary for them, even for that limited purpose, to establish, in relation to the de-fendant party in the case, the existence of a legal right or interest in the subject-matter of their claim, such as to entitle them to the declarations or pronouncements they seek: or in other words that they are parties to whom the defendant State is answerable under the relevant instrument or rule of law.

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49. The Court must now turn to certain questions of a wider character. Throughout this case it has been suggested, directly or indirectly, that humanitarian considerations are sufficient in themselves to generate legal rights and obligations, and that the Court can and should proceed accordingly. The Court does not think so. It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve asocial need; but precisely for that reason it can do so only through hand within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.

50. Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested—have an interest—in such matters. But the existence of an "interest" does not of itself entail that this interest is specifically juridical in character.

51. It is in the light of these considerations that the Court must examine what is perhaps the most important contention of a general character that has been advanced in connection with this aspect of the case, namely the contention by which it is sought to derive a legal right or interest in the conduct of the mandate from the simple existence, or principle, of the "sacred trust". The sacred trust, it is said, is a "sacred trust of civilization". Hence all civilized nations have an interest in seeing that it is carried out. An interest, no doubt;—but in order that this interest may take on a specifically legal character, the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. One such form might be the United Nations trusteeship system,—another, as contained in Chapter XI of the Charter concerning non-self-governing territories, which makes express reference to "a sacred trust". In each case the legal rights and obligations are those, and only those, provided for by the relevant texts, whatever these may be.

52. In the present case, the principle of the sacred trust has as its sole [p 35] juridical expression the mandates system. As such, it constitutes a moral ideal given form as a juridical régime in the shape of that system. But it is necessary not to confuse the moral ideal with the legal rules intended to give it effect. For the purpose of realizing the aims of the trust in the particular form of any given mandate, its legal rights and obligations were those, and those alone, which resulted from the rele-vant instruments creating the system, and the mandate itself, within the framework of the League of Nations.

53. Thus it is that paragraph 2 of Article 22 of the Covenant, in the same breath that it postulates the principle of the sacred trust, specifies in terms that, in order to give "effect to this principle", the tutelage of the peoples of the mandated territories should be entrusted to certain nations, "and that this tutelage should be exercised by them" as mandatories "on behalf of the League". It was from this that flowed all the legal consequences already noticed.

54. To sum up, the principle of the sacred trust has no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations outside the system as a whole; and, within the system equally, such rights and obligations exist only in so far as there is actual provision for them. Once the expression to be given to an idea has been accepted in the form of a particular régime or system, its legal incidents are those of the régime or system. It is not permissible to import new ones by a process of appeal to the originating idea—a process that would, ex hypothesi, have no natural limit. Hence, although, as has constantly been reiterated, the members of the League had an interest in seeing that the obligations entailed by the mandates system were respected, this was an interest which, according to the very nature of the system itself, they could exercise only through the appropriate League organs, and not individually.

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55. Next, it may be suggested that even if the legal position of the Applicants and of other individual members of the League of Nations was as the Court holds it to be, this was so only during the lifetime of the League, and that when the latter was dissolved, the rights previously resident in the League itself, or in its competent organs, devolved, so to speak, upon the individual States which were members of it at the date of its dissolution. There is, however, no principle of law which would warrant such a conclusion. Although the Court held in the earlier 1962 phase of the present case that the members of a dissolved international organization can be deemed, though no longer members of it, to retain rights which, as members, they individually possessed when the organization was in being, this could not extend to ascribing to them, upon and by reason of the dissolution, rights which, even previously as members, they never did individually possess. Nor of [p 36] course could anything that occurred subsequent to the dissolution of the League operate to invest its members with rights they did not, in that capacity, previously have,—and it is the rights which they had as members of the League that are now in question.

56. The Court can equally not read the unilateral declarations, or statements of intention as they have been called, which were made by the various mandatories on the occasion of the dissolution of the League, expressing their willingness to continue to be guided by the mandates in their administration of the territories concerned, as conferring on the members of the League individually any new legal rights or interests of a kind they did not previously possess.

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57. Another argument which requires consideration is that in so far as the Court's view leads to the conclusion that there is now no entity entitled to claim the due performance of the Mandate, it must be unacceptable. Without attempting in any way to pronounce on the various implications involved in this argument, the Court thinks the inference sought to be drawn from it is inadmissible. If, on a correct legal reading of a given situation, certain alleged rights are found to be non-existent, the consequences of this must be accepted. The Court cannot properly postulate the existence of such rights in order to avert those consequences. This would be to engage in an essentially legislative task, in the service of political ends the promotion of which, however desirable in itself, lies outside the function of a court-of-law.

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58. The Court comes now to a more specific category of contention arising out of the existence and terms of the jurisdictional clause of the Mandate, and of the effect of the Court's Judgment of 21 December 1962in that regard. The Court's present Judgment is founded on the relevant provisions of the Covenant of the League of Nations, the character of the League as an organization, and the substantive provisions of the instrument of Mandate for South West Africa. The question now to be considered is whether there is anything arising out of its previous Judgment, or the terms of the jurisdictional clause of the Mandate, which should lead the Court to modify the conclusions arrived at on those foundations.

59. In the first place, it is contended that the question of the Applicants' legal right or interest was settled by that Judgment and cannot now be reopened. As regards the issue of preclusion, the Court finds it unnecessary to pronounce on various issues which have been raised in this connection, such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of that term,—whether it ranks as a "decision" for the purposes of Article 59 of the Court's [p 37] Statute, or as "final" within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the. preliminary objection. When preliminary objections are entered by the defendant party in a case, the proceedings on the merits are, by virtue of Article 62, paragraph 3, of the Court's Rules, suspended. Thereafter, and until the proceedings on the merits are resumed, the preliminary objections having been rejected, there can be no decision finally determining or pre-judging any issue of merits. It may occur that a judgment on a preliminary objection touches on a point of merits, but this it can do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. Any finding on the point of merits therefore, ranks simply as part of the motivation of the decision on the preliminary objection, and not as the object of that decision. It cannot rank as a final decision on the point of merits involved.

60. It is however contended that, even if the Judgment of 1962 was, for the above-mentioned reasons, not preclusive of the issue of the Applicants' legal right or interest, it did in essence determine that issue because it decided that the Applicants were entitled to invoke the jurisdictional clause of the Mandate, and that if they had a sufficient interest to do that, they must also have a sufficient interest in the subject-matter of their claim. This view is not well-founded. The faculty of invoking a jurisdictional clause depends upon what tests or conditions of the right to do so are laid down by the clause itself. To hold that the parties in any given case belong to the category of State specified in the clause,— that the dispute has the specified character,—and that the forum is the one specified,—is not the same thing as finding the existence of a legal right or interest relative to the merits of the claim. The jurisdictional clause of the Mandate for South West Africa (Article 7, paragraph 2), which appeared in all the mandates, reads as follows:

"The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations."

Looking at this provision; assuming the existence of a dispute; assuming that negotiations had taken place; that these had not settled the dispute; and that the Court was, by the operation of Article 37 of its Statute, duly substituted for the Permanent Court as the competent forum (all of which assumptions would be in accordance with the Court's [p 38] Judgment of 1962);—then all that the Applicants had to do in order to bring themselves under this clause and establish their capacity to invoke it, was to show (a) ratione personae, that they were members of the League, constructively if not actually, or must be deemed still so to be for the purposes of this provision, notwithstanding the dissolution of the League; and (b) ratione materiae, that the dispute did relate to the interpretation or application of one or more provisions of the Mandate. If the Court considered that these requirements were satisfied, it could assume jurisdiction to hear and determine the merits without going into the question of the Applicants' legal right or interest relative to the subject-matter of their claim; for the jurisdictional clause did not, according to its terms, require them to establish the existence of such a right or interest for the purpose of founding the competence of the Court.

61. Hence, whatever observations the Court may have made on that matter, it remained for the Applicants, on the merits, to establish that they had this right or interest in the carrying out of the provisions which they invoked, such as to entitle them to the pronouncements and declarations they were seeking from the Court. Since decisions of an interlocutory character cannot pre-judge questions of merits, there can be no contradiction between a decision allowing that the Applicants had the capacity to invoke the jurisdictional clause—this being the only question which, so far as this point goes, the Court was then called upon to decide, or could decide,—and a decision that the Applicants have not established the legal basis of their claim on the merits.

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62. It is next contended that this particular jurisdictional clause has an effect which is more extensive than if it is considered as a simple jurisdictional clause: that it is a clause conferring a substantive right,—that the substantive right it confers is precisely the right to claim from the Mandatory the carrying out of the "conduct of the Mandate" provisions of the instrument of mandate,—and that in consequence, even if the right is derivable from no other source, it is derivable from and implicit in this clause.

63. Let it be observed first of all that it would be remarkable if this were the case,—that is to Say if so important a right, having such potentially far-reaching consequences,—intended, so the Applicants contend, to play such an essential role in the scheme of the Mandate—of all the mandates, and of the system generally—had been created indirectly, and in so casual and almost incidental a fashion, ,by an ordinary jurisdictional clause, lacking as will shortly be seen in any of the special features that might give it the effect claimed,—and which would certainly be requisite in order to achieve that effect. The Court considers it highly unlikely that, given the far-reaching consequences involved and, according to the Applicants, intended, the framers of the mandates system, had [p 39] they had any such intention, would have chosen this particular type of jurisdictional clause as the method of carrying it out.

64. In truth however, there is nothing about this particular jurisdictional clause to differentiate it from many others, or to make it an exception to the rule that, in principle, jurisdictional clauses are adjectival not substantive in their nature and effect. It is of course possible to introduce into such a clause extra paragraphs or phrases specifically conveying substantive rights or imposing substantive obligations; but the particular section of any clause which provides for recourse to ail indicated forum, on the part of a specified category of litigant, in relation to a certain kind of dispute—or those words in it which provide this—cannot simultaneously and per se invest the parties with the substantive rights the existence of which is exactly what they will have to demonstrate in the forum concerned, and which it is the whole object of the latter to determine. It is a universal and necessary, but yet almost elementary principle of procedural law that a distinction has to be made between, on the one hand, the right to activate a court and the right of the court to examine the merits of the claim,—and, on the other, the plaintiff party's legal right in respect of the subject-matter of that which it claims, which would have to be established to the satisfaction of the Court.

65. In the present case, that subject-matter includes the question whether the Applicants possess any legal right to require the performance of the "conduct" provisions of the Mandate. This is something which cannot be predetermined by the language of a common-form jurisdictional clause such as Article 7, paragraph 2, of the Mandate for South West Africa. This provision, with slight differences of wording and emphasis, is in the same form as that of many other jurisdictional clauses. The Court can see nothing in it that would take the clause outside the normal rule that, in a dispute causing the activation of a jurisdictional clause, the substantive rights themselves which the dispute is about, must be sought for elsewhere than in this clause, or in some element apart from it,—and must therefore be established aliunde vel aliter. Jurisdictional clauses do not determine whether parties have substantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal.

66. Such rights may be derived from participation in an international instrument by a State which has signed and ratified, or has acceded, or has in some other manner become a party to it; and which in consequence, and subject to any exceptions expressly indicated, is entitled to enjoy rights under all the provisions of the instrument concerned. Since the Applicants cannot bring themselves under this head, they must show that the "conduct" provisions of the mandates conferred rights in terms on members of the League as individual States, in the same way that the "special interests" provisions did. It is however contended that there is a third possibility, and that on the basis of the jurisdictional clause alone, the Applicants, as members of the League, were part of the institutional machinery of control relative to the man-[p 40] dates, and that in this capacity they had a right of action of the same kind as, for instance, members of the League Council had under the jurisdictional clauses of the minorities treaties of that period, for the protection of minority rights. On this footing the essence of the contention is that the Applicants do not need to show the existence of any substantive rights outside the jurisdictional clause, and that they had—that all members of the League had—what was in effect a policing function under the mandates and by virtue of the jurisdictional clause.

67. The Court has examined this contention, but does not think that the two cases are in any way comparable. When States intend to create a right of action of this kind they adopt a different method. Such a right has, in special circumstances, been conferred on States belonging to a body of compact size such as the Council of the League of Nations, invested with special supervisory functions and even a power of intervention in the matter, as provided by the jurisdictional clause of the minorities treaties—see for instance Article 12 of the minorities treaty with Poland, signed at Versailles on 28 June 1919, which was typical. Even so the right, as exercisable by members of the League Council, in effect as part of the Council's work, with which they would ex hypothesi have been fully familiar, was characterized at the time by an eminent Judge and former President of the Permanent Court as being "in every respect very particular in character" and as going "beyond the province of general international law". The intention to confer it must be quite clear; and the Court holds that for the reasons which have already been given, and for others to be considered later, there was never any intention to confer an invigilatory function of this kind on each and every member of the League.

68. It has to be asked why, if anything of the sort was thought necessary in the case of the mandates, it was not done in the same way as under the minorities clauses (which, in general, were drafted contemporaneously by the same authors)—namely by conferring a right of action on members of the League Council as such, seeing that it was the Council which had the supervisory function under the mandates? This would have been the obvious, and indeed the only workable method of procedure. Alternatively, it must be asked why, if it was indeed thought necessary in the case of mandates to invest all the members of the League with this function, for the protection of the mandates, it was apparently considered sufficient in the minorities case to bring in only the members of the League Council?

69. The Court finds itself unable to reconcile the two types of case except upon the assumption, strongly supported by every other factor involved, that, as regards the mandates, the jurisdictional clause was intended to serve a different purpose, namely to give the individual members of the League the means, which might not otherwise be available to them through League channels, of protecting their "special interests" relative to the mandated territories. In the minorities case, the right of action of the members of the Council under the jurisdictional clause [p 41] was only intended for the protection of minority populations. No other purpose in conferring a right of action on members of the League Council would have been possible in that case. This was not so in regard to the mandates, the provisions of which afforded another and perfectly natural explanation of the jurisdictional clause and of its purpose; whereas, if a policing function had been intended, it is obviously to the members of the Council that it would have been given, and in the same sort of terms as in the minorities case.

70. In this last connection it is of capital importance that the right as conferred in the minorities case was subjected to certain characterizations which were wholly absent in the case of the jurisdictional clause of the mandates. Any "difference of opinion" was characterized in advance as being justiciable, because it was to be "held to be a dispute of an international character" within the meaning of Article 14 of the Covenant(this was the well-known "deeming" clause), so that no question of any lack of legal right or interest could arise. The decisions of the Court were moreover, to be final and, by means of a reference to Article 13 of the Covenant, were given an effect erga omnes as a general judicial settlement binding on all concerned. The jurisdictional clause of the mandates on the other hand, was essentially an ordinary jurisdictional clause, having none of the special characteristics or effects of those of the minorities treaties.

71. That the League Council had functions in respect of mandates, just as it did in respect of minorities, can only serve to underline the fact that in the former case no right of recourse to the Court was conferred on the members of the Council in their capacity as such, although the mandates were drafted in full knowledge of what the minorities treaties contained. The true significance of the minorities case is that it shows that those who framed the mandates were perfectly capable of doing what the Applicants claim was done, when they intended to. The conclusion must be that i n the case of the mandates they did not intend to.

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72. Since the course adopted in the minorities case does not constitute any parallel to that of the mandates, the Applicants' contention is seen to depend in the last analysis almost entirely on what has been called the broad and unambiguous language of the jurisdictional clause—or in other words its literal meaning taken in isolation and without reference to any other consideration. The combination of certain phrases in this clause, namely the reference to "any dispute whatever", coupled with the further words "between the Mandatory and another Member of the League of Nations" and the phrase "relating ...to the provisions of the Mandate", is said to permit of a reference to the Court of a dispute about any provision of the Mandate, and thus to imply, reflect or bear witness to the existence of a legal right or interest for every member of the League in the due execution of every such provision. The Court does not however consider [p 42] that the word "whatever" in Article 7, paragraph 2, does anything more than lend emphasis to a phrase that would have meant exactly the same without it; or that the phrase "any dispute" (whatever) means anything intrinsically different from "a dispute"; or that the reference to the "provisions" of the Mandate, in the plural, has any different effect from what would have resulted from saying "a provision". Thus reduced to its basic meaning, it can be seen that the clause is not capable of carrying the load the Applicants seek to put upon it, and which would result in giving such clauses an effect that States accepting the Court's jurisdiction by reason of them, could never suppose them to have.

73. In this connection the Court thinks it desirable to draw attention to the fact that a considerable proportion of the acceptances of its compulsory jurisdiction which have been given under paragraph 2 of Article 36 of the Statute of the Court, are couched in language similarly broad and unambiguous and even wider, covering all disputes between the accepting State and any other State (and thus "any dispute whatever”)— subject only to the one condition of reciprocity or, in some cases, to certain additional conditions such as that the dispute must have arisen after a specified date. It could never be supposed however that on the basis of this wide language the accepting State, by invoking this clause, was absolved from establishing a legal right or interest in the subject-matter of its claim. Otherwise, the conclusion would have to be that by accepting the compulsory jurisdiction of the Court in the widest terms possible, States could additionally create a legal right or interest for themselves in the subject-matter of any claim they chose to bring, and a corresponding answerability on the part of the other accepting State concerned. The underlying proposition that by conferring competence on the Court, a jurisdictional clause can thereby and of itself confer a substantive right, is one which the Court must decline to entertain.

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74. The Court must now, though only as a digression, glance at another aspect of the matter. The present Judgment is based on the view that the question of what rights, as separate members of the League, the Applicants had in relation to the performance of the Mandate, is a question appertaining to the merits of their claim. It has however been suggested that the question is really one of the admissibility of the claim, and that as such it was disposed of by the Court's 1962 Judgment.

75. In the "dispositif" of the 1962 Judgment, however, the Court, after considering the four preliminary objections advanced—which were objections to the competence of the Court—simply found that it had" jurisdiction to adjudicate upon the merits". It thus appears that the Court in 1962 did not think that any question of the admissibility of [p 43] the claim, as distinct from that of its own jurisdiction arose, or that the Respondent had put forward any plea of inadmissibility as such: nor had it,—for in arguing that the dispute was not of the kind contemplated by the jurisdictional clause of the Mandate, the purpose of the Respondent was to show that the case was not covered by that clause, and that it did not in consequence fall within the scope of the competence conferred on the Court by that provision.

76. If therefore any question of admissibility were involved, it would fall to be decided now, as occurred in the merits phase of the Nottebohm case (I.C.J. Reports 1955, p. 4); and all that the Court need Say is that if this were so, it would determine the question in exactly the same way, and for the same reasons, as in the present Judgment. In other words, looking at the matter from the point of view of the capacity of the Applicants to advance their present claim, the Court would hold that they had not got such capacity, and hence that the claim was inadmissible.

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77. Resuming the main thread of its reasoning, the Court will now refer to a supplementary element that furnishes indications in opposition to the interpretation of the jurisdictional clause advanced by the Applicants. This contra-indication is afforded by the genesis of the jurisdictional clause appearing in all the instruments of mandate. The original drafts contained no jurisdictional clause. Such a clause was first introduced in connection with the 'B' mandates by one of the States participating in the drafting, and concurrently with proposals made by that same State for a number of detailed provisions about commercial and other "special interests" rights (including missionary rights) for member States of the League. It was little discussed but, so far as it is possible to judge from what is only a summary record, what discussion there was centred mainly on the commercial aspects of the mandates and the possibility of disputes arising in that regard over the interests of nationals of members of the League. This appears very clearly from the statements summarized on pages 348, 349 and 350 of Part VI A of the Recueil des Actes of the Paris Peace Conference, 1919-1920, if these statements are read as a whole. No corresponding clear connection emerges between the clause and possible disputes between mandatories and individual members of the League over the conduct of the mandates as mandates. That such disputes could arise does not seem to have been envisaged. In the same way, the original drafts of the 'C' mandates which, in a different form, contained broadly all that now appears in the first four articles of the Mandate for South West Africa, had no jurisdictional clause and no "missionary clause" either. The one appeared when the other did.

78. The inference to be drawn from this drafting history is confirmed by the very fact that the question of a right of recourse to the Court arose [p 44] only at the stage of the drafting of the instruments of mandate, and that as already mentioned, no such right figured among the "securities" for the performance of the sacred trust embodied in the League Covenant.

79. After going through various stages, the jurisdictional clause finally appeared in the same form in all the mandates, except that in the case of the Mandate for Tanganyika (as it then was) a drafting caprice caused the retention of an additional paragraph which did not appear, or had been dropped in all the other cases. Once the principle of a jurisdictional clause had been accepted, the clause was then introduced as a matter of course into all the mandates. This furnishes the answer to the contention that, in the case of the 'C' mandates, it must have been intended to relate to something more than the single "missionary clause" (Article 5 in the Mandate for South West Africa). Also, it must not be forgotten that it was simultaneously with the missionary clause that the jurisdictional clause was introduced; and that at the time much importance was attached to missionary rights. In any event, whatever the purpose of the jurisdictional clause, it was the same for all the mandates, and for the three categories of mandate. It is in the light of the mandates system generally that this purpose must be assessed, —and, so considered, the purpose is clear.

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80. The Court will now consider a final contention which has been advanced in support of the Applicants' claim of right, namely the so-called "necessity" argument.

81. In order to do this, and at the risk of some unavoidable repetition, it is necessary to review a little more closely the functioning of the mandates system. This system, within the larger setting of the League, was an entirely logical one. The various mandatories did not deal with the individual members of the League over the "conduct" provisions of their mandates, but with the appropriate League organs. If any difficulty should arise over the interpretation of any mandate, or the character of the mandatory's obligations, which could not be cleared up by discussion or reference to an ad hoc committee of jurists—a frequent practice in the League—the Council could in the last resort request the Permanent Court for an advisory opinion. Such an opinion would not of course be binding on the mandatory—it was not intended that it should be—but it would assist the work of the Council.

82. In the Council, which the mandatory was entitled to attend as a member for the purposes of any mandate entrusted to it, if not otherwise a member—(Article 4, paragraph 5, of the Covenant), the vote of the mandatory, if present at the meeting, was necessary for any actual "decision" of the Council, since unanimity of those attending was the basic voting rule on matters of substance in the main League organs—(Article 5, paragraph 1, of the Covenant). Thus there could never be any formal clash between the mandatory and the Council as such. In practice, the unanimity rule was frequently not insisted upon, or its [p 45] impact was mitigated by a process of give-and-take, and by various procedural devices to which both the Council and the mandatories lent themselves. So far as the Court's information goes, there never occurred any case in which a mandatory "vetoed" what would otherwise have been a Council decision. Equally, however, much trouble was taken to avoid situations in which the mandatory would have been forced to acquiesce in the views of the rest of the Council short of casting an adverse vote. The occasional deliberate absence of the mandatory from a meeting, enabled decisions to be taken that the mandatory might have felt obliged to vote against if it had been present. This was part of the above-mentioned process for arriving at generally acceptable conclusions.

83. Such were the methods, broadly speaking, adopted in the relations between the various mandatories and the League over the conduct of the mandates, and it can be seen how out of place in the context would have been the existence of substantive rights for individual members of the League in the conduct of the mandates (particularly if backed up by a right of recourse to the Court) exercisable independently of the Council at the will of the member State. On the other hand—and here again the concept was entirely logical—by the combined effect of the "special interests" provisions and the jurisdictional clause—(the latter alone could not have sufficed)—a right of recourse was given to the individual League members in respect of such interests, since the League Council could not be expected to act in defence of a purely national, not "League", interest.

84. Under this system, viewed as a whole, the possibility of any serious complication was remote; nor did any arise. That possibility would have been introduced only if the individual members of the League had been held to have the rights the Applicants now contend for. In actual fact, in the 27 years of the League, all questions were, by one means or another, resolved in the Council; no request was made to the Court for an advisory opinion; so far as is known, no member of the League attempted to settle direct with the mandatory any question that did not affect its own interests as a State or those of its nationals, and no cases were referred to the Permanent Court under the adjudication clause except the various phases of one single case (that of the Mavrommatis Concessions) coming under the head of "special interests". These facts may not be conclusive in themselves; but they have a significance which the Court cannot overlook, as suggesting that any divergences of view concerning the conduct of a mandate were regarded as being matters that had their place in the political field, the settlement of which lay between the mandatory and the competent organs of the League,—not between the mandatory and individual members of the League.

*[p 46]

85. Such then is the background against which the "necessity" argument has to be viewed. The gist of the argument is that since the Council had no means of imposing its views on the mandatory, and since no advisory opinion it might obtain from the Court would be binding on the latter, the mandate could have been flouted at will. Hence, so the contention goes, it was essential, as an ultimate safeguard or security for the performance of the sacred trust, that each member of the Leagues should be deemed to have a legal right or interest in that matter and, in the last resort, be able to take direct action relative to it.

86. It is evident on the face of it how misconceived such an argument must be in the context of a system which was expressly designed to include all those elements which, according to the "necessity" argument, it was essential to guard or provide securities against. The Court will leave on one side the obvious improbability that had the framers of the mandates system really intended that it should be possible in the last resort to impose a given course or policy on a mandatory, in the performance of the sacred trust, they would have left this to the haphazard and uncertain action of the individual members of the League, when other much more immediate and effective methods were to hand—for instance, by providing that mandatories should not be members of the Council for mandates purposes, though entitled to attend, or should not be entitled to exercise a vote on mandates questions; or again by investing members of the Council itself with a right of action before the Court, as in the minorities case. The plain fact is that, in relation to the "conduct" provisions of the mandates, it was never the intention that the Council should be able to impose its views on the various mandatories—the system adopted was one which deliberately rendered this impossible. It was never intended that the views of the Court should be ascertained in a manner binding on mandatories, or that mandatories should be answerable to individual League members as such in respect of the "conduct" provisions of the mandates. It is scarcely likely that a system which, of set purpose, created a position such that, if a mandatory made use of its veto, it would thereby block what would otherwise be a decision of the Council, should simultaneously invest individual members of the League with, in effect, a legal right of complaint if this veto, to which the mandatory was entitled, was made use of. In this situation there was nothing at all unusual. In the international field, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception,—and this was even more the case in 1920 than today.

87. As regards the possibility that a mandatory might be acting contrary not only to the views of the rest of the Council but to the mandate itself, the risk of this was evidently taken with open eyes; and that the risk was remote, the event proved. Acceptance of the Applicants' contention on the other hand, would involve acceptance of the proposition that even if the Council of the League should be perfectly satisfied with the way in which a mandatory was carrying out its mandate, any individual [p 47] member of the League could independently invoke the jurisdiction of the Court in order to have the same conduct declared illegal, although, as mentioned earlier, no provision for recourse to the Court was included amongst the "securities" provided for by the Covenant itself. Here again the difference is evident between this case and that of the minorities, where it was the members of the Council itself who 'had that right. The potential existence of such a situation as would have arisen from investing all the members of the League with the right in question is not reconcilable with the processes described above for the supervision of the mandates. According to the methods and procedures of the League as applied to the operation of the mandates system, it was by argument, discussion, negotiation and co-operative effort that matters were to be, and were, carried forward.

88. For these reasons the Court, bearing in mind that the rights of the Applicants must be determined by reference to the character of the system said to give rise to them, considers that the "necessity" argument falls to the ground for lack of verisimilitude in the context of the economy and philosophy of that system. Looked at in another way moreover, the argument amounts to a plea that the Court should allow the equivalent of an "actio popularis", or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the Court able to regard it as imported by the "general principles of law" referred to in Article 38, paragraph 1 (c), of its Statute.

***

89. The Court feels obliged in conclusion to point out that the whole "necessity" argument appears, in the final analysis, to be based on considerations of an extra-legal character, the product of a process of after-knowledge. Such a theory was never officially advanced during the period of the League, and probably never would have been but for the dissolution of that organization and the fact that it was then considered preferable to rely on the anticipation that mandated territories would be brought within the United Nations trusteeship system. It is these subsequent events alone, not anything inherent in the mandates system as it was originally conceived, and is correctly to be interpreted, that give rise to the alleged "necessity". But that necessity, if it exists, lies in the political field. It does not constitute necessity in the eyes of the law. If the Court, in order to parry the consequences of these events, were now to read into the mandates system, by way of, so to speak, remedial action, an element wholly foreign to its real character and structure as originally contemplated when the system was instituted, it [p 48] would be engaging in an ex post facto process, exceeding its functions as a court of law. As is implied by the opening phrase of Article 38, paragraph 1, of its Statute, the Court is not a legislative body. Its duty is to apply the law as it finds it, not to make it.

90. It is always open to parties to a dispute, if they wish the Court to give a decision on a basis of ex aequo et bono, and are so agreed, to invoke the power which, in those circumstances, paragraph 2 of this same Article 38 confers on the Court to give a decision on that basis, notwithstanding the provisions of paragraph 1. Failing that, the duty of the Court is plain.

91. It may be urged that the Court is entitled to engage in a process of "filling in the gaps", in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. The Court need not here enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, and would have to engage in a process of rectification or revision. Rights cannot be presumed to exist merely because it might seem desirable that they should. On a previous occasion, which had certain affinities with the present one, the Court declined to find that an intended three-member commission could properly be constituted with two members only, despite the (as the Court had held) illegal refusal of one of the parties to the jurisdictional clause to appoint its arbitrator—and although the whole purpose of the jurisdictional clause was thereby frustrated. In so doing, the Court (I.C.J. Reports 1950, p. 229) said that it was its duty "to interpret the Treaties, not to revise them". It continued:

"The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit."

In other words, the Court cannot remedy a deficiency if, in order to do so, it has to exceed the bounds of normal judicial action.

*

92. It may also be urged that the Court would be entitled to make good an omission resulting from the failure of those concerned to foresee what might happen, and to have regard to what it may be presumed the framers of the Mandate would have wished, or would even have made express provision for, had they had advance knowledge of what was to occur. The Court cannot however presume what the wishes and intentions of those concerned would have been in anticipation of events [p 49] that were neither foreseen nor foreseeable; and even if it could, it would certainly not be possible to make the assumptions in effect contended for by the Applicants as to what those intentions were.

93. In this last connection, it so happens that there is in fact one test that can be applied, namely by enquiring what the States who were members of the League when the mandates system was instituted did when, as Members of the United Nations, they joined in setting up the trusteeship system that was to replace the mandates system. In effect, as regards structure, they did exactly the same as had been done before, with only one though significant difference. There were of course marked divergences, as regards for instance composition, powers, and voting rules, between the organs of the United Nations and those of the League. Subject to that however, the Trusteeship Council was to play the same sort of role as the Permanent Mandates Commission had done, and the General Assembly (or Security Council in the case of strategic trusteeships) was to play the role of the League Council; and it was to these bodies that the various administering authorities became answerable. No right of supervision or of calling the administering authority to account was given to individual Members of the United Nations, whose sphere of action, as in the case of the League members, is to be found in their participation in the work of the competent organs.

94. The significant difference referred to lies in the distribution of the jurisdictional clause amongst the various trusteeship agreements. The clause itself is almost identical in its terms with that which figured in the mandates, and was clearly taken straight from these ("any dispute whatever", "between the Administering Authority and another Member of the United Nations", "relating to ... the provisions of this Agreement"). But whereas the jurisdictional clause appeared in all the man-dates, each of which contained "special interests" provisions, it figures only in those trusteeship agreements which contain provisions of this type, and not in agreements whose provisions are confined entirely to the performance of the trust in accordance with the basic objectives of the system as set out in Article 76 of the Charter.

95. If therefore, the contention put forward by the Applicants in the present case were correct in principle (and this contention is in a major degree founded on the existence and wording of the jurisdictional clause, and also involves the erroneous assumption that it can per se confer substantive rights), it would follow that, in the case of some of the trusteeships, individual members of the United Nations would be held to have a legal right or interest in the conduct and administration of the trust, but in relation to others they would not, although these were no less trusteeships,—no less an expression of the "sacred trust of civilization". The implications become even more striking when it is realized that the trusteeships to which no jurisdictional clause attaches are three previous Pacific 'C' mandates—that is to Say the class of [p 50] territory inhabited by precisely the most undeveloped categories of peoples, the least "able to stand by themselves".

96. It has been sought to explain this apparent anomaly by reference to the strong negotiating position in which the various mandatories found themselves, inasmuch as they were not legally obliged to place their mandated territories under trusteeship at all, and could therefore, within limits, make their own terms. But this would in no way explain why they seem to have been willing to accept a jurisdictional clause in the case of trusteeships that contained "special interests" provisions, including one Pacific 'C' mandate of this kind, but were not willing to do so in the case of trusteeships whose terms provided only for the performance of the trust in accordance with the basic objectives of the system.

97. No doubt, as has been pointed out, even where no jurisdictional clause figures in a trusteeship agreement, it would be possible, in those cases where the administering authority had made an appropriately worded declaration in acceptance of the Court's compulsory jurisdiction under the optional clause provision of Article 36 of the Court's Statute, for another member of the United Nations having made a similar and interlocking declaration, to seise the Court of a dispute regarding the performance of the trust. The number of cases in which this could occur has, however, always been very limited, and the process is rendered precarious and uncertain, not only by the conditions contained in, and the nature of the disputes covered by certain of these declarations, but also by their liability to amendment, withdrawal, or non-renewal. The optional clause system could therefore in no way have afforded a substitute for a general obligation to adjudicate, if such an obligation had really been regarded as essential;—moreover, even in those cases where an optional clause declaration could be invoked, it would still be necessary for the invoking State—as here—to establish the existence of a legal right or interest in the subject-matter of its claim.

98. It has also been sought to explain why certain trusteeship agreements do not contain the jurisdictional clause by a further appeal to the "necessity" argument. This clause was no longer necessary, so it was contended, because the United Nations voting rule was different. In the League Council, decisions could not be arrived at without the concurrence of the mandatory, whereas in the United Nations the majority voting rule ensured that a resolution could not be blocked by any single vote. This contention would not in any event explain why the clause was accepted for some trusteeships and not for others. But the whole argument is misconceived. If decisions of the League Council could not be arrived at without the concurrence, express or tacit, of the mandatory, they were, when arrived at, binding: and if resolutions of the United Nations General Assembly (which on this hypothesis would be the relevant organ) can be arrived at without the concurrence of the ad-ministering authority, yet when so arrived at—and subject to certain exceptions not here material—they are not binding, but only recommendatory in character. The persuasive force of Assembly resolutions [p 51] can indeed be very considerable,—but this is a different thing. It operates on the political not the legal level: it does not make these resolutions binding in law. If the "necessity" argument were valid therefore, it would be applicable as much to trusteeships as it is said to be to mandates, because in neither case could the administering authority be coerced by means of the ordinary procedures of the organization. The conclusion to be drawn is obvious.
***
99. In the light of these various considerations, the Court finds that the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims, and that, accordingly, the Court must decline to give effect to them.

100. For these reasons,

The Court,

by the President's casting vote—the votes being equally divided,

decides to reject the claims of the Empire of Ethiopia and the Republic of Liberia.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eighteenth day of July, one thousand nine hundred and sixty-six, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Empire of Ethiopia, the Government of the Republic of Liberia and the Government of the Republic of South Africa, respectively.

(Signed) Percy C. Spender,
President.

(Signed) S. Aquarone,
Registrar.

President Sir Percy SPENDER makes the following declaration:

1. The judgment of the Court, which consists of its decision and the reasons upon which it is based (Article 56 (1) of the Statute), is that the Applicants cannot be considered to have established that they have any legal right or interest in the subject-matter of the present claims, and that accordingly their claims are rejected. [p 52]

2. Having so decided, the Court's task was completed. It was not necessary for it to determine whether the Applicants' claims should or could be rejected on any other grounds. Specifically it was not called upon to consider or pronounce upon the complex of issues and questions involved in Article 2 of the mandate instrument ("The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate"); or Article 6 thereof ("The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council, containing full information with regard to the territory, and indicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4 and 5"); or to enter into a legal enquiry as to what it would or might have decided in respect to these and related matters had it not reached the decision it did. To have done so would, in my view, have been an excess of the judicial function.

3. The Judgment of the Court does not represent the unanimous opinion of the judges and, in consequence, Article 57 of the Statute of the Court, which provides that in that case "any judge shall be entitled to deliver a separate opinion", comes into operation.

4. It follows that any judge, whether he concurs in or dissents from the Court's judgment, is entitled, if he wishes, to deliver a separate opinion.

5. Since in my view there are grounds other than as stated in the Judgment upon which the Applicants' claims or certain of them could have been rejected, and since I agree with the Court's Judgment, there arises for me the question whether, and if so to what extent, it is permissible or appropriate to express by way of separate opinion my views on these additional grounds for rejecting the Applicants' claims or certain of them.

6. In order to answer this question, it is necessary to consider not merely the text of Article 57 but the general purpose it was intended to serve, and its intended application.

7. I would not wish to Say anything which would unreasonably restrict the right accorded to a judge by Article 57. It is an important right which must be safeguarded. Can it be, however, that there are no limits to the scope and extent of the exercise of this right by any individual judge? I cannot think so. There must, it seems to me, be some limits, to proceed beyond which could not be claimed to be a proper exercise of the right the Statute confers.

8. The right of a judge to express a dissenting opinion in whole or in part was not easily won.

9. In the Hague Convention of 1899 a right of dissent from arbitral decisions was recognized; it was adopted without discussion. At the Hague Conference of 1907 the question of dissent or no dissent was discussed at considerable length. In the result the right of dissent was suppressed. [p 53]
10. The Committee of Jurists, in drafting the Statute of the Permanent Court in 1920, after discussion, reached the conclusion that a judge should be allowed to publish his dissent, but not his reasons. This however failed to receive the approval of the Council of the League at its tenth meeting in Brussels in October of that year. There was then introduced into the text the right of a judge who did not concur in all or part of the judgment to deliver a separate opinion.

11. The record reveals clearly that this recognition of the right of a judge not only to publish his dissent but, as well, to express the reasons for the same, was the result of compromise (League of Nations Documents on Article 14 of the Covenant, pp. 138 et seq.). It was stated by Sir Cecil Hurst, who was at Brussels, and who defended, before the Sub-Committee of the Assembly, the view arrived at at the Brussels meeting of the Council, that the reason for disagreeing with the Committee of Jurists was because it was feared in England that the decisions of the Court might establish rules of law which would be incompatible with the Anglo-saxon legal system. The agreement reached in the Council of the League in Brussels, it seems clear, aimed at avoiding this apprehended danger by the publication of dissenting opinions.

12. This would strongly suggest that the contemplated purpose of the publication of the dissent, certainly its main purpose, was to enable the view of the dissenting judge or judges on particular questions of law dealt with in the Court's judgment to be seen side by side with the views of the Court on these questions.

13. In the result there was, without dissent, written into the Statute of the Permanent Court Article 57 thereof, which read:

"If the judgment does not represent in whole or in part the unanimous opinion of the judges, dissenting judges are entitled to deliver a separate opinion."

14. There is the considerable authority of President of the Permanent Court Max Huber for the view that the contemplated purpose of the right to publish reasons for a dissent was as stated in paragraph 12 above. In the course of a long discussion in that Court in July of 1926 on the general principle of dissenting opinions (Series D, Addendum No. 2, p. 215) he is recorded as having observed (my italics):

"Personally the President had always construed the right conferred on judges by Article 57 as a right to state their reasons and not simply to express their dissent, the object being to enable judges to explain their understanding of international law in order to prevent the creation of a false impression that a particular judgment or opinion expressed the unanimous opinion of the Court, in regard to the interpretation of international law on a particular point."[p 54]

15. Further support for Max Huber's view is, I think, to be found in a resolution of the Permanent Court of 17 February 1928 which, in part, read as follows (my italics): "Dissenting opinions are designed solely to set forth the reasons for which judges do not feel able to accept the opinion of the Court. . ."

16. It would appear evident from the record that it would have been quite foreign to the understanding of those who drafted the provision according the right of a judge to publish the reasons for his dissent, that this right could be one which permitted a judge to express his opinion at large, on matters not directly connected with the nature and subject-matter of the Court's decision.

17. This then was the origin of Article 57 of this Court's Statute, which was evidently based by its framers not only on the text of the corresponding article in the Statute of the Permanent Court, but, as well, upon the commonly understood purpose a dissenting opinion was designed to serve.

18. Article 57 of this Court's Statute extends the right to deliver a separate opinion to any judge, where the judgment does not represent in whole or in part the unanimous opinion of the judges.

19. If a dissenting judge is free to state his opinion on matters which are not directly connected with the Court's judgment, so it would appear is a concurring judge who, for any reason which recommends itself to him, desires to deliver a separate opinion.

20. In other words, if any judge is entitled to give a separate opinion quite outside the range of the Court's decision and on issues upon which the Court has made no findings of any kind, every other judge is so entitled. The inevitable confusion which this could lead to cannot, in my view, be supported by any rational interpretation and application of Article 57. It would, or could, in practice be destructive of the authority of the Court.

21. President Basdevant, a former distinguished President of this Court, in his Dictionary of the Terminology of International Law (p. 428)defines an individual concurring opinion as not a mere statement of disagreement as to the reasons given for a decision, the dispositif of which the judge accepts, but the forma1 explanation he gives of the grounds on which he personally does so; whilst a dissenting opinion denotes not a mere statement of dissent relative to a decision but the formal explanation given of the grounds on which the judge bases his dissent.

22. In the light of all these considerations the following conclusions appear justified:

(a) individual opinions, whether dissenting or merely separate, were, when the Court's Statute was drafted, regarded as such as were directly connected with and dependent upon the judgment of the [p 55]Court itself (or in the case of advisory opinions (Statute, Article 68, Rules, Article 84 (2)), its opinion), in the sense of either agreeing or disagreeing with it, or its motivation, or as to the sufficiency of the latter;

(b) the judgment (or opinion) of the Court must be the focal point of the different judicial views expressed on any occasion, since it is the existence and nature of the judgment (or opinion) and their relationship to it that gives individual opinions their judicial character;

(c) in principle such opinions should not purport to deal with matters that fall entirely outside the range of the Court's decision, or of the decision's motivation;

(d) there must exist a close direct link between individual opinions and the judgment of the Court.

23. If these conclusions are, as I think them to be, sound, there still remain wide limits within which an individual judge may quite properly go into questions that the Court has not dealt with, provided he keeps within the ambit of the order of question decided by the Court, and in particular observes the distinction between questions of a preliminary or antecedent character and questions not having that character. I cannot however agree that a separate or dissenting opinion may properly include all that a judge thinks the judgment of the Court should have included.

24. The mere fact that a judgment (or opinion) of the Court has been given does not afford justification for an expression of views at large on matters which entirely exceed the limits and intended scope of the judgment (or opinion). Without the judgment (or opinion) there would, of course, be no relationship and nothing of a judicial character that could be said by any judge. There is equally no relationship imparting judicial character to utterances about questions which the Court has not treated of at all.

25. Suppose that the Court, on a request to give an advisory opinion, refuses to do so, as for example it did in the case of Eastern Carelia, 1923, Series B, No. 5, on a specific ground stated; could a judge of the Court, by way of a separate individual or dissenting opinion, proceed to give his views as to what the opinion of the Court should have been if it had decided to express it? I should have thought not.

26. Is there in principle any real distinction between this supposed case and the present cases? I think not. The Court has decided, on what is a preliminary question of the merits, that the Applicants' claims must be rejected: thus further examination of the merits becomes supererogatory. Is any judge in a separate opinion, in disregard of the particular issue or question decided by the Court and the reasoning in support of the decision, entitled to go beyond giving his reasons for disagreeing with that decision, and passing entirely outside it to express his views on what the Court should have decided in relation to other matters of the merits, on which no decision has been arrived at and no [p 56] expression of opinion has been given by the Court? To do so, in my view, would be to go outside the proper limits of an individual or separate opinion.

27. It cannot be that the mere dispositif itself can enlarge the proper scope of a separate opinion. The dispositif cannot be disemboweled from the Court's opinion as expressed in its motivations. It surely cannot be that just because the dispositif rejects the claims, it is permissible for a dissenting judge to give his reasons why the claims should be upheld in whole or part. The content of the judgment must be obtained from reading together the decision and the reasons upon which it is based. The claims are dismissed for particular assigned reasons and on a specific ground. It is to these reasons and this ground, it seems to me, that in principle all separate opinions must be directed, not to wholly unconnected issues or matters.

28. It would seem inconceivable that a judge who concurs in the dispositif should in a separate opinion be free to go beyond considerations germane to the actual decision made by the Court and its motivations. In the present cases he would, of course, be free to advance another ground of the same order as that on which the Court's decision rests which would separately justify it, or other related reasons which might go to support it. But it would hardly be justifiable for such a judge to proceed further into the merits, expressing his views on how he thinks the Court should or would have pronounced upon the whole complex of questions centering around different provisions of the Mandate, for example Articles 2 and 6 thereof, had the Court not reached the decision it actually did.

29. here is however no warrant to be found in Article 57 of the Court's Statute which would leave it free for a dissenting judge to do this but not a concurring judge. They both stand upon an equal footing. The dispositif and a judge's vote thereon, for or against, could not, in itself, affect the proper limits within which any separate opinion under Article 57 may be delivered.

30. In the present cases the questions of merits that arise can themselves be divided into two categories, namely questions of what might be called the ultimate merits and certain other questions which, though appertaining to the merits, have an antecedent or more fundamental character, in the sense that if decided in a certain way they render a decision on the ultimate merits unnecessary and indeed unwarranted. As the Judgment States, there are two questions having that character—that of the Applicants' legal right and interest (which is the basis of the Court's decision) and that of the continued subsistence of the Mandate for South West Africa.

31. It would be entirely proper for a judge who votes in favour of the dispositif to base a separate opinion wholly or in part upon the second of those two questions. He would not be going outside the [p 57] order of question considered by the Court, namely that of antecedent issues on merits operating as a bar to all the Applicants' claims, he would not have attempted to pronounce on the question of ultimate merits, necessarily excluded and rendered irrelevant by the Court': Judgment.

32. To the extent that any separate opinion, whether concurring or dissenting, goes outside the order of the question considered by the Court, it is my view that the opinion ceases to have any relationship with the judgment of the Court, whatever the means may be by which such a relationship or link is sought to be established—it ceases therefore to be an expression properly in the nature of a judicial expression of opinion, for, as has been already indicated, it is only through their relationship to the judgment that a judicial character is imparted to individual opinions.

33. In my view, such an opinion, to the extent it exceeds these limits, ceases to be a separate opinion as contemplated by the Court's Statute and Rules since it expresses views about matters for which the judgment of the Court does not provide the basis necessary for the process of agreement or disagreement which is the sole legitimate raison d'être of a separate opinion.

34. I am not persuaded that the views I have expressed are in any sense invalidated if it be that on one or two occasions this or that judge has, in some manner, not acted in conformity therewith. Action which is impermissible does not become permissible because it may have been overlooked at the time or no objection taken. The correct path to follow remains the correct path even though there may have been occasional straying from it.

35. These views must dictate my own action. However I might agree or disagree with the views expressed by any individual judge in a separate opinion in relation to the complex of questions both of law and fact centering around Articles 2 and 6 of the Mandate and certain other articles thereof, I would not, in my considered view, be entitled to express any opinion thereon. Were I to do so I would be expressing purely personal and extra-judicial views contrary to what I think is the object and purpose of Article 57 of the Statute, and contrary, in my view, to the best interests of the Court.

36. And what it is not permissible or proper to do in a separate opinion, it is certain would be impermissible and improper to do in a declaration.

37. I associate myself unreservedly with the Court's Judgment, and, having regard to the views herein expressed, have nothing to add thereto.

Judge Morelli and Judge ad hoc van Wyk append Separate Opinions to the Judgment of the Court.[p 58]

Vice-President Wellington Koo, Judges Koretsky, Tanaka, Jessup, Padilla Nervo, Forster and Judge ad hoc Sir Louis Mbanefo append Dissenting Opinions to the Judgment of the Court.

(Initialled) P.C.S.

(Initialled) S. A.

[p 59] SEPARATE OPINION OF JUDGE MORELLI

[Translation]

1. I wish to give the reasons why, in my view, the Court's 1962 Judgment on the preliminary objections was no bar to the rejection of the claim on the merits on the ground of its not being based on substantive rights pertaining to the Applicants.

It is my view that a judgment on preliminary objections, particularly a judgment which, like the judgment in question, dismisses the preliminary objections submitted by a Party, is final and binding in the further proceedings. Its binding effect is however confined to the questions decided, and these can relate only to the admissibility of the claim or the jurisdiction of the Court.

On the other hand, the Court's reasoning in deciding a question submitted to it in the form of a preliminary objection is devoid of any binding effect. This limitation on the binding effect of the judgment applies to all the reasons for the decision, whatever their nature, whether of fact or of law, procedural or touching on the merits. Those touching on the merits of the case must be denied any binding effect for an additional reason; since, under Article 62, paragraph 3, of the Rules of Court, the filing of a preliminary objection suspends the proceedings on the merits, it is not possible for a question concerning the merits to be decided with final effect in a judgment on preliminary objections.

2. The 1962 Judgment requires interpretation to elucidate the exact scope of the decision on the question submitted to the Court in the third preliminary objection. In particular it is necessary to ascertain whether it was the Court's intention in dismissing that objection to hold the right to institute proceedings under Article 7 of the Mandate to be independent of any substantive right, in the sense that an applicant might avail himself of it without being required to assert the existence of a substantive right of his own. On this construction it would be sufficient for the applicant to rely on an obligation of the mandatory irrespective of whether the obligation were owed to the applicant or to some other person or persons. Thus the action would be a sort of actio popularis, and the jurisdiction exercised by the Court would be of the nature of a jurisdiction simply to declare the law objectively.

The decision by which the 1962 Judgment held, according to this interpretation, that the Members of the League of Nations had the right to seise the Court in respect of the Mandatory's obligations relating [p 60] to the inhabitants of the Territory, irrespective of whether the applicant possessed any substantive right, would be a decision concerning the characterization of the action, conceived of as legitimately brought by the Applicants in the present case. By such a decision the Court would have settled a purely procedural question relating, on the one hand, to the Applicants' right to institute proceedings and, on the other hand, to the Court's jurisdiction. The decision would not have touched on the merits of the case at all. The Court would have said nothing about the existence of any substantive rights pertaining to the Applicants. The Court would simply have found that the existence of such rights was irrelevant not only to its jurisdiction, but also to the duty with which it had been entrusted. According to this interpretation that duty was to establish the existence, not of rights vested in the Applicants, but rather of obligations incumbent on the Mandatory, regardless of whether they were owed to the Applicants or to some other person or persons. Having regard to the purely procedural character of the question which, according to this interpretation, would have been decided by the 1962 Judgment, the way in which this question was disposed of would be final and binding. In the first place, therefore, it would not in the merits phase of the proceedings have been possible to dispute the Court's jurisdiction on the ground that the provisions of the Mandate relating to the inhabitants of the Territory did not confer any individual rights on the Applicants. In the second place, the Court would have been bound by the 1962 Judgment's characterization of the Applicants' action. In other words, in order to decide the merits, the Court would have had to establish the existence or non-existence, not of rights pertaining to the Applicants, but rather of obligations owed by the Mandatory, whether to the Applicants or to some other person or persons. The question of the present existence for any particular person or persons of rights under the Mandate would have been open to examination only in so far as the answer to this question might have an indirect influence on the question of the existence of obligations owed under the Mandate and thus of the subsistence of the Mandate itself.

4. The 1962 Judgment, particularly as regards the third preliminary objection, is far from easy to interpret. Any possibility of construing the decision on that preliminary objection on the lines of the above hypothesis must however be excluded. To read the decision in that way would be, not to interpret it with a view to ascertaining the Court's real intention, but rather to modify and systematize it with a view to fitting it into a particular logical construction.

There is in fact nothing in the Judgment to show that it was the Court's intention to admit the concept of actio popularis as a general proposition or to apply it to this case. There is nothing in the Judgment to the effect that to establish whether the claim is well-founded it is not necessary to ascertain whether it is based on rights pertaining to the Applicants.

On the contrary, the 1962 Judgment confines itself to declaring that the dispute brought before the Court is a dispute within the meaning of [p 61] Article 7 of the Mandate, without purporting to characterize the Applicants' action in any particular way.

Far from excluding the necessity of a right pertaining to the Applicants for the claim to be able to be regarded as well-founded, the 1962 Judgment explicitly refers to the legal right or interest of the Members of the League of Nations in the observance by the Mandatory of its obligations. With reference to Article 7 of the Mandate, the Court said:

"The manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest 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." (I.C.J. Reports 1962, p. 343.)

This passage seems to indicate some confusion between, on the one hand, the right to institute proceedings, the only right of Members of the League of Nations under Article 7, paragraph 2, of the Mandate, the provision to which the Court is referring, and, on the other hand, substantive rights, which appear to be correctly designated by the reference to a legal right or interest in the observance of its obligation by the person owing the obligation.

However, whatever the criticism to which the Judgment may be open in connection with this confusion, it is quite clear that any possibility of taking the decision on the third objection to mean that it is not necessary to establish a substantive right pertaining to the Applicants is totally excluded by this very confusion. Once it is established that the Judgment did not draw any distinction between the right to institute proceedings and substantive rights, it becomes impossible to extract a diametrically opposite meaning from the Judgment, namely not only that the right to institute proceedings is quite separate from substantive rights, but also that it is so completely independent of any substantive right that the Court could uphold the claim as well-founded even if it were not based on a substantive right vested in the Applicants.

5. There are other reasons which also rule out any possibility of interpreting the 1962 Judgment in this way.

Article 7 of the Mandate deals with the case of a dispute arising between the Mandatory and another Member of the League of Nations, and the need for the existence of a dispute to enable the Court to be seised is recognized in the Judgment. It is precisely in order to establish that this condition, laid down as a sine qua non by Article 7 of the Mandate, is fulfilled in this case that the Judgment begins by seeking to demonstrate the existence of a dispute between the Parties (I.C.J. Reports 1962, p. 328); then, in connection with the third preliminary objection, the Judgment finds that the dispute in question is a dispute within the meaning of Article 7 of the Mandate. [p 62]

However, if Article 7 of the Mandate had conferred on Members of the League of Nations the right to institute proceedings for the protection of substantive rights not pertaining to them, there could be no reason for Article 7 making the institution of such proceedings dependent on the existence of a dispute to which the State desiring to seise the Court must be a Party. The requirement, clearly upheld by the 1962 Judgment, that there should be a dispute between the applicant and the Mandatory precludes the possibility of a right to institute proceedings under Article 7 of the Mandate being characterized as an actio popularis, or of its having been so characterized by the 1962 Judgment. The need for there to be a dispute between the applicant and the Mandatory requires by implication that there should be a conflict of interest between the parties, whatever the nature of those interests. Having regard, on the other hand, to the legal character which must be possessed by the dispute, as appears from the reference in Article 7 to the legal rules contained in the provisions of the Mandate, it follows that the applicant must be able to rely on a right given to him as a means of protecting his interest.

5. For it to be possible to seise the Court, Article 7 of the Mandate requires not only that there should be a dispute between the applicant and the Mandatory, but also that such a dispute should be one that cannot be settled by negotiation. This requirement also was recognized in the 1962 Judgment, the final section of which, concerning the fourth preliminary objection, is devoted to showing that this requirement is satisfied in this case.

By its reference to a dispute which "cannot be settled by negotiation" Article 7 clearly envisages a dispute which is inherently capable of being settled by negotiation between the parties, but one which negotiation has in fact failed to settle. This interpretation of Article 7 is clearly upheld by the Judgment. After finding that negotiations had really taken place, the Judgment draws the conclusion "that no reasonable probability exists that further negotiations would lead to a settlement" (I.C.J. Reports 1962, p. 345).

Now it would not be possible to find the dispute to be one inherently capable of being settled by negotiation between the Parties if it had first been accepted that the Applicants could seise the Court by means of a claim based on rights vested not in them but in other persons. It is quite obvious that the Applicants would have been in no sort of control of such rights, and this would have been a complete bar to the possibility of the dispute being settled by negotiation between the Applicants and the Mandatory. Thus, by finding the dispute to be one inherently capable of being settled by negotiation between the Parties, the 1962 Judgment necessarily held that the Applicants had a right of action only if they could rely on a substantive right of their own.

6. It must be added that it was not possible for the 1962 Judgment [p 63] to depart from the terms of the claim, and there is no indication that there was any such intention.

In paragraph 9 of the Applications the Applicants state that, in the dispute which they maintain to exist between them and South Africa, they have continuously sought to assert and protect their "legal interest in the proper exercise of the Mandate" by disputing and protesting the violation by South Africa of its duties as Mandatory. The Applicants add that during the negotiations which they assert to have taken place, they exhibited at all times their "legal interest in the proper exercise of the Mandate". They conclude by declaring that they instituted the proceedings for the very purpose of protecting their legal interest in the proper exercise of the Mandate.

It is thus the legal interest, or right, of the Applicants in the proper exercise of the Mandate which constitutes the causa petendi of the claim. It was thus on the claim as characterized by such a causa petendi that the Court had to give its decision. Nothing to the contrary is to be found in the 1962 Judgment.

7. An analysis of that part of the 1962 Judgment which relates to the third preliminary objection leads to the conclusion that the decision represented by the dismissal of that preliminary objection amounts solely to a finding that the dispute submitted to the Court, held by the Judgment to exist, was a dispute within the meaning of Article 7 of the Mandate. This decision does not in any way concern the characterization of the action provided for by that Article and utilized by the Applicants. In particular this decision does not give such action the quite unusual characterization according to which it could be utilized without the need for the applicant to rely on a substantive right of his own.

It follows that in the merits phase of the proceedings the Court was completely unfettered with regard to the question of whether it was necessary for the Applicants to have a substantive right in order that the claim might be upheld.

Such a question could only have been decided in the affirmative. In the first place, such a decision would have been in accordance with the normal characterization of an international action. Secondly, it would have been required, for the reasons set out above, by the actual terms of Article 7 of the Mandate, which stipulates that, for it to be possible to seise the Court, there must be a dispute between the applicant and the Mandatory which is inherently capable of being settled by negotiation between the parties. Thirdly, it was not open to the Court to depart from the wording of the Applications, by which it had been seised of a claim based on an alleged right of the Applicants in the proper exercise of the Mandate.

In connection with this last point it must be observed that the Court's jurisdiction in the present case is founded on Article 7 of the Mandate, which refers to any dispute "relating to the interpretation or the appli-[p 64] cation of the provisions of the Mandate". Now, in respect of a jurisdictional clause in a treaty which refers, like Article 7 of the Mandate, to disputes relating to the interpretation or the application of the provisions of the treaty, it is not sufficient, for a dispute to be held to be one as envisaged in that clause, for a party to rely in any way whatever on any provision whatever of the treaty; on the contrary, a party must assert an individual right under the provisions of the treaty (see the considerations developed in this connection in my separate opinion in Northern Cameroons, I.C.J. Reports 1963, pp. 145-146).

It follows that if, contrary to the actual terms of the Applications, it were found that in this case the claim had been submitted without reference to any right of the Applicants, the Court ought, rather than rejecting the claim on the merits, to have found that it lacked jurisdiction. This would have been possible even in the merits phase of the proceedings, since it is a question which, although relating to the jurisdiction of the Court, was not examined in the Judgment on the preliminary objections.

8. Since the claim could be upheld only if a substantive right pertaining to the Applicants were found to exist, it was necessary to consider whether the provisions of the Mandate relating to the inhabitants of the territory confer rights on Members of the League in their individual capacities.

This is a question which belongs entirely to the merits and one therefor which could not in any way be prejudged by the 1962 Judgment. Hence no express or implied finding purporting to decide such an issue which it might be sought to discern in that Judgment would have been in any way binding on the Court in its Judgment on the merits.

In my view this question could only be decided in the negative, and this, in its Judgment on the merits, the Court has done on the basis of very detailed, even superabundant reasoning which, as a whole, carries complete conviction.

In fact the provisions of the Mandate concerning the administration of the territory and the treatment of its inhabitants envisage interests which do not belong to the various States Members of the League of Nations in their individual capacities but are rather collective interests, that is to say interests belonging to all the States Members jointly.

These collective interests are not protected by the provisions in question by means of rights conferred on the different States concerned, so that each of those States could individually require the prescribed conduct; this would give rise to the possibility of conflicting demands on the part of two or more States all relying on the same provision of the Mandate. Such an eventuality must be ruled out by the very fact that the right is conferred not on the States Members in their individual capacities, but either on the League of Nations as a single person distinct [p 65] from its component States, or if the League of Nations is not accepted as having legal personality, then on the States Members as a group and not in their individual capacities. Under the second of these two concepts it would be a right the exercise of which is organized in a certain way, so that it may be exercised by its holders only collectively, that is to Say through corporate organs.

It follows that no State Member derives any right in its individual capacity from the provisions of the Mandate concerning the administration of the territory. Consequently it is not open to any State Member, on the basis of those provisions, to make demands on the Mandatory which might possibly be in conflict with the view taken by the League organs.

9. Once it was established that the claim could not be based on rights pertaining to the Applicants, the Court was bound to reject it. The rejection is grounded on the Applicants' lack of standing.
Standing in this case means the possession by one person rather than another of the substantive right relied on in the proceedings. It is thus substantive and not procedural standing. Lack of such standing must necessarily entail rejection of the claim on the merits and not a finding of inadmissibility. For a finding that the Applicants are not the holders of rights corresponding to any obligations owed by the Mandatory under the provisions of the Mandate relating to the administration of the territory amounts to a declaration that the claim is for that reason not well-founded.

Lack of standing on the part of the Applicants is only one of the reasons on which the rejection of the claim could have been grounded. Having rejected the claim on the ground of lack of standing the Court had no need to go into other possible grounds.

One of the grounds on which the claim could also have been rejected is the non-existence of obligations owed by the Mandatory, possibly because of the lapse of the Mandate. Such a ground might even be considered as more radical in nature than the non-existence of rights pertaining to the Applicants; in other words, it might be considered that the question of the existence of obligations owed by the Mandatory is a preliminary question with respect to the question of whether such obligations, if found to exist, are owed to the Applicants or to some other person or persons. For it might be considered that it is only in respect of an actual existing obligation that it is possible to enquire into the identity of the holder of the rights corresponding to the obligation.

It must however be observed that as between the various questions all of which concern the merits, there is no strict order of logic; the order to be followed in any particular case in dealing with the various questions of merits is dictated rather by reasons of what might be called economy, which counsel the use of the simplest means of reaching [p 66] the decision. It was thus perfectly open to the Court, in this case, to begin by examining the question of standing in relation to any rights which might exist on the assumption that South Africa still owes certain obligations under the Mandate.

In adopting this order and finding that the Applicants have no standing, the Court has followed an as it were hypothetical line of reasoning. However, the decision to which it has led the Court, namely the rejection of the claim on the merits, is an absolute and not a hypothetical decision. The Court has found the claim to be not well-founded, even if it were possible to hold that obligations are owed by South Africa under the Mandate, because, in that event, the rights corresponding to any such obligations would not belong to the Applicants.

(Signed) Gaetano Morelli.

[p 67] SEPARATE OPINION OF JUDGE VAN WYK

General Grounds for Dismissing Applicants' Submissions

I agree that the claim should be dismissed and I agree with the reasons stated in the Judgment. There are however several further and alternative grounds for dismissing the claim; and although I fully share the view of those members of the Court who, while agreeing that these grounds exist hold that once a court has found a general ground of a fundamental character for dismissing a claim, neither it, nor any judge, should proceed to state what its judgment, or his opinion, would have been had such ground not existed, I nonetheless believe that it would be unrealistic in the particular circumstances of this case if at least one judge did not deal with some of those further and alternative grounds from the standpoint which I adopt. Before doing so, however, I wish to make a few observations with regard to the Judgment.

2. It is true that a great deal of the reasoning of the present Judgment is in conflict with the reasoning of the 1962 Judgment with regard to the first three preliminary objections (particularly the second)—so much so that the inescapable inference is that in 1962 the Court assumed a jurisdiction it does not possess—but these considerations cannot in any way preclude the Court from now basing its judgment on the merits on its present reasoning. The Court is not bound to perpetuate faulty reasoning, and nothing contained in the 1962 Judgment could constitute a decision of any issue which is part of the merits of the claim.

3. The mere fact that a provision confers competence on a court to adjudicate upon disputes relating to certain matters at the instance of particular States, obviously cannot have the effect of conferring substantive legal rights or interests in respect of such matters on such States. Thus, for example, the acceptance of this Court's jurisdiction by the Netherlands—which is typical of several acceptances—is, with exceptions therein indicated, "in relation to any other State ... in all disputes . . .". This acceptance confers competence on this Court to adjudicate, at the instance of any State complying with the prescribed conditions, upon any dispute between such a State and the Netherlands. This would include any dispute relating to the interpretation or application of the provisions of any treaty. But whether such a State has a legal right or interest in the subject-matter of any such dispute, i.e., a right or interest upon which a judgment in its favour could be based, [p 68] is a completely different matter. The answer to such a question is not to be found in this acceptance of the Court's jurisdiction, but depends on the interpretation placed by the Court on the provisions of the particular treaty upon which the claim is based. Such an issue is not part of the jurisdictional issue, but constitutes an integral part of the merits of the dispute, which can only be resolved after the Court has upheld the right of the Applicant to seise it. These two matters, i.e., the jurisdictional and the merits, cannot be dealt with simultaneously.

If any State should contend that the acceptance of the Court's jurisdiction by the Netherlands confers on it substantive legal rights or interests in respect of any particular matter, the Court will first decide whether it has jurisdiction in terms of the acceptance of jurisdiction by the Netherlands; and, only after having found that it has the necessary competence, will it consider the merits of such a contention.

Some confusion has resulted in this case from the fact that the same provision on which the Court's jurisdiction is founded is also alleged to constitute the source of the Applicants' substantive legal rights on which their claim is based. It should be appreciated that where a provision is alleged to serve such a dual purpose, only the jurisdictional aspect thereof can be considered at the preliminary objection stage. The existence of substantive legal rights is part of the merits, and must accordingly be determined at the merits stage of a case, and this is so, even if the interpretation of a jurisdictional clause is involved. It follows that if in 1962 this Court, per incuriam, or for any other reason, dealt with the Applicants' alleged substantive rights or interests, its statements with regard thereto cannot now prejudice its decision at this—the merits—stage.

4. The question of Applicants' legal right or interest in the claim not only arises generally—as happens at the merits stage of every case of this kind—but actually constitutes an important sub-issue for several specific submissions of the Applicants. The issue raised in their Submission No. 1 is whether the Mandate is still in force, and one of the questions bearing on this is the legal effect of Article 7 (2), particularly whether it conferred any substantive legal rights or interests on members of the League FN1. Another issue included in the merits (by Applicants' Submissions Nos. 3 and 4) is on what basis, if any, Article 2 (2) of the Mandate was intended to be justiciable, and here again the aforesaid question arises.

--------------------------------------------------------------------------------------------------------------------FN1 See, e.g., Counter-Memorial, Book II, Chap. V, Part B.
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5. There is no substance in the contention that the Court is precluded from considering whether the Applicants have a legal right or interest in the claim merely because this issue was not specifically raised in the Respondents' submissions. Even if Respondent did not raise that question the Court would nonetheless be bound to determine whether the Applicants have a legal right or interest in the claim before considering the [p 69] ultimate merits; but in any event this issue is embraced by the Respondent's submissions. In the Counter-Memorial, the Rejoinder and the oral proceedings the Respondent disputed not only the Applicants' legal right or interest in respect of the specific submissions referred to above, but did so also in regard to the claim generally FN1. In the final submissions the Respondent expressly claimed that upon the basis of the statements of fact and law set forth in the pleadings and oral proceedings the Applicants' submissions should be adjudged and declared unfounded, and that no declaration be made as claimed by the Applicants. In these circumstances no reasonable person could have been unaware of what the submissions were intended to convey.

---------------------------------------------------------------------------------------------------------------------FN1 On 13 April 1965 Respondent's Counsel made the following submission:

“.. . by reason of the considerations arising from the limited scope of Article 7 (2) of the Mandate, or of the lapse of that Article, the conclusion is arrived at that all the claims are inadmissible and the result would again be rejection of... all the Applicants' . .. submissions."
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6. As already stated the 1962 Judgment could not decide any issue forming part of the merits. This conclusion is not only in accordance with general principles and the rules of this Court, but also flows from the 1962 Judgment itself.

7. Reference has already been made to Article 62, paragraph 3, of the Rules of this Court which provides in express terms that on the filing of preliminary objections the proceedings on the merits shall be suspended. In these cases there was actually an Order dated 5 December 1961 formally recording that by virtue of these provisions the proceedings on the merits were suspended.

The basic consideration that a preliminary objection is not intended to, and is not capable of giving rise to a binding judgment on the issues of merits involved, has been recognized in several decisions—see Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, page 10; and in the Polish Upper Silesia case, P.C.I.J., Series A, No. 6, page 15, this principle was formulated as follows:

".. . the Court cannot ... in any way prejudice its future decision on the merits"

and—

"Even if this enquiry involves touching upon subjects belonging to the merits of the case ... nothing which the Court says in the present judgment can be regarded as restricting its entire freedom to estimate the value of any arguments by either side on the same subjects during the proceedings on the merits."

It is in any event highly improbable that the Court could have intended to make any decisions on the merits when dealing with an interlocutory matter relating to jurisdiction. A court of law cannot be presumed to have intended to disregard its own rules and well-established principles of law.

[p 70]Moreover, ex facie the Court's 1962 Judgment, it did not intend deciding any part of the merits, for the aforesaid Order recording the suspension of the proceedings on the merits is actually quoted in that Judgment.

It will be observed that the Court's conclusion and the operative part of the 1962 Judgment respectively state that "the Court is competent to hear the dispute on the merits", and that it "finds that it has jurisdiction to adjudicate upon the merits of the dispute". The word "dispute" obviously meant the issues as encompassed in the Applicants' submissions as set out in full in the Judgment at pages 324-326.

8. While it is true that the Court remarked in the course of its Judgment that "the Mandate as a whole is still in force", this remark could not possibly have been intended to constitute a decision of any of the issues embraced by Submission No.1 or 2 or any other part of the merits. The preliminary objections were argued on the assumption that the Mandate was still in force FN1, and even a preliminary finding on this matter was therefore not necessary. Moreover, the Court could not have intended saying that ail the original provisions of the Mandate were still in force, albeit in an amended form, because not only did it carefully avoid dealing with the issue whether Article 6 still applied, but a great deal of its reasoning on Article 7 suggests that, had it been called upon to decide whether Article 6 still applied, as is contended in the Applicants' Submission No. 2, it would have held that it had ceased to apply FN2.

---------------------------------------------------------------------------------------------------------------------FN1 Preliminary Objections, pp. 299, 359; Oral Proceedings 1962, pp. 4, 16-17,49: 52-54, 336-337; Counter-Memorial, Book. II, p. 166. The following statement at page 332 of the 1962 Judgment is accordingly not correct: "The Respondent contends that it [the Mandate] is not in force . . ." Also incorrect is the statement that follows immediately thereafter (and which incidentally contradicts what has just been quoted): "It is argued that the rights and obligations under the Mandate in relation to the administration of the Territory of South West Africa being of an objective character still exist . . ." (The rest of the sentence also constitutes an incorrect representation of Respondent's argument, but in another respect.)
FN2 See paragraphs 46 to 49 of the Chapter of this opinion dealing with Submissions 2, 7 and 8.
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At no stage did the Court in 1962 specifically deal with the problems arising from the disappearance of the League's supervisory organs; and no reference is made at any stage to the suggestion that after April 1946 supervisory functions were to be exercised by the United Nations. All references to administrative supervision were omitted from the quotations from the 1950 Opinion FN3.

------------------------------------------------------------------------------------------------------------------FN3 Compare quotation at pp. 333 and 334 of the 1962 Judgment with full statement in 1950 Opinion, p. 136.
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The Court must have realized in 1962 that if the Applicants' first submission failed, all the submissions had to be dismissed. It could not have intended that if this happened any part of its Judgment should have any further application; otherwise one would have the absurd [p 71] result that a party who has in the final judgment been held to have no legal right or interest in a claim nonetheless has, by virtue of an interlocutory decision, a judgment in its favour in respect of that claim or part thereof.

9. Inasmuch as the voting in 1962 was eight to seven it follows that, apart from all other considerations, no statement not made with the approval of ail the eight majority judges and not intended by all those judges to constitute a decision could have effect as a decision of the Court.
It is therefore relevant to observe that it appears from the separate opinions of Judges Bustamante, Jessup and Sir Louis Mbanefo that none of them intended deciding any part of the merits.

10.Judge Jessup's opinion speaks for itself:

"But if the challenge to the existence of a 'dispute' in its legal sense is raised in a preliminary objection to the jurisdiction of a tribunal, the question is how deeply the Court must probe into the facts and law in order to determine whether there is a 'dispute'.

Suppose, for example, State A alleges in a diplomatic note to State B that State B has violated a commercial treaty of 1880 between A and B. B in reply affirms that the treaty is no longer in force. After futile negotiations, A submits the case to an international court in accordance with the terms of a treaty for pacific settlement concluded by B with A. This treaty for pacific settlement contains the ordinary provision that the parties agree that disputes concerning legal rights may be submitted to an international court by either party. B contends that the court has no jurisdiction since there is no 'dispute' within the meaning of the treaty for pacific settlement because A bases its contention on a treaty which is no longer in force. The adjudication of the question whether the treaty is in force and therefore whether A's case rested upon a legal right, is a question for the merits and not a question to be settled on a plea to the jurisdiction. B in effect admits there is a 'dispute' but asserts that A's substantive position is unsound. It may be possible to imagine a case where the allegation of a legal right was so obviously absurd and frivolous that the Court would dismiss the application on a plea to the jurisdiction, but such a situation would be rare. In any event, it is not the situation in the instant cases.

In the instant cases, it is helpful to look first at the second characteristic of the 'dispute' which has been noted above, i.e., that it must relate to the interpretation or the application of the provisions of the Mandate. I do not see how it can be seriously contended that this condition is not ful6lled since it is sufficient basis for the jurisdiction of the Court if any of Applicants' contentions are so related. On the face of those contentions, and [p 72] before the Court has examined them on their merits, the Court must find that, assuming there is a 'dispute', it is one which relates to the interpretation or application of the provisions of the Mandate."

The fact that the learned judge, after having made these remarks, made some observations on the merits of the dispute is irrelevant, because he could not possibly have intended to decide an issue which he had just stated could only be dealt with at the merits stage of the cases.

11. That Sir Louis Mbanefo had no intention of deciding any part of the merits appears from the first paragraph of his separate opinion:

"I agree generally with the reasons given in the Judgment of the Court, but I feel that a great deal of the argument on the first three Preliminary Objections in the Judgment goes to the merits of the case. The Court is concerned essentially at this stage with the question of jurisdiction. The way in which the claims of the Applicants and the Preliminary Objections of the Respondent are framed make it difficult for the Court to avoid touching on the merits of the case. But that notwithstanding, I feel that emphasis should be on a line of reasoning that deals essentially with the issue of jurisdiction; and the opinion which I now give is intended to supplement the reasoning of the Court on the First, Second and Third Preliminary Objections."

12. There is at least one further reason which, apart from those advanced in the Judgment, would justify a conclusion that the Applicants have no legal right or interest in the claim, namely that, whatever rights the Applicants may have had under the provisions of the Mandate, these lapsed on the dissolution of the League. On that date, either the whole Mandate lapsed or at least those provisions, including Article 7, which depended on the existence of the League ceased to apply; and, in any event, Applicants could not retain any rights held by them as members of the League after terminating such membership. In either event all the submissions, including Submission No.1, must be dismissed.

It is common cause that Article 7 can no longer apply, and Applicants can no longer hold any rights they may have had as members of the League, unless the words "Member of the League of Nations" in the Mandate are given a meaning which includes ex-members of the League who were members at the time of its dissolution. In 1962 the Court advanced three reasons for not giving these words their ordinary and natural meaning FN1. The first two are in direct conflict with the reasoning of the present Judgment; the third depends on the validity of the first [p 73]
two, and is in any event unfounded. I shall attempt to avoid as far as possible a repetition of what is already stated in the Judgment.

---------------------------------------------------------------------------------------------------------------------FN1] It seems unavoidable that before rejecting these reasons all possible sources of evidence on which they could have been based should be examined.
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13. The first of these reasons is recorded in the second paragraph on page 336 of the 1962 Judgment which commences as follows:

"In the first place judicial protection of the sacred trust in each Mandate was an essential feature of the mandates system."

This statement is bare assertion for which no support is to be found in the relevant instruments, in the travaux préparatoires, in the subsequent conduct of the Parties, or in any other possible source of evidence. The truth is that the concept of judicial protection of the sacred trust did not exist, and this explains why nothing to that effect was said either before or after the signing of the Covenant or the adoption of the Council resolutions which embodied the various instruments of mandate. This paragraph of the 1962 Judgment then proceeded as follows:

"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'. While the faithful discharge of the trust was assigned to the Mandatory Power alone, the duty and the right of ensuring the performance of this trust were given to the League with its Council, the Assembly, the Permanent Mandates Commission and all its Members within the limits of their respective authority, power and functions, as constituting administrative supervision, and the Permanent Court was to adjudicate and determine any dispute within the meaning of Article 7 of the Mandate. The administrative supervision by the League constituted a normal security to ensure full performance by the Mandatory of the 'sacred trust' toward the inhabitants of the mandated territory, but the specially assigned role of the Court was even more essential, since it was to serve as the final bulwark of protection by recourse to the Court against possible abuse or breaches of the Mandate."

In this passage the Court apparently overlooked the fact that Article 22 of the Covenant required in express terms that "securities for the performance of this trust should be embodied in this Covenant", and that there is not a word in the Covenant to suggest that either the individual members of the League or the Court were to play any part with regard to the performance of the trust. There is in any event no evidence to be found anywhere to support the statement that the rights and duties of ensuring the performance of the trust were—in addition to the rights and duties given to the organs of the League—conferred on all the members of the League. It follows that the suggestion that individual members of the League were given powers of administrative supervision over the mandatories is unfounded. The simple truth is that [p 74] the authors of Articie 22 did not conceive of any role for the Court with regard to the mandates system, and that is why the Court is not mentioned in Article 22 of the Covenant.

13(a). As already stated, the Court was mentioned for the first time in connection with the mandates some time after the signing of the Covenant, when a compromissory clause was proposed for the 'B' mandates. But neither at that stage nor at any other stage was there any suggestion to the effect that the Court should be assigned the role of ensuring performance of the sacred trust, or that it should serve as a final bulwark of protection thereof; not a word to this effect, or which may possibly be interpreted as suggesting anything of the kind, was said at any time by anybody. On the contrary, what was said at the time reveals that it was thought that the purpose of the compromissory clause was to provide for disputes relating to national rights being referred to the Court FN1.

--------------------------------------------------------------------------------------------------------------------FN1 To the facts recorded by Judge Sir Percy Spender and Judge Sir Gerald Fitzmaurice in their joint dissenting opinion, South West Africa, I.C.J. Reports 1962, pp. 556-557, I wish to add that before Lord Milner made the remark referred to in the second paragraph of page 557, Lord Cecil had observed that there would be some advantage in withdrawing questions of personal claims by nationals from the sphere of diplomacy—see Recueil des Actes de la Conference de la Paix, Vol. VI A, PP. 348-349.
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13 (b). If the Court had been intended to fulfil this special role of protection of the sacred trust, a provision to that effect would have been embodied in the Covenant, and it would not have been left to the Council to include this "super security" in the mandate declarations. There could have been no certainty that all the members of the Council— including the mandatories—would have approved such a provision, and without the requisite unanimity the Council could not function. Moreover, the Council's powers were confined to defining the "degree of authority, administration and control'' of the mandatory, and it could have had no power to add to the securities for the performance of the sacred trust since these securities had to be embodied in the Covenant. Furthermore, even supposing that this important provision relating to the Court's special role had been intentionally omitted from the Covenant because it was thought that it would be included in the instruments of mandate, one would have expected that at the time the Covenant was signed some reference to this would have been made. But the facts are that, at the time, the Court was not even mentioned in the discussions. It is perhaps relevant to record that the day before the Versailles Peace Treaty (which included the Covenant) was signed, i.e., on 27 June 1919, the draft mandates were before the Council of Four, but nobody suggested that inasmuch as the Covenant, which was to be signed the next day, did not provide for the judicial protection of the sacred trust, a provision to that effect should be inserted into the mandates. In fact on the very day the Peace Treaty was signed the Milner Commission met in Paris, and yet nobody suggested the inclusion of any provision relating to the Court. It is significant that on this same day the minorities treaty with [p 75] Poland was signed, and this treaty contained a compromissory clause coupled with the "deeming" clause which became a feature of the minorities treaties, but nobody suggested that any similar provision should be inserted in the mandates.

13 (c). Judge Jessup attached some importance in his 1962 opinion to the compromissory clauses in the minorities treaties, particularly in order to establish that in 1920 a State could acquire a legal interest in matters not affecting its own material interests FN1. That this is so is not disputed, but the learned judge overlooked the difference in the wording of the minorities treaties and the mandates. In the first place the minorities treaties contained a deeming clause which provided that a difference of opinion arising out of the provisions of the treaty "shall be held to be a dispute of an international character"; secondly, the right of invoking the Court's jurisdiction was limited to the Principal Allied and Associated Powers and to other members of the Council of the League, and, thirdly, the provision contained no requirement such as the mandates relating to the settlement of the dispute. It should be borne in mind that the minorities treaties were imposed on the defeated nations and new States by the Great Powers. It is incredible that these Powers would have limited the grant of substantive legal rights in the case of these defeated nations and new States to a few States only, but should have voluntarily granted in respect of mandates such rights against themselves to all the members of the League. Judge Jessup rightly remarked in his Modern Law of Nations, 1959, page 89:
--------------------------------------------------------------------------------------------------------------------FN1 Further arguments on this issue advanced by Judge Jessup are dealt with in the Counter-Memorial, Book II, Chapter V B; I do not consider it necessary to deal with them in this opinion.
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"But the minorities treaties were obnoxious largely because they carried the stigma of imposition upon small States by the great powers, who were unwilling to accept like obligations in their own territories."

14. The second reason advanced in the 1962 Judgment for not giving the words "Members of the League" their ordinary meaning was that:

"In the second place, besides the essentiality of judicial protection for the sacred trust and for the rights of Member States under the Mandates, and the lack of capacity on the part of the League or the Council to invoke such protection, the right to implead the Mandatory Power before the Permanent Court was specially and expressly conferred on the Members of the League, evidently because it was the most reliable procedure of ensuring protection [p 76] by the Court, whatever might happen to or arise from the machinery of administrative supervision."

But the fact is that at the time of the establishment of the mandates system the possibility of something happening to the machinery for administrative supervision was not discussed or mentioned at all, and was clearly not even contemplated. The above-cited reasoning of the 1962 Judgment is accordingly also neither warranted nor substantiated by the facts.

15. The third reason given by the 1962 Judgment was that at the final session of the League in April 1946 an agreement was entered into between all the members of the League to continue the different mandates as far as was practically feasible or operable, and therefore to maintain the rights of members of the League itself. The agreement referred to is inferred from this 1946 "dissolution resolution" and "the whole set of surrounding circumstances which preceded, and prevailed at the session". Not only is the alleged general agreement based on inference, but the preservation of the alleged rights of League members individually in respect of Mandates is in turn inferred from this tacit agreement.

In essence these conclusions seem to rest on the proposition that the dissolution resolution was adopted "precisely with a view of averting ... the literal objections derived from the words 'another Member of the League of Nations' ". But this proposition is, with respect, another bare assertion. The facts are that the rights of members of the League, or the possible consequences flowing from the meaning of the words "another Member of the League of Nations", were not discussed or mentioned, expressly or impliedly, directly or indirectly, either before or after the adoption of the said resolution. Nor does the resolution itself make reference to any such matter. There is no evidence of any intention to enter into any agreement relative thereto.

15 (a). In my view there is no substance in any of the reasons advanced by the Court in 1962 for placing "no reliance" on the natural and ordinary meaning of the words "another Member of the League of Nations" in Article 7, and for holding that ex-members of the League retained after the dissolution such rights as they may have had as members of the League.

Judges Bustamante, Jessup and Mbanefo followed in some respects a somewhat different line of reasoning.

16. Judge Jessup first considered the meaning of "Members of the League" in Article 7 of the Mandate for Ruanda-Urundi held by Belgium. After pointing out that in this Article Belgium agreed to the so-called Open Door Principle which, inter alia, forbade Belgium to discriminate in favour of her own nationals and against the nationals of other "Members of the League", the learned Judge remarks:

"It is not apparent why it would be reasonable to Say that while [p 77] it would have been a violation of Belgium's contractual obligation so to discriminate against a French citizen in the matter of a concession on 18 April 1946, the day before the dissolution of the League, Belgium would have been free so to discriminate on 20 April 1946. On the contrary, if Belgium had so discriminated on 20 April France could properly (if diplomatic negotiations failed to result in a settlement) have seized the Court of this dispute concerning the interpretation or application of the Mandate, relying on Article 13 of the Mandate for Ruanda-Urundi (which contains a compromissory clause identical with that in Article 7 of the Mandate for South West Africa), and on Article 37 of the Statute to which both Belgium and France are parties."

The Judge thereupon concludes that if his aforesaid conclusion is sound, the provisions of Article 5 of the Mandate for South West Africa which required the Respondent to allow all missionaries, nationals of any State Member of the League of Nations to enter into and reside in the Territory for the purpose of prosecuting their calling, could not have ceased to apply on the dissolution of the League. He thereupon concludes that the reference to "another Member of the League" in the Mandates was "descriptive of a class" and not "an imperative condition".

The learned Judge thus bases a great deal of his reasoning on the conclusion reached by him on the meaning of "Members of the League" in the Ruanda-Urundi Mandate. But this conclusion is based on hardly any reasoning at all. All we have is the Judge's statement that it is not apparent to him why a contrary result would be "reasonable". He offers no reason why such a result would be unreasonable.

There is no evidence to justify an inference that the authors of the mandates system intended that a State which has ceased to be a member of the League should retain rights conferred on it as a member of the League, and there is nothing unreasonable in a conclusion that a State which has lost the qualification entitling it to the enjoyment of a right, has lost that right. Whenever a right is terminated it would be possible to say that what would have constituted a violation of an obligation on the one day would be permissible the following day, but this is no reason for saying that the right has not come to an end. Instans est finis unius temporis et principium alterius. If France had resigned as a member of the League on 19 April 1946, she would no longer have been entitled to claim any rights under Article 7 of the Ruanda-Urundi Mandate on 20 April 1946. The fact that she still could have done so on 18 April 1946 is entirely irrelevant. The same consequence must have flowed from the termination of membership of the League on 19 April 1946 as would have followed had membership been terminated the day before, or ten years sooner.

In my opinion there is no cogency in the reasons advanced by the learned Judge for his finding that the words "Members of the League" [p 78] were descriptive. His first reason is that it was fondly hoped that the League system would become universal. I fail to see what bearing this hope had on the meaning of these words. Had this hope been fulfilled the words "Members of the League" would have become synonymous with "all States" as long as all States remained members of the League, but even then "Members of the League" could only have meant members of the League.

The maxim cessante ratione legis, cessut ipso lex is completely misapplied by the learned Judge. It is invoked by him to change the provisions of an instrument: to amend Article 7 of the Mandate by substituting "ex-member of the League which was a member at the dissolution of the League" for "Member of the League". The maxim simply means that where the reason for a law ceases, the law itself ceases, and it in no way justifies an interpretation imposing on a State an obligation it did not agree to. There is in any event no justification for the view that the authors of the mandates system intended that the privileges of ex-members should continue after the dissolution of the League. Provision was made for the amendment of the Covenant and the mandates by the organs of the League, and there was accordingly no need for any agreement, express or implied, as to what would happen in the event of the dissolution of the League. Had the issue been raised, the answer would probably have been that it was left to the organs of the League and the mandatories concerned to take such steps as were considered reasonable in the light of circumstances prevailing at the time of such dissolution; but it certainly cannot be said that all the parties would have agreed that the rights of States who were members immediately prior to the dissolution of the League would continue after its dissolution.

I must confess that I am unable to understand the Judge's "frustration" argument. I know of no legal principle which requires that a provision should continue to apply after the conditions for its application have ceased to exist, simply because it would be capable of being complied with if those conditions did still exist or are ignored.

Equally erroneous is Judge Jessup's following approach:

"If the Mandatory claimed the right to limit the privileges to missionaries who were nationals of States which were Members of the League when the League came to an end, the claim would be reasonable and it would avoid any charge that there was imposed on the Mandatory an obligation more onerous than that which it had originally assumed." (Italics added).

If the learned Judge's view that the expression "Member of the League" was descriptive is correct, there would appear to be no reason for limiting the privileges conferred on "Members of the League" to States which were members on the dissolution of the League. This passage—[p 79] and other passages—suggest that the learned Judge thinks that as long as the League existed the words "Member of the League" had their ordinary meaning, but that on the dissolution of the League they became descriptive of States who were members at its dissolution. This means that the same words had different meanings at different periods of time. The learned Judge appears to have lost sight of the elementary principle that all rights and duties under an agreement are determined in accordance with the intention of the parties at the time the agreement is entered into. No party can "claim" rights or privileges not properly derivable from the agreement, and nobody other than a legislature can "impose" duties not agreed to.

The opinion of Judge Jessup further advances the argument that if the elements of the mandates which related to the welfare of the inhabitants survived the League, then the rights of missionaries under Article 5 and the rights of the inhabitants to their services should also have survived the League despite the technical requirement that these missionaries had to be nationals of members of the League. The learned Judge appears to be confusing the Respondent's duties towards the inhabitants under the provisions of the Mandate and the rights conferred on States, members of the League. In any event the survival of those rights, which depended on the existence of members of the League, depends on the meaning of the words "Member of the League"; and the problem arising in regard thereto is exactly the same as that which arises in regard to Article 7. The solution given to it is not made any more valid by first interpreting Article 5, or provisions of other mandates in which the words "Members of the League" appear, as applying to ex-members of the League.

The learned Judge appears to revert to his descriptive test in the following passage:

"After all, these 'Members of the League' were not just concepts, 'ghosts seen in the law, elusive to the grasp'. They were actual States or self-governing entities whose names could be recited. The names of the original Members were listed in the Annex to the Covenant, but it was not a fixed group; it fluctuated as new Members were admitted or as old Members terminated their memberships. Yet at any given moment—as for example the moment of the dissolution of the League—the Mandatory would always have been able to draw up, by names, a list of the States included in the descriptive term 'Member of the League'."

Rights are conferred by the constitution of a Company on its members. These members are not "ghosts seen in the law, elusive to the grasp". They are actual persons, whose names could be recited. The names of the original members appear on a list, but it is not a fixed group; it fluctuates as new members are admitted or as old members terminate [p 80] their membership. At any given moment—as for example the moment before the dissolution of the company—it would always be possible to draw up, by names, a list of those included in the descriptive term "member of the company". This, however, affords no reason for saying that the expression "member of the company" is descriptive in the sense that the rights conferred on members, qua members, continue on termination of membership whether during the lifetime of the company or on its dissolution and liquidation. Whenever it is desired to confer any rights on ex-members of a company, express provisions to that effect are required.

17. Judge Bustamante came to the conclusion that rights conferred on members of the League were not limited to the lifetime of the League but extended to the whole duration of the Mandate FN1. The Mandate does not state that the rights and duties of members will survive their membership of the League. On the contras their rights and duties were held as "Members of the League", and this obviously means that on the termination of their membership their rights and duties as members also terminated. The possibility of the Mandate surviving the League was not contemplated, and there is no justification for inferring that, had it been considered, all the parties, including the Respondent, would have acknowledged that in such a case the rights and duties of members— whatever they were—would continue despite their loss of membership.
--------------------------------------------------------------------------------------------------------------------FN1 It will be recalled that the survival of the Mandate was assumed.
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The learned Judge concedes that the rights of States which voluntarily resigned or were ejected from the League, terminated on the termination of their membership; but he contends that the dissolution of the League was not the result of a voluntary act of its members. He arrives at this conclusion by having regard "to the historical facts which determined the disappearance of the League of Nations". These facts are (according to the learned Judge): (a) that the League was already "greatly weakened" before the Second World War, (b) that it remained "paralysed" for the whole of the war, (c) that the results of the conflict "completely upset international realities" by profoundly modifying the former conformation and distribution of States on which the League of Nations had been based, (d) that the League was already "dead" when it was dissolved, (e) that Articles 77, 79 and 80 of the Charter established the "compulsory character" for the transformation of former mandates into modernized tutelary systems. The expressions "weakened", "paralysed" and "dead" have no known legal connotation in the context in which they are used, but whatever their meanings may be, the fact is that the League of Nations was still in existence as a legal entity, and its members still had the qualification and the rights and duties of members of the League, up to the time of its dissolution. They were[p 81] consequently not powerless. Equally the Charter could have provided for the compulsory transformation of former Mandates into trusteeship agreements, or to use the Judge's words "en régimes tutélaires modernisés"—see International Status of South West Africa, I.C.J. Reports 1950, page 140, where it was held that "the Charter does not impose on the Union an obligation to place South-West Africa under the Trusteeship System".

In any event, even if the provisions of the Charter provided for such compulsory transformation, they were voluntarily agreed to by the members of the League. One cannot voluntarily agree to enter into an agreement and then after having done so contend that it (the latter) was not voluntarily entered into because of the prior agreement.

The members of the League voluntarily dissolved the machinery created for the supervision of the Mandatory, and voluntarily terminated their qualifications as members which was a sine qua non to their holding rights and duties under the Mandate, and members of this Court have no right to disregard the legal effects of these voluntary acts, however much they may dislike them.

18. Sir Louis Mbanefo thought that the rights and obligations embodied in the Mandate "became as it were maintained at the level on which they were on the dissolution of the League".

The reason advanced for this conclusion is that the purpose of the Mandate has not yet been achieved. There is no principle of law to the effect that parties to an instrument cannot lose their rights and obligations until the purpose of the instrument in question has been achieved; nor is there any principle that, if parties voluntarily terminate their qualifications necessary for holding certain rights and obligations, such rights and obligations are nonetheless maintained "at the level" they were on the date of the loss of such qualification.

19. In all the articles of the Covenant except Articles 2, 9, 21 and 24the words "Member(s) of the League" are used. In terms of Article 3the Assembly consists of representatives of "Members of the League", and "each Member of the League" was given one vote. Article 4 provided for the election of "four other Members of the League" to the Council. Article 6 imposed the obligation to contribute to the expenses of the Secretariat on "the Members of the League". Article 7 dealt with the diplomatic privileges of representatives of "Members of the League". Articles 8, 12 and 15 imposed various obligations on "Members of the League". Article 22 dealt with equal opportunities for trade and commerce of "other Members of the League". Article 1 (1) provided which States would be the original "Members of the League". Article 1 (3) provided that any "Member of the League" could withdraw after giving two years' notice. Article 16 (4) provided for declaring a "Member of the League" to be no longer a "Member of the League". It is clear that the expression "Member of the League" was used to mean a State which [p 82] in fact was a member of the League at the time of the application of the particular provision in which it appears.

Any interpretation of this expression in any of these provisions to the effect that States which had never been or had ceased to be members of the League are included would be ridiculous and there appears to be no sound reason for not giving it the same meaning it had in the Covenant, wherever it occurs in the instrument of mandate.

Further Grounds For Dismissing Specific Submissions

Article 6 of the Mandate (Applicants' Submissions Nos. 2, 7 and 8)

1. At the outset I wish to repeat that Article 7 (2) of the Mandate Declaration is the only provision upon which the jurisdiction of this Court could in these cases be founded. The said Article limits such jurisdiction to disputes relating to the interpretation or application of the provisions of the Mandate; i.e., the provisions contained in the Mandate Declaration. It follows that provisions of other instruments may only be considered if they have been incorporated into, or have bearing on the legal effect of the provisions of the Mandate Declaration. Thus, for example, Article 22 of the Covenant is only relevant when considered in conjunction with the provisions of the Mandate Declaration. Divorced therefrom it has no relevance in these proceedings.

2. In my 1962 opinion FN1 I came to the conclusion that Article 6 of the Mandate ceased to apply on the dissolution of the League. I adhere to that opinion.

---------------------------------------------------------------------------------------------------------------------FN1 Judgment on Preliminary Objections (I.C.J. Reports 1962, pp. 575-662).
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My reasons for holding that Article 6 of the Mandate Declaration, and also Article 22, paragraph 7, of the Covenant of the League, no longer apply are briefly se' forth in the following paragraphs.

3. The obligation imposed on the Respondent by Article 22, paragraph 7, of the Covenant and Article 6 of the Mandate Declaration was an obligation to report to a particular body, viz., the Council of the League.

Article 22 of the Covenant of the League provided that to certain colonies and territories, which included German South West Africa, there should be applied the principle that the well-being and develop-[p 83]ment of the peoples of such colonies and territories formed a sacred trust of civilization, "and that securities for the performance of this trust should be embodied in this Covenant". The Article then continued to state that the best method of giving practical effect to this principle was that the tutelage of such peoples should be entrusted to certain advanced nations, and that this tutelage should be exercised by such nations as "mandatories on behalf of the League".

The only securities embodied in the Covenant relative to reporting and accounting by the mandatory are be to found in paragraphs 7 and 9 of Article 22, and they read as follows:

"7. In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge." (Italics added.)

"9. A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates." (Italics added.)

And in the relevant Mandate Declaration the only reference to reporting and accounting is to be found in Article 6, which reads as follows:

"The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council, containing full information with regard to the territory, and indicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4 and 5." (Italics added.)

This duty to make a report to the satisfaction of the Council is hereinafter referred to as the Mandatory's duty to report and account. and the corresponding rights of the Council in that regard are referred to as the Council's powers of supervision.

4. Article 6 of the Mandate Declaration, and paragraphs 7 and 9 of Article 22 of the Covenant of the League, depended for their operation on the existence of the League of Nations, inasmuch as without a League in existence there could not be a Council of the League. The League was dissolved in 1946 and the aforesaid provisions accordingly must as from that date have ceased to apply unless some other body, such as, for example, the General Assembly of the United Nations, was substituted for the Council of the League as the body to which the Respondent had to report and account.

Such substitution could have come about only if:

(a) there exists a principle or rule of international law which provides for such substitution to take effect automatically—i.e., without any question of consent on Respondent's part, or

(b) the Respondent consented to such substitution.

It is now common cause that there is no principle or rule of international [p 84] law which could have brought about such an automatic succession FN1. There is certainly no principle to be found in any legal system to the effect that, where the creators of a trust (or anything in the nature of a trust) also create an organ to supervise the administration of that trust, and they themselves thereafter dissolve suck organ without substituting another, a court of law may effect such substitution.
-------------------------------------------------------------------------------------------------------------------FN1 Although the Applicants in earlier stages of the proceedings used such expressions as "automatic succession", "doctrine of succession" and "principle of succession" (Observations on Preliminary Objections, pp. 429, 443 and 445; and see also Oral Argument on Preliminary Objections, p. 302), they intimated in the oral proceedings on the merits that such terminology was ill chosen, and they stated categorically that they did not rely on any "international legal principle of devolution or succession aliunde the Mandate". Not one of the members of the Court in 1962 relied on any principle or rule of succession.
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The only issue to be determined, therefore, is whether Respondent ever consented to such a substitution. It is common cause that no agreement to which Respondent was a party contains any express provision effecting such substitution.

The issue, therefore, really involves an enquiry as to whether Respondent tacitly agreed to such a substitution—i.e., whether any agreement to which Respondent was a party contains an implied term to that effect, or whether Respondent by its conduct tacitly consented to such a substitution.
In this regard only three possibilities arise for practical consideration, viz.:

(i) whether the mandate instrument must be interpreted as embodying an implied term to the effect that Respondent would upon the dissolution of the League become obliged to report and account to another body such as, for example, the General Assembly of the United Nations;

(ii) whether, if the mandate instrument does not contain such an implied term, the Charter of the United Nations embodies such a term;

(iii) whether, in the absence of any such implied term in the aforementioned instruments, Respondent at the time of the creation of the United Nations and the dissolution of the League, or thereafter, by its conduct tacitly consented to such a substitution.

I shall deal separately with these three matters but, before doing so, I wish to restate certain basic principles of interpretation concerning the reading of implied terms into an agreement.

5. The universally accepted basic principle of interpretation, applicable in municipal law and international law alike, is that in the interpretation of all contracts, statutes and instruments one should endeavour to determine the true intention of their authors. An implied term may be read into an agreement only if there arises from the agreement itself, [p 85] and the circumstances under which it was entered into, a necessary inference that, although a suggested term was not incorporated in the agreement in so many words, the parties must have had a common intention that it should apply. A term should only be implied if the evidence reveals that the parties in fact intended it to apply, or if it can confidently be said that had it been suggested to them at the time they would have acknowledged that it fell within the scope of their agreement. It follows that a term cannot be implied if it goes beyond the declared scope and object of an instrument, or would involve radical changes or additions thereto, or would do violence to clear and unambiguous express provisions thereof, or if it is inconsistent with the admissible extraneous evidence relating to the intention of any of the parties. It is not sufficient to find the intention of some of the parties; a term can only be implied if it reflects the intention of all the parties. See South West Africa cases, I.C.J. Reports 1962, pages 576-591.
6. I now proceed to consider whether the Mandate Declaration, read with Article 22 of the Covenant of the League, contains any such implied term, i.e., that on the demise of the League an organ or organs of a future international organization would be vested with the powers of the organs of the League with regard to mandates, and that the mandatory would be obliged to report and account to such an organ or organs.

(a) Would such an implied term do violence to clear and unambiguous express provisions of the Covenant and the Mandate Declaration? The answer is in the affirmative. In terms of paragraphs 7 and 9 of Article 22 of the Covenant and Article 6 of the Mandate the Respondent accepted an obligation to render annual reports to the Council of the League. The words of these provisions are capable of one construction only. They are clear and unambiguous. The Council of the League was an organ of the League specifically provided for by the Covenant, which defined its functions and prescribed its procedures. Thus Article 4 of the Covenant provided:

"1. The Council shall consist of Representatives of the Principal Allied and Associated Powers, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Spain and Greece shall be members of the Council.

2. With the approval of the majority of the Assembly, the Council may name additional Members of the League whose Representatives shall always be members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. [p 86]

2bis. The Assembly shall fix by a two-thirds majority the rules dealing with the election of the non-permanent members of the Council, and particularly such regulations as relate to their term of office and the conditions of re-eligibility.

3. The Council shall meet from time to time as occasion may require, and at least once a year, at the seat of the League, or at such other place as may be decided upon.

4. The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.

5. Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League.

6. At meetings of the Council, each Member of the League represented on the Council shall have one vote, and may have not more than one Representative." (Italics added.)

And Article 5 (1) of the Covenant provided that,

"Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting." (Italics added.)

All these provisions were incorporated by reference in Article 22, paragraphs 7 and 9, of the Covenant, and in Article 6 of the Mandate Declaration. The obligation to report and account was confined by clear and unambiguous language to the Council of the League and did not include an obligation to report and account to any other body. The addition of a new security not embodied in the Covenant and having the effect of substituting an organ of another institution for the Council of the League would undoubtedly constitute radical changes and additions to both the Covenant and the Mandate Declaration.

(c) Moreover, such an implied term would go beyond the declared scope and object of the instruments in question. It is true that the general object of the parties was that the principle should be applied "that the well-being and development” of the peoples of South West Africa "should form a sacred trust of civilization"; but their object was also that this purpose should be achieved in a particular manner, i.e., within the framework of Article 22 of the Covenant. The object was, in a sense, to define the international status of South West Africa, to create an inter-national régime; but an integral part of the definition of the régime, was supervision by the Council of the League. This appears clear not only from the very provisions of Article 22 of the Covenant, but also from the travaux préparatoires, which reveal that the general provisions would not have been agreed to had the Article not contained the specific provisions relating to the methods devised to give practical effect thereto. President Wilson reflected the attitude of the parties at the time when he said: [p 87] "no one should accept the scheme unless he was shown how it was going to work FNl”.

------------------------------------------------------------------------------------------------------------------FN1 Foreign Relations of the United States: The Paris Peace Conference, Vol. III,.pp. 788-789.
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It was with considerable reluctance that the Respondent, New Zealand and Australia agreed to the mandates system devised in Article 22 of the Covenant. On what possible basis can it now be said that their object was to create an international régime which imposed upon them obligations other than those specifically agreed to by them?

Indeed, it was in order to avoid a stalemate that the Respondent and other States were prepared to accept Article 22 of the Covenant as a compromise. The contemporary statements of the South African Prime Minister and others leave no room for doubt that they were agreeing to supervision by the Council of the League only, and not to that of any organ of any other institution. For Australia and New Zealand, Article 22 "represented the maximum of their concession" FN2, and South Africa agreed thereto because, in the words of General Botha, "the League of Nations would consist mostly of the same people who were present there that day, who understood the position .. “ FN3.

--------------------------------------------------------------------------------------------------------------------FN2 Ibid., p. 800.
FN3 Ibid., pp. 801-802.
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(d) The fact that Article 22 was the result of a compromise is in itself, apart from all other considerations, sufficient reason for no treading into the instruments in question, by way of implication, that the Respondent and other mandatories had agreed to obligations of reporting and accounting which they were not asked to agree to, and which would have exceeded what was required to effect the compromise.

In these circumstances it cannot be said that the suggested implied term was contemplated, or that all or any of the parties would have agreed that it fell within the ambit of their general intent had the matter been raised when the Covenant of the League and the Mandate Declaration were agreed to.

(d)The possibility of the dissolution of the League at some future date was not contemplated at the time, and there would, therefore, not have been any agreement or intention as to what would happen to the Mandate in such an event. Had it been suggested at the time that provision should be made for such an eventuality the reaction would probably have been that, inasmuch as specific provision had been made for the amendment of both the Covenant and the Mandate Declarations by, or with the consent of, the organs of the League, it should be left to those organs and the respective Mandatories to do what they considered to be in the best interests of all concerned in the circumstances prevailing at the time of such dissolution.

The possibility that the League would at some future date be dissolved by its members without providing for supervision of the administration of mandates was definitely not foreseen by its founders, and it is impossible to determine what the unanimous reaction, if any, would have been [p 88] had such a possibility been raised. The probability is that their reaction would have been that if they, as Members of the League, were ever to dissolve the League without providing for the transfer of its powers to another organization, those provisions which depended on the existence of the League would simply cease to apply. In the circumstances that would obviously have been their intention. It can, however, be said with certainty that the reaction of some of the parties, including the Respondent, would have been that they were not agreeing to any automatic transfer of the supervisory powers of the League to the organs of an unknown future international organization. They would at least first have required assurances with regard to the constitution of such an organization before agreeing to any such automatic substitution. Had they been told that the constitution of this future international organization would not retain the unanimity rule of the League, there can be no reason to suppose that their consent would nevertheless have been given.

(e) It has been suggested that inasmuch as the League of Nations during its lifetime constituted, or represented, what may be called the "organized international community" (at times expressions such as "family of nations7' or "civilized nations of the world were used instead), and inasmuch as this community is now regarded as being constituted, or represented, by the United Nations Organization, the League should be equated with the United Nations, and thus the way is paved for substituting an organ of the United Nations for the Council of the League as the supervisory body with respect to mandates FN1.

--------------------------------------------------------------------------------------------------------------------FN1 The contentions advanced by the Applicants on the basis of their so-called "organized international community theory" have not been consistent. At one stage in the course of the proceedings Applicants relied on an implication to be read into the Mandate Declaration, which by itself, and without any question of further consent on Respondent's part, caused the United Nations Organization to be substituted for the League as the supervisory body in respect of mandates (vide Reply, p. 320). For the present I am concerned with the "organized international community" theory only in this sense. I shall revert later to the different form which the argument took during the oral proceedings. It is, however, in my view, not without significance that in the ultimate event Applicants found it impossible to maintain the theory in its above sense, and in particular that they no longer contended that a substitution of supervisory organs occurred or could occur without fresh consent on the Respondent's part.
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The fallacies in reasoning along the line of the so-called "organized international community", with the object of establishing a contention that the mandate instrument embodied an implied term such as afore-stated, are legion. It disregards firstly the fact that, although the expression "organized international community" and the other expressions mentioned may in certain contexts serve some useful purpose as being descriptive of a collectivity of States, they have no legal significance whatever. In particular such expressions are not to be understood as conveying that outside or independently of actual international organi-[p 89]zations, constituted by agreement, there exists a legal persona, or an entity of legal significance, known as "the organized international community", etc. Such a notion would be entirely fallacious and mis-leading. Furthemore, the reasoning in question either disregards the legal principle that a party cannot be bound by a suggested term to which it did not agree, or it disregards the fact that the Respondent agreed to the supervision of a particular body only, viz., the Council of the League—an organ composed in a particular manner and regulated by definite and binding rules of procedure—and not to the supervision of an organ of any other body, and would, in any event, almost certainly not have agreed to the supervision of an organ such as the General Assembly of the United Nations had it been asked to do so. It entirely disregards the important differences between the League and the United Nations, particularly the procedural provisions relating to the functioning of their organs, and it disregards the clear proof afforded by a mass of evidence that the parties to the relevant instruments neither intended nor contemplated such a result. The truth is that the authors of the mandates system did not contemplate the possibility that the League would cease to constitute or represent what in a sense may be regarded as the "organized international community" or "the family of nations" or "the civilized nations of the world"; and the question whether the League's functions would be transferred to some future organization constituting or representing what could then be described as the "organized international community", "the family of nations" or "the civilized nations of the world" did therefore not arise. If it should have arisen, the Respondent and many other States would clearly not have conceded that they were agreeing to supervision at some unknown date in the future by some unknown body with an unknown constitution.

(f) In this connection the differences between the League of Nations and the United Nations Organization, referred to above, are of particular significance. I shall deal with them later. At this stage I only wish to emphasize one of them. The obligation to report and account to the Council of the League was substantially different from what an obligation would be to report and account to any organ of the United Nations. By express provision in the Covenant, the Council of the League of Nations had, in respect of its functions concerning mandates, to be assisted by the Permanent Mandates Commission, which was a body of independent experts; whereas there is no corresponding body in the United Nations. The Trusteeship Council of the United Nations, like all other organs of that institution, consists of government representatives of member States. Moreover, whereas the unanimity rule prevailed in the Council of the League, the General Assembly of the United Nations can arrive at its decisions by a bare majority, or in important matters by a two-thirds majority, while in the Security Council seven votes [p 90] (including those of the five permanent members) out of 11 are sufficient FN1. This difference was acknowledged by this Court in South West Africa— Voting Procedure, Advisory Opinion of 7 June 1955 in the following passage:

-------------------------------------------------------------------------------------------------------------------FN1 Since the recent increase in the membership of the Security Council the requirement is nine votes (including those of the five permanent Members) out of 15.
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"The voting system is related to the composition and functions of the organ. It forms one of the characteristics of the constitution of the organ. Taking decisions by a two-thirds majority vote or by a simple majority vote is one of the distinguishing features of the General Assembly, while the unanimity rule was one of the distinguishing features of the Council of the League of Nations. These two systems are characteristic of different organs, and one system cannot be substituted for the other without constitutional amendment. To transplant upon the General Assembly the unanimity rule of the Council of the League would not be simply the introduction of a procedure but would amount to a disregard of one of the characteristics of the General Assembly. Consequently the question of conformity of the voting system of the General Assembly with that of the Council of the League of Nations presents insurmountable difficulties of a juridical nature FN2."
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FN2 I.C.J. Reports 1955, p. 75.
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(g) It is significant that no State which was a party to the Covenant of the League—or any other State for that matter—at any material time alleged that the mandate instrument must be interpreted as embodying an implied term to the effect that Respondent would upon the dissolution of the League become obliged to report and account to another body, such as, for example, the General Assembly of the United Nations. During the discussions concerning the future of the mandates by the founders of the United Nations in the years 1945-1946, and by the Members of the League at its final session in April 1946, there was ample opportunity, and every incentive, for representatives to refer to such an agreement, if one existed. As I shall show later it was common cause at the time of the dissolution of the League that no provision had been made in any instrument for the transfer of the League's activities relative to the mandates to the United Nations.

7. A finding that the functions of the Council of the League, under the Mandate Declaration, as read with Article 22 of the Covenant of the League, became vested in the organs of the United Nations by virtue of an implied provision in the said instruments would go beyond their declared scope and object, would involve radical changes thereto, and would not only do violence to their clear and express language but would amount to a total disregard of the evidence relating to the common [p 91] intention of the parties. Such a finding would impose an obligation on the Respondent to which it did not agree, and to which it would not have agreed had it been asked to do so. It would constitute legislation by the Court disguised as interpretation. No court, including this Court, has the power to make a party's obligations different from, or more onerous than, those to which he has consented. Judicis est jus dicere, non dare.

7. In the preceding paragraphs I have dealt with the question whether there can be read into the Mandate Declaration an implied term which by itself brought about the result that upon the dissolution of the League an organ or organs of the United Nations were substituted as the super-visory authority in respect of mandates and that Respondent became obliged to report and account to such an organ or organs. It may be convenient at this stage to deal very briefly also with a related matter, to the extent that it also concerns the interpretation of the mandate instrument, and that is the suggestion that the obligation undertaken by Respondent in Article 6 of the Mandate was not an obligation to submit to the specific supervision of particular League organs, but an obligation to submit to "international supervision" generally, i.e., an obligation of "international accountability" FN1. Many of the reasons which I have mentioned as running counter to the proposition that an implied term of the nature and content aforestated must be read into the Mandate Declaration also militate against the suggestion that the Mandatory's obligation was one of "international accountability". Not only would such a reading of the Mandate Declaration, and of Article 22 of the Covenant, do violence to the clear and unambiguous provisions of the said instruments, but it would in effect go beyond the declared scope and object of such instruments. It would, moreover, be in conflict with the probabilities and the events and surrounding circumstances at the time of the framing of Article 22 of the Covenant and the Mandate Declaration.

--------------------------------------------------------------------------------------------------------------------FN1 This contention was one of the links in the proposition into which Applicants finally transformed their "organized international community" theory in the oral proceedings on the merits. The contention is now to the effect: (a) that inasmuch as Respondent's obligation was one of "international accountability" this obligation could not, and was not, terminated as a result of the dissolution of the League but continued in existence; (b) the only effect which the dissolution of the League could have had was that the said obligation would have become inoperative for lack of a supervisory organ, unless a new supervisory organ was appointed to which the Mandatory would be obliged, through fresh consent on its part, to report and account, and that Respondent in fact gave the necessary consent to the substitution of the General Assembly of the United Nations as such new supervisory organ. (C.R. 65/2, pp. 40-60 and C.R. 65/30, pp. 52-53.)
---------------------------------------------------------------------------------------------------------------------

It is also significant that for more than 25 years after the creation of the mandates system the authors thereof did not consider that the mandatories had bound themselves to "international supervision" generally (as opposed to supervision by the Council of the League), [p 92] and the possibility that this could be the meaning of the Mandate Declarations, as read with the Covenant, did not even occur to a single representative of any State during that period. There is accordingly no justification for transforming, under the guise of interpretation, the obligation to report and account to the Council of the League into an obligation to submit to "international supervision", or to supervision by "the international community" or the "family of nations" or the "civilized nations of the world", and thus to impose on Respondent an obligation to which it did not agree.

9.The next question is whether the Charter of the United Nations contains an implied term which effected a substitution of any of the organs of the said institution as the supervisory body, in the place of the Council of the League.

(a) The United Nations is not, and was not intended to be, the League of Nations under another name. It is a new international organization which came into existence six months before the League was dissolved. Some, but not al], the members of the League were founder members of the United Nations. Two of the major powers in the United Nations, the United States of America and the U.S.S.R., were not members of the League at its dissolution. The United States of American ever was a member of the League and the U.S.S.R. was expelled from the League in December 1939. Both these States were opposed to any notion that the United Nations was to be the League under a different name, or was to be an automatic successor to the League's assets, obligations, functions or activities. The discussions in the Preparatory Commission of the United Nations, the resolutions adopted by the General Assembly of the United Nations pursuant to the Preparatory Commission's recommendations, and the formal treaties concluded between the League and the United Nations, as well as statements made by member States on numerous occasions, provide conclusive proof that there was no automatic succession. Had it been the intention of the parties to the Charter to transfer the functions of the Council of the League with respect to mandates to an organ of the United Nations, such intention would have been expressed in positive terms. Although the mandates were specifically referred to in the Charter of the United Nations, there is no reference in any of the provisions of the Charter, or in any of the discussions at the time of the drafting of the Charter, to any intended transfer.

(b) There can be no question but that the authors of the Charter must have realized that upon the dissolution of the League the provisions in the mandate instruments concerning reporting and accounting would become inoperative unless some arrangement was made to substitute anew supervisory organ to which the mandatories would be obliged to report and account; just as the said members realized that the dissolution of the Permanent Court of International Justice would render in operable clauses in treaties or conventions providing for adjudication of disputes by the Permanent Court. But, whereas by Article 37 of the Statute of [p 93] the Court express provision was made for substituting this Court for the Permanent Court in all treaties and conventions in force FN1 there is no corresponding provision substituting any organs of the United Nations for the Council of the League in respect of the supervision of mandates. Had it been intended that one or other of the organs of the United Nations should take the place of the Council of the League relative to the supervision of mandates, such a provision would undoubtedly have been inserted in the Charter.

--------------------------------------------------------------------------------------------------------------------FN1 At one stage in the proceedings the Applicants advanced a contention that Article 37 of the Statute of the Court was redundant inasmuch as, in their submission, the new Court would, by reason of a principle of automatic succession, have become vested with the powers of the old Court in respect of treaties and conventions in force even without any provision such as contained in Article 37.(Observations on Preliminary Objections, pp. 443-444). This Court in the 1962 Judgment on the Preliminary Objections did not accept the Applicants' automatic succession argument. The argument was not repeated in the subsequent proceedings, and is in my view without substance.

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(c) Apart from the sacred trust referred to in Chapter XI of the Charter, the founders of the United Nations contemplated only one form of trusteeship, namely that provided for in Chapters XII and XIII, and there was no contemplation of any organs of the United Nations supervising mandates concurrently with the existence of the trusteeship system FN2. Article 77 (1) of the Charter provides that the trusteeship system shall apply, inter alia, to such territories "now held under Mandate" as may be placed under the system by means of trusteeship agreements, and it must therefore follow that the trusteeship system could not automatically apply to a mandated territory. To place a mandated territory under the trusteeship system a formal agreement had to be concluded.
---------------------------------------------------------------------------------------------------------------------FN2 Vide in this regard the Advisory Opinion of 1950 at p. 140.
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(d) I now proceed to consider Article 80 (1) of the Charter, and in particular its legal effect relative to Article 6 of the Mandate Declaration. Article 80 (1) reads as follows:

"Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79 and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any States or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties."

The ordinary grammatical meaning of the words commencing with "nothing in this Chapter" is that Chapter XII should not be construed as in or of itself (i) altering in any manner the rights whatsoever of any States, or (ii) altering in any manner the rights whatsoever of any peoples, or (iii) altering in any manner the terms of existing international instru-[p 94]ments to which members of the United Nations may respectively be parties. It is common cause that the Mandate Declarations were international instruments, and the aforesaid provision accordingly directs in express terms that Article 80 (which Article is part of Chapter XII) should not be construed in or of itself as altering in any manner the terms of existing mandate declarations. Apart from any other considerations, this clear and unequivocal instruction bars any interpretation of Article 80 (1) which would have the effect of amending Article 6 of the Mandate Declaration for South West Africa by substituting an organ of the United Nations as the supervisory body in the place of the Council of the League. This is in itself a complete answer to those who contend that Article 80 (1) was intended to safeguard the protection afforded to the peoples of the mandated territories by the provisions relative to supervision of the mandates until such time as trusteeship agreements were concluded. The truth is that the Article does not provide for, or “pre-suppose", the continuation of rights where such rights would otherwise have terminated either by reason of the provisions of the instrument containing them, or for some other valid reason. It merely safeguards rights in the sense that Chapter XII must not be construed as by itself changing any rights.

It is true that this Court, in effect, construed Article 80 (1) in 1950 in InternationaI Status of South West Africa, I.C.J. Reports 1950, page 128 at 133, as affording support for its conclusion that the functions of the organs of the League had been transferred to the General Assembly of the United Nations, and that Respondent's former duty to account to the organs of the League had been converted into a duty to account to the General Assembly of the United Nations. However, careful further attention was given to this Article during the hearing of deliberations on the preliminary objections in 1962. In the result not one of the judges in 1962 placed any reliance on the Article for the purposes of their opinions and judgment, and some of the minority opinions demonstrated very forcibly that it would be fallacious to regard the Article as affording support for any suggested transfer, devolution or "carry-over" of functions from the League and its Members to the United Nations and its Members. See South West Africa, I.C.J. Reports 1962, e.g., at pages 516, 615, and 646-650. In view of these developments one would have thought that no argument in support of the Applicants' contentions would again be sought to be based on Article 80 (1) FN1.
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FN1 With regard to the significance and effect of the Article the Applicants themselves have adopted a vacillating attitude. In their Memorials Applicants placed strong reliance on Article 80 (1) without stating what the legal effect of the Article was (Memorials, p. 88). In the preliminary objections proceedings in 1962 they contended that the Court in its 1950 Opinion had interpreted Article 80 (1) as having a positive character of safeguarding and maintaining rights, and they asked the Court to reaffirm the 1950 Opinion. (Oral Proceedings on the Preliminary Objections, pp. 287-290.) In the oral proceedings on the merits, however, the Applicants submitted that the said Article did not establish, constitute or maintain any rights, but merely served to "confirm the understanding of the authors of the Charter that certain rights, including those under mandates, did continue to exist". This of course affords no help at all in the problem under discussion, as I shall show.
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[p 95] Article 80 (1) is clear and unambiguous. But even if it were not so, the relevant facts preceding the framing of the Charter as well as the subsequent conduct of the parties concerned, would sufficiently demonstrate the impossibility of inferring any implied term of "presupposition" to the effect that the General Assembly of the United Nations was substituted for the organs of the League in the mandate declarations.

The discussions at the time of the drafting of Article 80 (1) reveal no evidence that the natural and ordinary meaning of the words of the Article does not express the true common intention of the parties. On the contrary, they reveal that the Article states exactly what it was intended to state.

The representative of the United States stated in unequivocal terms that the proposed Article, which later became Article 80 (l), was not intended to increase or diminish any rights, and the final report of the Committee made it clear that the Article was not to be interpreted as altering the provisions of the mandates. Respondent had by then already intimated its claim that the Mandate for South West Africa should be terminated and that the territory should be incorporated as part of the Union of South Africa. This intimation was made at the San Francisco conference "so that South Africa may not afterwards be held to have acquiesced in the continuance of the mandate or the inclusion of the territory in any form of trusteeship under the new international organization" FN1. The provisions of Article 6 could not survive the League unless they were amended by substituting some other supervisory authority for the League to which Respondent had to report and account, and there is no evidence in the Charter, or in its history, of any intention to thus amend the said Article, or of any supposition that such amend-ment would automatically result from the provisions of any of the instruments in question.

--------------------------------------------------------------------------------------------------------------------FN1 Committee 11/4 on 11 May 1945.
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The suggestion that Article 80 (1) served to confirm the understanding of the authors of the Charter that certain rights, including those under mandate, did continue to exist, has no bearing on the question in issue. Of course the authors of the Charter must have realized at the time when Article 80 (1) was drafted that rights under the Mandate were then in existence. But that was nearly a year before the dissolution of the League; and the Article does not, and was not intended to, reflect any understanding as to what would happen after the dissolution of the League with regard to mandates not converted to trusteeship.

10. I now proceed to examine the conduct of the Respondent and other States subsequent to the drafting of the Charter, and I do so with the [p 96] following purposes in mind; firstly, to ascertain whether such conduct reveals any evidence that the parties to the Covenant of the League or the Mandate Declaration ever thought at any material time that these instruments provided for the substitution of an organ such as the General Assembly of the United Nations, for the Council of the League in Article 6 of the Mandate Declaration; secondly, to ascertain whether there is any evidence of any understanding on the part of the authors of the Charter of the United Nations that any of the provisions of the Charter had brought about such a substitution and, thirdly, to ascertain whether the Respondent in any other manner tacitly consented to such a substitution FN1.

--------------------------------------------------------------------------------------------------------------------FN1 This enquiry will encompass both the question whether Respondent consented to a new obligation of accountability in the place of the obligation provided for in Article 6 of the Mandate and the question whether, assuming, for purposes of argument, that Applicants are correct in their contention regarding "international accountability" (as to which see para. 8, supra), Respondent consented to a substitution of a new supervisory organ in order to render the original obligation operable.
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11. As already stated, the United Nations was not an automatic successor in law of the League. It was, inter alia, for this reason that towards the conclusion of the San Francisco Conference a Preparatory Commission was established which was required, inter alia, to formulate recommendations concerning "the possible transfer of certain functions, activities and assets of the League of Nations which it may be considered desirable for the new organization to take over on terms to be arranged".(Italics added.)

As is shown in the next succeeding paragraphs, an examination of the discussions and recommendations of this Preparatory Commission reveals that its members (each founder Member of the United Nations was represented thereon) were not under the impression that the Covenant of the League, or the Mandate Declarations, or the Charter of the United Nations, or any other instrument, had the effect of transferring the functions of the Council of the League relative to mandates to any of the organs of the United Nations. The examination further reveals that Respondent did not, by conduct or otherwise, agree to such a substitution.

12. In the interim arrangements by which the Preparatory Commission was set up provision was made for an executive committee which would exercise the powers and functions of the Commission when the Commission was not in session. The Executive Committee, for the purpose of its functions, set up ten sub-committees. The terms of reference of Committee 4 of the Executive Committee included the following:

"It should study the questions arising if the mandates system were to be wound up and examine the feasibility of providing for such interim arrangements as may be possible, pending the establishment of the Trusteeship Council FN2."
-----------------------------------------------------------------------------------------------------------FN2 DOC. PC/EX/113/Rev. 1, 12 Nov. 1945, p. 113.
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Committee 4, after lengthy deliberation, recommended to the Executive [p 97] Committee, and the latter body in turn recommended to the Preparatory Commission, that there should be established a temporary trusteeship committee to exercise certain functions in connection with the conclusion of trusteeship agreements and the administration of trust territories. The recommendation contemplated that, until such time as the Trusteeship Council could come into being, the temporary trusteeship committee would undertake the functions of the said Council regarding the supervision of territories submitted to the trusteeship system FN1. In its report the Executive Committee made no provision for the supervision of mandates not brought under trusteeship. The only function proposed for the temporary trusteeship committee relative to mandates was to —
--------------------------------------------------------------------------------------------------------------------FN1 Doc. PC/EX/113/Rev. 1, 12 Nov. 1945, p. 58.
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"advise the General Assembly on any matters that might arise with regard to the transfer to the United Nations of any functions and responsibilities hitherto exercised under the mandate system”.

According to a further recommendation of the Executive Committee the tenure of the temporary trusteeship committee would cease when the Trusteeship Council could itself begin to function.

When the recommendations of the Executive Committee were discussed in the Preparatory Commission certain States took up the attitude that the establishment of the proposed temporary trusteeship committee would be unconstitutional. Various counter-proposals were made, including proposals for the appointment of an ad hoc committee of the General Assembly instead of a temporary trusteeship committee.

After lengthy discussions it was decided that no recommendation should be made for the creation of any temporary organ. The Preparatory Commission merely recommended that the General Assembly of the United Nations should call on the States administering mandated territories to undertake practical steps, in concert with the other States directly concerned, for the implementation of Article 79 of the Charter. This proposal was accepted by the General Assembly and was embodied in its resolution XI of 9 February 1946.

13. What is of importance in the present enquiry, is that throughout the discussions in the Preparatory Commission no State at any time suggested that the Mandate Declaration or the Charter made provision for the substitution of any organ of the United Nations, or any other organ, as the supervisory body in respect of mandates in the place of the Council of the League, or that Respondent or any other mandatory had in any other manner consented to such a substitution. That was so despite the facts that—

(a) Respondent had earlier in the same year made the statement mentioned in paragraph 9 (d), supra, regarding possible termination of the Mandate and possible incorporation of South West Africa as part of the Union of South Africa, which intimation, as stated above, was made for the very reason that "South Africa may not [p 98] afterwards be held to have acquiesced in the continuance of the Mandate or the inclusion of the territory in any form of trusteeship under the new international organization" FN1, and
---------------------------------------------------------------------------------------------------------------------FN1 Statement by Respondent's representative at the San Francisco Conference on 11 May 1945.
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(b) that, as I will show hereinafter, attention was drawn to the fact that, in the absence of any specific arrangement to that end, there would, after the dissolution of the League, be no powers of supervision in respect of mandated territories not submitted to trusteeship.

It is significant that, with one exception to be dealt with hereinafter, not one of the mandatories even contemplated that the proposed temporary trusteeship committee, or any other organ of the United Nations, should have supervisory functions in respect of mandates not converted to trusteeship.

It is clear that the Executive Committee did not intend the temporary trusteeship committee to have such functions. The intention was that the said committee would merely "advise the General Assembly on any matters that might arise with regard to the transfer to the United Nations of any functions and responsibilities hitherto exercised under the mandates system".

15. At the lime when the recommendations of the Executive Committee were under discussion in the Preparatory Commission, the United States of America filed a written proposal for amendment of the proposed functions of the temporary trusteeship committee.

This document (PC/TC/I l) drew attention to the fact that the report of the Executive Committee made no provision for any organ of the United Nations to carry out the functions of the Permanent Mandates Commission, and suggested that—

"In order to provide a continuity between the mandate system and the trusteeship system, to permit the mandatory powers to discharge their obligations, and to further the transfer of mandated territories to trusteeship, the temporary trusteeship committee (or such a committee as is established to perform its functions) and later, the Trusteeship Council should be specifically empowered to receive the reports which the mandatory powers are now obligated to make to the Permanent Mandates Commission." (Italics added.)

It was accordingly recommended that the powers of the temporary trusteeship committee (or such committee as was established to perform its functions) should be enlarged so that such committee could—

"... undertake, following the dissolution of the League of Nations and the Permanent Mandates Commission, to receive and examine reports submitted by mandatory powers with respect to such [p 99] territories under mandate as have not been placed under the trusteeship system by means of trusteeship agreements, and until such time as the Trusteeship Council is established, whereupon the Council will perform a similar function."

The United States of America, therefore, realized that unless specific provision was made to vest an organ or organs of the United Nations with powers of supervision over mandates there would, as from the dissolution of the League, be no supervision in respect of mandated territories not submitted to trusteeship: and it sought to provide for such supervision by recommending that until such time as the Trusteeship Council could start to function a temporary body should "be specifically empowered" to exercise supervisory powers over mandates not converted to trusteeship, and that the Trusteeship Council itself should "be specifically empowered" to perform a similar function once it came to be established.

It is significant that, although this document was duly filed on record and placed on the agenda of the Preparatory Commission, the matter was never raised by the United States in debate, and no reference was at any time made to it in any of the discussions.

It seems to me only reasonable to infer that the United States must, after the filing of the said document, have come to realize that the respective mandatories were not prepared to accept supervision by the United Nations of the administration of their mandated territories, Save and except for the case where a mandatory specifically agreed to place its mandated territory under the trusteeship system of the United Nations.

In this regard it is interesting to note what attitude was adopted by the different mandatories.

(a) The United Kingdom, although supporting the proposal of the Executive Committee for the establishment of a temporary trusteeship committee FN1—a proposal which did not contemplate that the said committee would have any supervisory functions in respect of mandates not converted to trusteeship—also expressed itself in favour of the alternative proposal for the establishment of an ad hoc committee, but suggested that the only functions which such an ad hoc committee should have relative to mandates should be—

--------------------------------------------------------------------------------------------------------------------FN1 PC/TC/2, p. 4 and PC/TC/4 p. 7.
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"... to advise the General Assembly on any matters that might arise with regard to the transfer to the United Nations of any functions and responsibilities hitherto exercised under the mandates system FN2”.
-----------------------------------------------------------------------------------------------------------FN2 PC/TC/25.
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The United Kingdom therefore intended the same limited role for the proposed ad hoc committee relative to mandates as did the Executive Committee in its proposal for a temporary trusteeship committee.[p 100]

(b) Australia supported the recommendation of the Executive Committee for the establishment of a temporary trusteeship committee without making any suggestion that the Executive Committee should have provided for wider powers for the proposed temporary trusteeship committee so as to enable it also to supervise mandates not converted to trusteeship FN1.
---------------------------------------------------------------------------------------------------------------------FN1 PC/TC/2, pp. 2-3 and 5.
---------------------------------------------------------------------------------------------------------------------

(c) Belgium expressed misgivings with regard to the establishment of a temporary body and made proposals which intended to avoid the establishment of any temporary or provisional body FN2 .
---------------------------------------------------------------------------------------------------------------------FN2 PC/TC/24 and PC/TC/32, p. 25.
---------------------------------------------------------------------------------------------------------------------

(d) New Zealand supported the proposal made by Yugoslavia, which included the appointment of an ad hoc body, subject, inter alia, to the amendments suggested by the United Kingdom (as to which see paragraph (a) above) but "hesitated to agree that a temporary committee of any kind was necessary FN3".
---------------------------------------------------------------------------------------------------------------------FN3 PC/TC/32, p. 25.
---------------------------------------------------------------------------------------------------------------------

(e) France recommended the establishment of an ad hoc committee which was intended to have no mission other than that of helping to bring about as quickly as possible the establishment of the Trusteeship Council. This proposed body would have had no supervisory functions in respect of trust territories and would have had no function relative to mandates other than—

". .. to advise the Assembly on any matters arising out of the transfer to the United Nations of those functions and responsibilities which originated either in the mandates system, or in other international agreements or instruments FN4".
-----------------------------------------------------------------------------------------------------------FN4 PC/TC/33.
-----------------------------------------------------------------------------------------------------------

(f) South Africa, through its representative, Mr. Nicholls, took up the attitude that if there was doubt as to whether the establishment of the proposed temporary trusteeship committee was con-stitutional or not legal judgment should be sought. Mr. Nicholls stated further that—

".. . on the question of expediency, it seemed reasonable to create an interim body as the Mandates Commission was now in abeyance and countries holding mandates should have a body to which to report FN5".
-----------------------------------------------------------------------------------------------------------FN5 PC/TC/2, p. 4.
-----------------------------------------------------------------------------------------------------------

It has been suggested that in making this statement Mr. Nicholls acknowledged that there was an obligation on the mandatory powers to subject their administration of the mandated territories to the supervision of the United Nations. In the first place, Mr. Nicholls did not say that the mandatories would be obliged to report to an interim body. He merely suggested that there should be a body to which they could report. In the second place, his statement must be read in proper context [p 101] and against the surrounding circumstances, of which the following are of major importance.

(i) The statement made by the South African representative earlier in that very year at the San Francisco Conference when he warned that South Africa should not "afterwards be held to have acquiesced in the continuation of the Mandate or the inclusion of the territory in any form of trusteeship under the new international organization".

(ii) The statement made by Mr. Nicholls himself shortly thereafter in the Fourth Committee of the Preparatory Commission shortly after his first-mentioned statement, when he said that he—

"... reserved the position of his delegation until the meeting of the General Assembly because his country found itself in an unusual position. The Mandated Territory of South West Africa was already a self-governing country, and last year its legislature had passed a resolution asking for admission into the Union. His Government had replied that acceptance of this proposal was impossible owing to their obligations under the Mandate. The position remained open and his Delegation could not record its vote on the present occasion if by so doing it would imply that South West Africa was not free to determine its own destiny. His Government would, however, do everything in its power to implement the Charter."

(iii) A further statement made by Mr. Nicholls only a few days later in a Plenary Meeting of the Preparatory Commission when he again stated a reservation and said that:

"South Africa considered that it had fully discharged the obligations laid upon it by the Allies, under the Covenant of the League of Nations, on the advancement towards self-government of the territories under Mandate."

Having regard to these three statements—one made a few months before Mr. Nicholls addressed the Fourth Committee of the Preparatory Commission on 29 November 1945, and the two later statements made by Mr. Nicholls himself shortly thereafter—it cannot be contended that, in saying that "countries holding mandates should have a body to which to report", Mr. Nicholls intended his remarks to apply to territories such as South West Africa in respect of which the mandatory had clearly intimated that it was not prepared to have the territory included in any form of trusteeship under the United Nations. It would rather seem that Mr. Nicholls intended his remarks to apply to those territories in respect of which the mandatories were willing to enter into trusteeship agreements but in respect of which there would be no supervisory organ until the Trusteeship Council came into being. In any event, regard being had to the attitudes adopted by the man-[p 102]datories in the Preparatory Commission, including Respondent, as well as the views expressed by other States at the time, there is no justification whatever for the suggestion that there was general agreement that the mandated territories should be under international supervision and that the mandatory powers wanted that supervision to be carried out by an interim or temporary body prior to the establishment of the Trusteeship Council FN1. The events in the Preparatory Commission show the very opposite, both as regards the attitudes of the mandatory powers (as set out above) and as regards the general agreement between the States concerned. It was realized that unless some specific arrangement was made to vest the United Nations with supervisory powers over mandates not converted to trusteeship, there would be no supervision of such mandates after the dissolution of the League. Nevertheless, although it was at one stage suggested by the United States of America that such arrangements should be made, the suggestion was not raised for discussion, and nothing at all was done to confer supervisory powers with respect to mandates not converted to trusteeship on any organs of the United Nations, or any other body. The general understanding must therefore have been that there would be no supervision of mandates not converted to trusteeship.

---------------------------------------------------------------------------------------------------------------------FN1 C.R. 65/27, p. 46.
---------------------------------------------------------------------------------------------------------------------

15. When the Preparatory Commission's report was considered at the First Part of the First Session of the General Assembly in the period January-February 1946, the mandatories each stated their respective intentions with regard to the future of the territories under mandate.

Australia, New Zealand and Belgium stated intentions to negotiate trusteeship agreements in respect of the mandated territories administered by them.

The United Kingdom intimated that in respect of Transjordan it intended to take steps for establishing the said territory as a sovereign independent State. With regard to Palestine it was considered necessary to await the report of the Anglo-American Committee of Enquiry before putting forward any proposals. And in respect of Tanganyika, the Cameroons and Togoland it was stated that the United Kingdom would proceed forthwith to enter into negotiations for placing these territories under the trusteeship system; but it was made clear that its willingness to place these territories under the trusteeship system depended upon it being able to negotiate satisfactory terms.

France intimated its preparedness to study the terms of agreements by which the trusteeship régime could be "defined" in respect of Togo-land and the Cameroons. In respect of the Mandated Territory of South West Africa, Respondent's representative stated its attitude in the following terms:

"Under these circumstances, the Union Government considers that it is incumbent upon it, as indeed upon all other mandatory powers, to consult the people of the mandated territory regarding [p 103] the form which their own future government should take, since they are the people chiefly concerned. Arrangements are now in train for such consultations to take place and, until they have been concluded, the South African Government must reserve its position concerning the future of the mandate, together with its right of full liberty of action, as provided for in paragraph 1 of Article 80 of the Charter.

From what I have said I hope it will be clear that South West Africa occupies a special position in relation to the Union which differentiates that territory from any other under a C Mandate. This special position should be given full consideration in determining the future status of the territory. South Africa is, nevertheless, properly conscious of her obligations under the Charter. I can give every assurance that any decision taken in regard to the future of the mandate will be characterized by a full sense of Our responsibility, as a signatory of the Charter, to implement its provisions, in consultation with and with the approval of the local inhabitants, in the manner best suited to the promotion of their material and moral well-being." (Italics added.)

And a few days later:

"Referring to the text of Article 77, he said that under the Charter the transfer of the mandates régime to the trusteeship system was not obligatory. According to paragraph 1 of Article 80, no rights would be altered until individual trusteeship agreements were concluded. It was wrong to assume that paragraph 2 of this Article invalidated paragraph 1. The position of the Union of South Africa was in conformity with this legal interpretation.

He explained the special relationship between the Union and the territory under its mandate, referring to the advanced stage of self-government enjoyed by South West Africa, and commenting on the resolution of the Legislature of South West Africa calling for amalgamation with the Union. There would be no attempt to draw up an agreement until the freely expressed will of both the European and native populations had been ascertained. When that had been done, the decision of the Union would be submitted to the General Assembly for judgment."

None of the statements made by the mandatories on this occasion can be interpreted as evidencing an understanding that, in the case of mandated territories in respect of which no trusteeship agreements were concluded, the United Nations, or any of its organs, would, after
[p 104] the dissolution of the League, have powers of supervision, or that the mandatories were prepared to submit to such supervision. Nor can it fairly be said that the Respondent's statement that it would submit the question of incorporation of South West Africa to the judgment of the General Assembly constituted a request to the United Nations to assume the supervisory functions of the Council of the League. In my opinion, it was obviously no more than an intimation of Respondent's desire of obtaining the approval of an important political act by the newly formed and important international organization. It must have been apparent to all concerned that, whatever the legal position might be, unilateral incorporation of South West Africa by the Respondent without consulting the United Nations could have led to serious criticism and harmful political results. This intimation was motivated solely by political wisdom and was not intended to have, nor was it understood to have, any bearing on the Respondent's obligations under Article 6 of the Mandate. This will become more apparent when subsequent events are considered.

16. Of major significance in the present enquiry are the texts of certain resolutions adopted by the General Assembly of the United Nations early in 1946, either with specific reference to mandates, or applicable, inter alia, to mandates.

In its resolution XI of 9 February 1946, the General Assembly expressed regret that the Trusteeship Council could not be brought into being at that session, and proceeded to state that it—

" Welcomes the declarations, made by certain States administering territories now held under Mandate, of an intention to negotiate trusteeship agreements in respect of some of those territories and, in respect of Transjordan, to establish its independence.

Invites the States administering territories now held under mandate to undertake practical steps, in concert with the States directly concerned, for the implementation of Article 79 of the Charter (which provides for the conclusion of agreements on the terms of trusteeship for each territory to be placed under the trusteeship system) in order to submit these agreements for approval, preferably not later than during the second part of the first session of the General Assembly."

Save for minor textual changes this resolution followed the precise wording of the draft resolution proposed by the Preparatory Commission FN1, and it is significant that, like the draft, it makes no mention whatsoever regarding the future of mandated territories in respect of which no trusteeship agreements would come about.
--------------------------------------------------------------------------------------------------------------------FN1 Vide para. 12, supra.
--------------------------------------------------------------------------------------------------------------------

[p 105]General Assembly resolution XIV of 12 February 1946 dealt with the "Transfer of certain functions, activities and assets of the League of Nations". In its operative part this resolution, inter alia, contained the following declaration:

"The General Assembly declares that the United Nations is willing in principle and subject to the provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain functions and powers previously entrusted to the League of Nations, and adopts the following decisions, set forth in A, B and C below."

Sections A and B dealt with functions pertaining to the Secretariat and Functions and Powers of a Technical and Non-Political Nature. Section C read as follows:

"Functions and Powers under Treaties, International Conventions, Agreements and other instruments having a Political Character.

The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character ..." (Italics added.)

Inasmuch as the mandate declarations were instruments having a political character, this section of the resolution was applicable to mandates. And it is the only resolution of the General Assembly in which provision was made for the possible transfer to the United Nations or its organs of the League's functions relative to mandates.

The part of the resolution in question is of considerable significance because it negatives the possibility of an implied agreement existing at that time in terms whereof the Respondent's obligations under the Mandate to report and account to the Council of the League would be transformed into an obligation to report and account to the United Nations. Judge Read aptly remarked, in International Status of South West Africa, I.C.J. Reports 1950, page 172: "The very existence of this express provision, however makes it impossible to justify succession based upon implication."

Insofar as this resolution was intended to provide a method for transferring to the United Nations supervisory powers in respect of mandates, such a transfer could, in terms of the resolution itself, effectively come about only by way of a specific request on the part of a mandatory and a decision by the United Nations to assume the function in question; and such an assumption had to be "subject to the provisions of, inter alia, the Charter".

Any assumption by the United Nations of supervisory powers in respect of mandates would have brought about a new or amended treaty obligation on the part of the Mandatory or mandatories concerned.

It follows that any such assumption by the United Nations of super-[p 106] visory functions in respect of a particular mandate pursuant to the request of the mandatory concerned had, in order to be valid and effective, to be registered in terms of Article 102 of the Charter. Failing such registration the arrangement could in terms of Article 103 not be invoked before any organ of the United Nations.
It is sufficient to Say that Respondent never requested the United Nations to assume the exercise of the functions or powers entrusted to the League by Article 6 of the Mandate for South West Africa, and that those functions were neither expressly transferred to the United Nations nor assumed by that organization at any material time.

17. I deal next with the events at the final session of the League of Nations. It has been argued that the declarations made by the several mandatories at the final session of the League constituted undertakings or "pledges" to submit their administration of the mandated territories to the supervision of the United Nations until the conclusion of other agreed arrangements, and that the final resolution of the League of 18 April 1946 constituted an international agreement or treaty recording such undertakings or "pledges" FN1.

--------------------------------------------------------------------------------------------------------------------FN1 Applicants' argument, which was based on what they termed "Preparatory Commission procedures and the system of pledges", can be briefly stated as follows:

(a) there was general agreement that the mandated territories should be under international supervision;

(b) the mandatory powers, including Respondent, wanted that supervision to be carried out by an interim or temporary body prior to the establishment of the Trusteeship Council, i.e., the proposed Temporary Trusteeship Committee;

(c) other governments feared that this procedure would lead to delay in the establishment of the trusteeship system and pressed for pledges by the mandatory powers to place their territories under the trusteeship system;

(d) by way of a compromise it was agreed that pledges would be made, but not pledges to place the mandated territories under the trusteeship system, the pledges would be to carry out all the obligations of the mandate, including the obligation to submit to international supervision;

(e) the said pledges were duly made at the final session of the League.

The part of the argument set forth in paras. (a) to (d), supra, has been dealt with in paras. 12-16, above.
---------------------------------------------------------------------------------------------------------------------

In this regard strong reliance has been placed on the 1950 Advisory Opinion of this Court and on the Judgment of five judges of this Court in the 1962 Judgment on the Preliminary Objections. It accordingly seems necessary to make a detailed examination of the events at the final session of the League, of the League resolution of 18 April 1946 and of all other relevant facts, as well as a careful analysis of the said Opinion and Judgment. I shall deal first with the events at the final League session.

18. In pursuance of informal discussions between members of the League most directly concerned with mandates, the representatives [p 107] of mandatory powers, in addressing the final plenary meeting of the Assembly of the League, made statements indicating the intentions of their governments with regard to their respective mandated territories. On 9 April 1946, the representatives of the United Kingdom and the Respondent made their statements.
The representative of the United Kingdom, after having mentioned that Iraq and Transjordan had already become independent sovereign States, and after repeating his Government's intention of placing Tanganyika, Togoland and the Cameroons under trusteeship, subject to the negotiation of satisfactory terms, stated:

"The future of Palestine cannot be decided until the Anglo-American Committee of Enquiry have rendered their report but until the three African territories (Tanganyika, Togoland and the Cameroons) have actually been placed under trusteeship and until fresh arrangements have been reached in regard to Palestine— whatever those arrangements may be—it is the intention of His Majesty's Government in the United Kingdom to continue to administer these territories in accordance with the general principles of the existing mandates." (Italics added.)

Respondent's representative made the following statement:

"It is the intention of the Union Government, at the forthcoming session of the United Nations General Assembly in New York, to formulate its case for according South West Africa a status under which it would be internationally recognized as an integral part of the Union. As the Assembly will know, it is already administered under the terms of the mandate as an integral part of the Union. In the meantime the Union will continue to administer the territory scrupulously in accordance with the obligations of the mandate, for the advancement and promotion of the interest of the inhabitants, as she has done during the past six years when meetings of the Mandates Commission could not be held.

The disappearance of those organs of the League concerned with the supervision of mandates, primarily the Mandates Commission and the League Council, will necessarily preclude complete compliance with the letter of the mandate. The Union Government will nevertheless regard the dissolution of the League as in no way diminishing its obligations under the mandate, which it will continue to discharge with the full and proper appreciation of its responsibilities until such time as other arrangements are agreed upon concerning the future status of the territory."

19.After the above statements had been made the representative of China, Dr. Liang, raised the question of the future of mandates in the First Committee on the afternoon of 9 April 1946. At that time the Committee was considering a draft resolution concerning assumption [p 108] by the United Nations of League functions and powers arising out of agreements of a technical and non-political character. Dr. Liang wished to propose for discussion the following draft resolution which he read out:

"The Assembly,

Considering that the Trusteeship Council has not yet been constituted and that all mandated territories under the League have not been transferred into territories under trusteeship;

Considering that the League's function of supervising mandated territories should be transferred to the United Nations, in order to avoid a period of interregnum in the supervision of the mandatory regime in these territories.

Recommends that the mandatory powers as well as those administering ex-enemy mandated territories shall continue to submit annual reports to the United Nations and to submit to inspection by the same until the Trusteeship Council shall have been constituted." (Italics added.)

I pause here to remark that if it had been thought that the provisions of the Covenant of the League and the Mandate Declarations, or the Charter of the United Nations, or any provision in any other instrument, or any statements made by the Respondent had the effect of amending the mandatory's obligation to report and account by substituting in the Mandate Declaration an organ of the United Nations for the Council of the League, Dr. Liang's proposed resolution would have been unnecessary. If it was thought that provision had already been made (in the Covenant of the League, in the Mandate Declarations, or in the Charter, or elsewhere) for the transfer of the League's supervisory functions to the United Nations, there would have been no need for a resolution "that the League's function of supervising mandated territories should be transferred to the United Nations". Likewise, if it was thought that provision had already been made (in the Covenant of the League, in the Mandates, in the Charter, or elsewhere) that mandatories should render the annual reports previously submitted to the League Council to the United Nations, there would have been no point in a recommendation that "the mandatory powers ... shall continue to submit annual reports to the United Nations".

The truth is that not a single member of the League nor a single Member of the United Nations at that stage thought that they were parties to any agreement which compelled the Respondent, or any other mandatory power to report and account to the General Assembly of the United Nations as the supervisory body in respect of mandates not converted to trusteeship. If there had been the requisite tacit meeting of minds to bring about an implied agreement to the said effect, one would have expected that the States which are now alleged to have been parties to such an agreement would have been aware thereof and [p 109] would have made some reference thereto. It cannot be denied that at the final session of the League it was common cause among all concerned that no such agreement existed (whether in the provisions of the Covenant, the mandates, the Charter, or elsewhere) and it does not seem possible that a court of law could today, in the face of these incontrovertible facts, find to the contrary.

20. When Dr. Liang had read his draft resolution the chairman ruled that the proposal was not relevant to the matter then under discussion, namely the assumption by the United Nations of League functions and powers of a technical and non-political character. The proposal was, therefore, not debated.

Following this incident informal discussions were renewed, the Chinese delegation participating therein. In the meantime further statements were made by the representatives of France, New Zealand, Belgium and Australia.

These statements were to the same effect as those made by the representatives of the United Kingdom and South Africa from which extracts have been quoted by me. Not one of them contained even a suggestion that the mandatories concerned would after the dissolution of the League report and account to, or otherwise submit to the supervision of, the United Nations or any of its organs with regard to the administration of their respective mandated territories. In effect each of the said statements merely intimated the intention of the mandatory concerned to continue with its administration of its mandated territory as before. And as I shall show later, the Australian statement intimated a clear contemplation that the mandate provisions for reporting and accounting would lapse.

21. The outcome of the informal discussions which had meanwhile taken place was that Dr. Liang on 12 April 1946 introduced a new draft resolution, which had been settled in consultation and agreement by all countries interested in mandates. In proposing the new draft resolution Dr. Liang-

". .. recalled that he had already drawn the attention of the Committee to the complicated problems arising in regard to mandates from the transfer of functions from the League to the United Nations. The United Nations Charter in Chapters XII and XIII established a system of trusteeship based largely upon the principles of the mandates system, but the functions of the League in that respect were not transferred automatically to the United Nations. The Assembly should therefore take steps to secure the continued application of the principles of the mandates system. As Professor Bailey had pointed out to the Assembly on the previous day, the League would wish to be assured as to the future of mandated territories. The matter had also been referred to by Lord Cecil and other delegates. It was gratifying to the Chinese delegation, as representing a [p 110]country which had always stood for the principle of trusteeship, that all the mandatory powers had announced their intention to administer the territories under their control in accordance with their obligations under the mandates system until other arrangements were agreed upon. It was to be hoped that the future arrangements to be made with regard to these territories would apply, in full the principle of trusteeship underlying the mandates system." (Italics added.)

The new Chinese draft contained what eventually became the League Assembly's resolution concerning mandates in the following form:

"The Assembly:

Recalling that Article 22 of the Covenant applies to certain territories placed under mandate the principle that the well-being and development of peoples not yet able to stand alone in the strenuous conditions of the modern world form a sacred trust of civilization:

1. Expresses its satisfaction with the manner in which the organs of the League have performed the functions entrusted to them with respect to the mandates system and in particular pays tribute to the work accomplished by the Mandates Commission;

2. Recalls the role of the League in assisting Iraq to progress from its status under an 'A' mandate to a condition of complete independence, welcomes the termination of the mandated status of Syria, the Lebanon and Transjordan, which have, since the last session of the Assembly, become independent members of the world community;

3. Recognizes that, on the termination of the League's existence, its functions with respect to the mandated territories will come to an end, but notes that Chapters XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League;



4. Takes note of the expressed intentions of the members of the League now administering territories under mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective mandates until other arrangements have been agreed between the United Nations and the respective mandatory powers." (Italics added.)

This resolution was adopted unanimously, the Egyptian delegate abstaining from the vote by reason of a reservation of his Government in regard to the Mandate for Palestine.

22. On the same day (18 April 1946) the Assembly of the League also adopted other resolutions, including one in respect of certain parts of the United Nations General Assembly resolution 14 of 12 February (erroneously described as dated 16 February), but significantly adopted [p 111] no resolution relative to section C thereof concerning the transfer to the United Nations of powers under treaties, international conventions, agreements and other instruments having a political character FN1.

--------------------------------------------------------------------------------------------------------------------FN1 Vide para. 16, supra.
--------------------------------------------------------------------------------------------------------------------

It appears to be an inescapable conclusion that the League Assembly took note of section C of the said resolution of the United Nations General Assembly, but did not consider it necessary for the League to pass any resolution in respect thereof.

I have already mentioned that, as applied to mandates, this section meant that the United Nations would not assume any powers entrusted to the League by a particular mandate declaration unless it received a request to do so from the mandatory concerned.

Had the Members of the United Nations (ail but seven of the 36 members of the League who attended its April session in 1946 were founder Members of the United Nations) thought that the League resolution of 18 April 1946 concerning mandates in any way made provision for the transfer to the United Nations of supervisory powers in respect of mandates, without any formal request in that regard being directed to the United Nations by any of the mandatories, they would have realized that the League resolution ran counter to the resolution of the United Nations General Assembly of 12 February. And it is unbelievable that this matter would then not have been raised and debated in the League Assembly and subsequently in the General Assembly of the United Nations. The General Assembly would then either have adhered to their resolution of 12 February, or would have altered it to bring it into conformity with the League resolution. Nothing of the kind ever happened, and one is therefore compelled to conclude that the League resolution was not considered to be inconsistent with the resolution of the General Assembly of the United Nations.

Had the first draft proposal by China been adopted by the League the position would have been different. This draft proposal was directly opposed to the aforesaid United Nations resolution concerning the transfer of political functions. Whereas the latter provided, inter alia, for the ad hoc assumption by the United Nations, at the request of the party concerned, of the functions entrusted to the League under a mandate declaration, the first Chinese draft resolution envisaged a general transfer of these functions without any request by the parties concerned.
23. A League resolution required unanimous support, and it is obvious that Dr. Liang's original draft resolution would not have been carried. Respondent's representative could not, and would not, have supported this proposal, as Respondent had repeatedly stated that the Mandate for [p 112] South West Africa should be terminated, and that Respondent was averse to the inclusion of the territory in any form of trusteeship under the United Nations. Nor would the proposal have had the support of the representative for Egypt. But the best proof of all that it would not have succeeded is the fact that it was not proceeded with, and that in its place came a watered-down resolution omitting those provisions which related to the transfer to the United Nations of the functions of the League with regard to mandates, and to the suggested obligation of the mandatories to report and account to the United Nations.

If the purpose of the final League resolution was to record, or to incorporate, an agreement in terms of which the mandatories were to submit annual reports to the United Nations, and to submit to the supervision of the United Nations, the provisions of the original Chinese draft would have been retained as expressing the intention of the parties. The fact that the express provisions in the first Chinese draft were deleted, can, in the circumstances, lead to no other conclusion than that no agreement embodying such provisions was arrived at. Any suggestion that the parties deliberately refrained from retaining the express provisions of the original Chinese draft because they preferred a tacit agreement to an express one in regard to this important matter, would be so nonsensical as not to merit any consideration. The omission of the said provisions in the later draft and in the resolution constitutes conclusive proof that that meeting of minds which was necessary to bring about an agreement concerning the transfer to the United Nations of supervisory powers in respect of mandates was lacking.

In this regard I respectfully wish to associate myself with the following remarks by Sir Percy Spender and Sir Gerald Fitzmaurice in their 1962 joint opinion:

"The contrast between the original Chinese draft and the one eventually adopted constitutes an additional reason why we find it impossible to accept the view .. . that the functions of the League Council in respect of mandates had passed to the United Nations; for this was the very thing which the original Chinese draft proposed but which was not adopted."

24. A finding that the League resolution of 18 April 1946 relating to mandates constituted treaties defining the future obligations of the mandatories cannot be justified. It was not more than it purported to be: a resolution of a moribund League. The only "agreement" that existed was consensus as to the terms of the resolution. Two of its paragraphs (3 and 4) are relied upon for the contention that it constituted an agreement defining the mandatories' obligations with respect to their mandates. In paragraph 3 the Assembly "recognizes" that on the dissolution of the League its functions with respect to mandated territories "will come to an end". This was a legal fact which really required no recognition. The Assembly further "notes" the existence in the Charter of the United [p 113] Nations of "principles" corresponding "to those of Article 22 of the League Covenant". This "noting" cannot alter obligations, and what strikes one forcibly is that nothing is said about transfer to the United Nations of the League's functions with respect to mandates. In paragraph 4 the Assembly "takes note" of the expressed intentions of members of the League administering mandated territories—"to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective mandates" until other arrangements have been agreed upon between the United Nations and the respective mandatory powers. Here again I fail to see on what legal principles one can base a conclusion that a recording in the League Assembly's resolution that it "takes note" of "expressed intentions" constitutes a treaty which gives the "expressed intentions" the force and effect of legal obligations.

25. The Board of Liquidation of the League (which consisted of representatives of nine ex-members of the League) were required by the League on its dissolution "to have regard in the performance of its task to all the relevant decisions of the League Assembly taken at its last session". The Board evidently did not regard the aforesaid League resolution of 18 April 1946 as embodying international agreements transferring the supervisory functions of the League to the United Nations. In fact, the Board quoted the said resolution in its final report, and then continued to state:

"The mandates system inaugurated by the League has thus been brought to a close but the Board is glad to be able to record that the experience gained by the Secretariat in this matter has not been lost, the United Nations having taken over with the small remaining staff the mandates section archives which should afford valuable guidance to those concerned with the administration of the trusteeship system set up by the Charter of that organization."

This report was sent to every ex-member of the League who was present at its final meeting, and there is no record that any State ever questioned the correctness of this statement in the report of the Board. If any party to the League resolution in question had thought that it constituted a binding international agreement that in respect of mandated territories not converted to trusteeship the mandates system would continue to operate, with the United Nations as the supervisory authority, then their silence in these circumstances is inexplicable.

26. I have already drawn attention to the fact that, in terms of resolution 14 of the General Assembly of the United Nations, the assumption by the United Nations of any functions of the League was to be subject, inter alia, to the provisions of the Charter, and that any agreement in terms of which the United Nations assumed the supervisory functions [p 114] of the League relative to mandates would accordingly have had to be registered in terms of Article 102 of the Charter.

In this regard one should bear in mind that a unilateral declaration by a State which has been accepted by another constitutes an international agreement in terms of Article 102 of the Charter. If the declarations of the mandatories together with the resolution of the League Assembly of 18 April 1946 were considered to constitute international agreements —which is in effect what Applicants contend—it is inconceivable that no steps should have been taken to effect the necessary registration. This is the more significant when one has regard to the carefully worded agreements relative to the transfer to the United Nations of assets and certain other functions of the League entered into between the United Nations and the aforesaid Board of Liquidation pursuant to resolutions of the Assembly of the League of 18 April 1946, which agreements were duly registered and published in the United Nations Treaties Series. In these circumstances, there can be no doubt that if it had been considered that the declarations of the mandatories together with the League resolution concerning mandates constituted international agreements in terms whereof the mandatories' obligations to report and account to the Council of the League were transformed into obligations to report and account to an organ of the United Nations, proper steps would have been taken to have the necessary registrations effected in accordance with the provisions of Article 102.
It has been suggested that no registration was effected because the evidence of the agreements was contained in so many statements that registration would not have been practicable. It is, however, inconceivable that no attempt would have been made in such a case to reduce the agreements to a registerable form. I know of no reason why the States concerned should deliberately have refrained from taking such steps, when they knew that in terms of Article 103 such agreements, if not registered, could not be invoked before any organs of the United Nations. It has been suggested that Applicants' reliance on this suggested "treaty" does not amount to "invoking" it before this Court (which, of course, is an organ of the United Nations). I do not agree with this contention; but it is, in any event, no answer to the point that if the States concerned thought that they were entering into a treaty they would not have done so in such an ineffective and obscure manner.

Hall, in Mandates, Dependencies and Trusteeship, page 273, commented as follows on this League resolution:

"The significance of this resolution of the League Assembly becomes clearer when it is realized that for many months the most elaborate discussions had been taking place between the governments as to the exact procedure to be adopted in making the transi-tion between the League and the United Nations. It was the function of the Preparatory Commission and committees succeeding it to [p 115] make recommendations on the transfer of functions, activities, and assets of the League. All the assets of the League had been carefully tabulated. All its rights and obligations that could be bequeathed to the United Nations and which the latter desired to take over were provided for in agreements that were made. But in the case of mandates, the League died without a testament." See also South West Africa cases, I.C.J. Reports 1962, pages 651-652.

27. It has also been suggested that the reason for not drafting a conventional treaty was that it was thought that all mandates would be placed under the international trusteeship system within a relatively short time. If this statement were correct, it would equally be a reason for not entering into any agreement at all as regards reporting to the United Nations. But the statement is not correct. There is no evidence in support thereof. On the contrary, the mandatories were not obliged to enter into trusteeship agreements, and the members of the League knew that a trusteeship agreement could only be concluded if the mandatory power concerned and the United Nations could agree on the terms thereof. The representative of the United Kingdom, for example, had stated clearly that the willingness of the United Kingdom to place its African mandated territories under the trusteeship system depended upon its being able to negotiate satisfactory terms. And with regard to South West Africa the Members of the League knew that Respondent was claiming incorporation, and that Respondent had no intention of placing South West Africa under the trusteeship system.

28. From what has been stated in the preceding paragraphs it follows that there is no justification for the suggestion that the League resolution in question constitutes a treaty in terms whereof the supervisory functions of the Council of the League in regard to mandates were transferred to the United Nations and the mandatories' obligations to report and account to the Council of the League were transformed into obligations to report and account to the United Nations. But even if the resolution can at all be regarded as being in the nature of a treaty, it cannot have the effects aforestated. It cannot embody more than the expressed intentions of the parties. At most it would (on the assumption that it is a treaty) constitute an agreement that the mandatories would continue to administer the territories for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective mandates. The aforesaid resolution does not refer to any undertaking to continue to report and account. As I have indicated this omission was not accidental but deliberate.

Not a single mandatory stated that it would continue to comply with the provisions relating to reporting and accounting. They could not have done so as they knew that those provisions depended for their fullilment on the existence of the League of Nations. Had they undertaken to comply with those obligations after dissolution of the League [p 116] they would have stated the respects in which they thought the provisions of the mandates were being amended or superseded. The declarations of intention to continue to administer the mandated territories were of a general nature: "in accordance with the general principles of existing mandates" (United Kingdom), "to pursue the execution of the mission entrusted to it by the League of Nations" (France), "in accordance with the terms of the mandate for the promotion of the well-being and advancement of the inhabitants" (New Zealand), "in accordance with the provisions of the mandates, for the protection and advancement of the inhabitants" (Australia). The delegate of the Respondent, after stating its intention of applying to the United Nations for international recognition of South West Africa as an integral part of the Union of South Africa, proceeded to express an intention on Respondent's part to continue to comply with its obligations under the mandate after the dissolution of the League. The words he used (see paragraph 18 above) made it clear that these were the obligations concerning administration, which did not depend on the existence of the League for their fulfilment. The statement said in terms that the Respondent would continue to administer the Territory scrupulously in accordance with the obligations of the Mandate as she had done during the six years when meetings of the Mandates Commission could not be held. It is common cause that during those years there was no reporting or accounting to the Council of the League. The statement made express mention of the fact that the disappearance of those organs of the League concerned with the supervision of mandates, primarily the Mandates Commission and the League Council, would necessarily preclude complete compliance with the letter of the mandate. It did not Say, and no fair interpretation can give it the effect of saying, that the Respondent was agreeable that the supervisory functions of the Council of the League and the Mandates Commission be transferred to the organs of the United Nations. As I shall show later, the subsequent conduct of Respondent, and of all the members of the League present at its final session, leaves no room for any doubt that they did not consider that the Respondent's statement and/or the League's resolution constituted an agreement in terms whereof Respondent became obliged to report and account to the United Nations as the supervisory body in respect of the Mandate for South West Africa. Nor can any such agreement be spelled out from the declarations made by the other mandatories.

29. The Australian representative made it clear that after the dissolution of the League it would be impossible to continue the mandates system in its entirety. Had the suggested transfer of the League Council's functions been contemplated, the Australian representative would simply have said that the supervisory functions of the League Council were being transferred to the organs of the United Nations. [p 117]

The Australian representative also referred to the explicit international obligation laid down in Chapter XI of the Charter, being the duty of transmitting information as provided for in Article 73 (e) of the Charter, and said that there would be no gap, no interregnum to provide for. In this regard it is significant that the League resolution "notes" that Chapters XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League. If the Members of the League thought that Chapter XI did not apply to territories under mandate surely no reference would have been made thereto in the resolution.

It does not matter whether Members were right or wrong in their assumption that Chapter XI applied to the mandates. They may well have been wrong. The important fact, however, is that they or at least some of them thought it did.

If it was thought that the duty to report under Article 22 of the Covenant and the Mandate Declaration would continue to exist after the dissolution of the League, no reference would have been made to Chapter XI of the Charter. The duty of transmitting information under Chapter XI is a much more restricted and less onerous one than that of reporting and accounting under the mandates. It would therefore not have been considered to be applicable to mandates, after the dissolution of the League, unless the contemplation was that the duty of reporting and accounting under the mandates had lapsed. The contemplation could not have been that there would be in operation two overlapping sacred trusts in respect of each mandated territory, both supervised by the United Nations, to which each mandatory had to render two reports, one in terms of the Mandate Declaration and the other in terms of Chapter XI. It was obviously thought by at least some of the delegates that Chapter XI would indeed supersede the more onerous reporting provisions of the Covenant and the Mandate Declaration, by reason of the lapse of such provision, until "other arrangements" were agreed to between the United Nations and the mandatory powers concerned. Such other arrangements could have included, inter alia, a trusteeship agreement, or the "assumption" by the United Nations, in terms of its Assembly's resolution XIV of 12 February 1946, of supervision in pursuance of a request to that end, or approval of incorporation by the mandatory of the mandated territory FN1.

--------------------------------------------------------------------------------------------------------------------FN1 Whether Chapter XI applies to South West Africa is not one of the issues in this case, and in any event this Court has no jurisdiction under the compromissory clause of the Mandate to give any judgment in respect thereof. I shall accordingly refrain from expressing my view on the question whether the said Chapter applies or not, and shall similarly remain silent on the further question that would arise if it applies, namely whether the United Nations organs' disregard of its provisions is tantamount to a breach or repudiation which entitles members affected thereby to refuse to comply with the reporting provisions of the Chapter.
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[p 118]
30. The United Kingdom's intention was expressed as being "to continue to administer these territories in accordance with the general principles of the existing mandates". That this statement, in itself, or as read with the League Assembly's resolution, did not embrace, and was not understood to embrace, an agreement substituting an obligation to report and account to the United Nations for the obligation to report and account to the Council of the League, appears, apart from the other considerations already mentioned, from the report and deliberations of the United Nations Special Committee on Palestine FN1.
--------------------------------------------------------------------------------------------------------------------FN1 The members of this Committee were Australia, Canada, Guatemala, India, Iran, Netherlands, Peru, Sweden, Czechoslovakia, Uruguay and Yugoslavia.
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All but two of the members of this Committee were Members of the League at the time of its dissolution, and were parties to the aforesaid resolution of the League, and all were founder Members of the United Nations. If the resolution in question was thought by these States to have had the effect of obliging mandatories to report and account to the United Nations, they would not have stated in their report concerning Palestine that on the dissolution of the League there was no international authority to which the mandatory power might "submit reports and generally account for the exercise of its responsibilities in accordance with the terms of the mandate". The report states that the mandatory's representative had this in mind when speaking of ad-ministration "in accordance with the general principles" of the mandate at the final League session. The report further states in terms that "the most the mandatory could now do ... would be to carry out its administration in the spirit of the mandate . . .". In a special note to the report, the representative of India remarked, inter alia, that:

"There are no means by which the international obligations in regard to the mandates can be discharged by the United Nations."

These States could not possibly have thought that the supervisory functions of the Council of the League had been transferred to the United Nations, whether by the provisions of the Mandate and the Covenant of the League, by the Charter of the United Nations, by the League resolution in question, by the declarations of intention by the mandatories, or by any other statement or instrument.

31. As will be indicated later, the aforesaid views of the above States reflected the general views of the Members of the United Nations, which included practically all States who were original Members of the League as well as the States present at the dissolution of the League. On what possible grounds could this Court now find the existence of tacit agreements, of which the States who are supposed to have been the parties thereto were unaware when practical situations [p 119] arose in which agreements would have been invoked had they existed?

The fact that the United Nations eventually assumed responsibility for the division of Palestine is of no significance at all. It was done at the request of, and with the approval of, Great Britain, and accordingly has no bearing on the issue in this case, viz., whether the Respondent has been a party to any agreement in terms whereof the United Nations was substituted for the Council of the League in Article 6 of the Mandate Declaration.

32. I proceed to deal next with events subsequent to the dissolution of the League.

Pursuant to an undertaking given earlier in that year, Respondent in November 1946 submitted to the United Nations, for its approval, the proposal to incorporate South West Africa into the Union of South Africa. This proposal was rejected by the United Nations. It has been submitted that by so doing Respondent clearly recognized the United Nations as the international body competent to supervise the administration of the Territory FN1.

--------------------------------------------------------------------------------------------------------------------FN1 C.R. 65/28, pp. 37 and 48.
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In my opinion there is no substance in this contention.

I have already indicated that Respondent's intimation that it intended making such a request to the United Nations did not mean, and was not intended nor understood to mean, that the United Nations was acknowledged to have supervisory powers in respect of the Mandate. It is similarly clear—as will appear from a consideration of subsequent events—that the request itself was neither intended, nor understood, to have such an effect. It was no more than an attempt to obtain the approval of the United Nations to an important political act. There are several instances where comparable requests were made to the United Nations, but no one ever suggested that such requests constituted implied consent to the substitution of the United Nations as the supervisory authority in respect of mandates not converted to trusteeship. Field-Marshal Smuts, when dealing with the incorporation proposal in the Fourth Committee of the United Nations, stated that:

"It would not be possible for the Union Government as a former mandatory to submit a trusteeship agreement in conflict with the clearly expressed wishes of the inhabitants. The Assembly should recognize that the implementation of the wishes of the population was the course prescribed by the Charter and dictated by the interests of the inhabitants themselves. If, however, the Assembly did not agree that the clear wishes of the inhabitants should be implemented, the Union Government could take no other course than to abide by the declaration it had made to the last Assembly of the League of Nations to the effect that it would continue to [p 120] administer the Territory as heretofore as an integral part of the Union, and to do so in the spirit of the principles laid down in the Mandate.

In particular the Union would, in accordance with Article 73, paragraph (e) of the Charter, transmit regularly to the Secretary-General of the United Nations 'for information purposes, subject to such limitations as security and constitutional regulations might require statistical and other information of a technical nature relating to economic, social and educational conditions' in South West Africa."

It will be noted that this statement was made only seven months after the League resolution of 18 April 1946, and yet at that time (and for a period of more than a year thereafter) not a single State contended that Respondent was obliged to report to the United Nations, not under Article 73 of the Charter, but under the provisions of the Mandate Declaration. This was the first time after the dissolution of the League that the Respondent had occasion to refer to its intentions with regard to South West Africa, and if any State had been induced to believe that the Respondent had agreed to such an amendment of the Mandate Declaration, Respondent's statement would surely have been challenged. The irresistible inference is that not a single Member of the United Nations who had been a party to the League resolution, and who was present when Field-Marshal Smuts made this statement could have thought that the League resolution constituted an agreement obliging the Respondent and other mandatories to account to the United Nations as the supervisory authority in the place of the Council of the League. Similarly no State could have been under the impression that the request for approval of the incorporation of South West Africa constituted an acknowledgement that the United Nations had been vested with such powers, by any process whatsoever.

33. During 1947 South West Africa was on several occasions the subject of discussion in the various organs of the United Nations—the Fourth Committee, the Trusteeship Council and the General Assembly. Respondent's representatives repeatedly made statements which could have left no doubt that Respondent's attitude was that, in the absence of a trusteeship agreement, the United Nations would have no supervisory jurisdiction over South West Africa, and that Respondent was under no duty to report and account to the United Nations in compliance with the obligations assumed under the Mandate.

In a letter to the Secretary-General of the United Nations dated 23 July 1947, Respondent referred to a resolution of the House of Assembly of the South Africa Parliament which, inter alia, recorded that the rights and powers of the League of Nations relative to mandates had not been transferred to the United Nations. The validity of this statement was not questioned. The aforesaid resolution also expressed the opinion that the Territory should be represented in the Union Parliament and [p 121] that the South African Government should continue to render reports "as it had done heretofore under the Mandate". The quoted words require some consideration. As at that stage, no report had yet been rendered to the United Nations by the South African Government FN1. The word "heretofore" must therefore have referred to reporting in the time of the League.

--------------------------------------------------------------------------------------------------------------------FN1 The date of submission of the only report was September 1947.
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Consequently the words "under the Mandate" merely reflected the facts that previous reporting to the League had occurred under the Mandate. The resolution did not say that reporting to the United Nations should occur under the Mandate. That would in any event have been an impossibility, at least to the extent that the Mandate required reporting to the Council of the League to its satisfaction. There is also no justification for reading the resolution as urging that the reporting should in any other sense occur "under the Mandate", e.g., in the sense of accounting for performance by the mandatories of the substantive obligations prescribed in the mandates. The reasonable reading, and the one most in accordance with the probable intent of the House, is that the resolution merely urged an act of reporting, and did not express any view or desire as to the form and context of the suggested reporting. This is so particularly in view of the fact that Field-Marshal Smuts, who as Prime Minister was leader of the majority party in the House of Assembly, had only five months prior to the resolution informed the Fourth Committee of the United Nations that the reporting would consist merely of transmission, for information purposes, of statistical and other technical information in accordance with Article 73 (e) of the Charter. If the House had intended to go against the Prime Minister on this point, one would have expected it to have said so explicitly.

However, be that as it may, it should be remembered that the resolution by itself has no legal significance: it is a recommendation to the Government (i.e., the Mandatory) and not an act or utterance by the Government. The important question is therefore how the Government understood the resolution and what it conveyed to the United Nations on the point in question in the letter of 23 July 1947. The letter left no room for doubt: it stated explicitly that the Union Government had "already undertaken to submit reports on their administration for the information of the United Nations" (italics added). This was unmistakably a reference to Field-Marshal Smuts' above-quoted statement to the Fourth Committee in November 1946, regarding transmission of information in accordance with Article 73 (e). The letter [p 122] did not intimate that any different kind of reports would be submitted.

On 25 September 1947, Respondent's representative in the Fourth Committee repeated Respondent's previous assurance that it would continue to maintain the status quo, to administer the Territory in the spirit of the Mandate, and to transmit to the United Nations for its information an annual report on its administration of the Territory. Two days later he explained—in response to a request by the representative of Denmark for amplification of the letter of 23 July 1947, which was then before the Committee—that—

".. . the annual report which his Government would submit on South West Africa would contain the same type of information on the Territory as is required for non-self-governing territories under Article 73 (e) of the Charter. It was the assumption of his Government, he said, that the report would not be considered by the Trusteeship Council and would not be dealt with as if a trusteeship agreement had in fact been concluded. He further explained that, since the League of Nations had ceased to exist, the right to submit petitions could no longer be exercised, since that right presupposes a jurisdiction which would only exist where there is a right of control of supervision and in the view of the Union of South Africa no such jurisdiction is vested in the United Nations with regard to South West Africa." (Italics added.)

Here again, there is no answer to the argument that, had it been considered that the Respondent was obliged to report and account to the United Nations, i.e., that supervisory functions of the League had been transferred to the United Nations, somebody would have challenged Respondent's contention that the United Nations had no right of control or supervision with regard to the administration of South West Africa. The fact is that not a single State did so. Denmark attended the final session of the League, and so did 30 other States who were Members of the United Nations in 1947. Once again I must emphasize that these facts constitute weighty evidence that as at 27 September 1947 the Respondent was not considered to be obliged in terms of any undertaking, agreement, or instrument to accept the supervision of the United Nations in respect of its administration of South West Africa or to account under the provisions of the Mandate to any organ of the United Nations.

34. No less than 41 Member States addressed one or more of the organs of the United Nations during 1947 on the matter of South West Africa. Of these 41 States, 38 States were founder Members of the United Nations and 20 were represented at the final session of the League Assembly in April 1946. Not one of these States (nor any other State) during that year alleged, or even suggested, that there existed an [p 123] agreement, express or implied, whereby the supervisory powers of the Council of the League over mandates were transferred to the United Nations, or whereby Respondent became obliged to report and account to the United Nations as the supervisory authority in respect of mandates. On the contrary, at least 14 States—ten of whom had attended the final meeting of the League—acknowledged that in the absence of a trusteeship agreement the United Nations would have no supervisory powers in respect of South West Africa. It is an accepted rule that when controversy arises as to whether a party to an agreement has assumed a particular obligation, resort may be had to the subsequent conduct of the parties. The weight to be attached to such conduct must necessarily depend on the circumstances of each case. Where for a relatively lengthy period after the execution of an agreement, all the parties by conduct accept the position that the agreement does not embody a particular obligation, then such conduct must bear considerable weight in a determination whether that obligation exists or not. If in addition it is at least doubtful whether the events relied upon were intended to constitute an agreement at all, and if in any event the alleged "agreement" does not contain any reference to the suggested obligation, not on account of any inadvertence but because it was deliberately omitted after being expressly raised, the inference that no such obligation was imposed is inescapable.

Both Applicant States are ex-members of the League of Nations. Their representatives and those of practically all other ex-members of the League who became Members of the United Nations, were present at meetings of the United Nations organs during 1946 and 1947 when the Respondent and many other States (including ex-members of the League)—repeatedly asserted that Respondent was under no obligation to report and account to the United Nations in respect of its administration of South West Africa. Not a single State challenged these assertions. If the Applicants or any other ex-members of the League thought that the Mandate, or any other instrument, or the events at the dissolution of the League, or the events subsequent thereto, imposed such an obligation on the Respondent, they would and should have said so. Their failure to speak affords conclusive proof of their acquiescence in Respondent's statements. Their duty to speak was even stronger if— as Applicants now contend—each ex-member of the League was meant to be an upper-guardian of the inhabitants of the Territory, each entrusted with the right and duty to demand and enforce compliance by the Respondent with all its obligations under the Mandate Declaration. [p 124]

The cumulative weight of the evidence so far examined is overwhelming, and the inescapable inference is that not a single Member of the United Nations, nor a single State who was a Member of the League of Nations at its dissolution, was under the impression in, or at any time prior to, 1947 that any agreement had been concluded whereby the League Council's authority had been transferred to the United Nations, or whereby the Respondent became obliged to account to the United Nations, with regard to its administration of South West Africa. On the contrary, they either expressly or tacitly agreed that no such agreement was ever entered into.

35. The view that the League Council's supervisory powers had not been transferred to the United Nations was not expressed with reference to South West Africa alone. In respect of other mandated territories also similar views were expressed from time to time up to 1948 by representatives of member States in the United Nations.

In this regard reference has already been made to the United Nations Special Committee on Palestine. In its report the Committee recommended that the Mandate for Palestine be terminated at the earliest practicable date and expressed, inter alia, the following unanimous comment:

"Following the Second World War, the establishment of the United Nations in 1945 and the dissolution of the League of Nations the following year opened a new phase in the history of the mandatory régime. The mandatory power in the absence of the League and its Permanent Mandates Commission, had no international authority to which it might submit reports and generally account for the exercise of its responsibilities in accordance with the terms of the Mandate. Having this in mind, at the final session of the League Assembly the United Kingdom representative declared that Palestine would be administered 'in accordance with the general principles' of the existing Mandate until 'fresh arrangements had been reached'." (Italics added.)

In a subsequent debate in the Security Council regarding Palestine the representative of the United States of America stated that:

"The record seems to be entirely clear that the United Nations did not take over the League of Nations mandates system."

With regard to the Mandate for Western Samoa, the representative of New Zealand stated in the Fourth Committee on 22 November 1946 that if acceptable terms could not be negotiated for the placing of this territory under the trusteeship system—

". . . New Zealand would have to carry on [its administration of the Territory] without the privilege of the supervision by the United Nations, which it desired".[p 125]

A statement very much to the same effect was made by the representative of the Soviet Union when a draft trusteeship agreement for the former Japanese Mandated Islands was discussed in the Security Council during April 1947.

36. It was only as from the end of 1948 that certain States (five in number) voiced a contradiction to the view repeatedly expressed up to that time, namely that the United Nations had no supervisory powers in respect of mandates not converted to trusteeship.

Not one of the dissenting States, however, based their contentions on implied or tacit agreement. Some relied on Article 80 (1) of the Charter, and others considered that the United Nations had replaced the League as the "organized international community", or as the "civilized and organized international collectivity", without explaining by what principle of law the supervisory powers of the League became vested in the United Nations.

In the same year Respondent, while submitting to the United Nations certain information in amplification of the report which it had lodged in the previous year—

". . . re-iterate[d] that the transmission to the United Nations of information on South West Africa, in the form of annual report or any other form, is on a voluntary basis and is for purposes of information only. They have on several occasions made it clear that they recognize no obligation to transmit this information to the United Nations, but in view of the wide-spread interest in the administration of the Territory, and in accordance with normal democratic practice, they are willing and anxious to make available to the world such facts and figures as are readily at their disposal..." (Italics added.)

At no time thereafter did Respondent, either expressly or by implication, acknowledge that it was under any obligation to report and account to the United Nations in respect of its administration of South West Africa. On the contrary, it persisted in the attitude that the United Nations had no supervisory powers in respect of its administration of the Territory and, in fact, for reasons set out in a letter dated 11 July 1949, refused to submit any further reports to the United Nations, not even reports for information purposes.

37. The aforegoing analysis of historical events can lead to only one conclusion and that is that the supervisory powers of the League Council were not transferred to the United Nations either by express or by tacit consent of Respondent, or in any other manner.

This conclusion is in conflict with the majority opinion of this Court in International Status of South West Africa, I.C.J. Reports 1950, and it has been suggested that it is also in conflict with the reasoning in one passage in the majority judgment (five judges) in South West Africa cases, I.C.J. Reports 1962. A careful examination of the said opinion [p 126] and judgment is therefore necessary, and I will in the succeeding paragraphs proceed to make such an examination.

38.In the 1950 Advisory Opinion the Court recognized that the supervisory functions of the League with regard to mandated territories not placed under the trusteeship system "were neither expressly transferred to the United Nations nor expressly assumed by that organization". From this it must follow that the Court's finding that such transfer did take place could, in the absence of any international principle or rule of succession, have been based only on a tacit or implied agreement. There does not appear to be any dispute that a term can be implied only if the admissible evidence reveals that it was contemplated by the parties, in the sense that they either actually intended it to operate, or would all, had their attention been directed thereto, have acknowledged that it fell within the scope of their agreement. It has been suggested that the Opinion of 1950 rests on the principle of effectiveness. This principle embodies the rule that treaties, etc.,

"... are to be interpreted with reference to their declared or apparent objects and purposes; and particular provisions are to be interpreted so as to give them their fullest weight and effect consistent with the normal sense of the words and with other parts of the text, and in such a way that a .season and a meaning can be attributed to every part of the text".

(See article by Sir Gerald Fitzmaurice in the British Year Book of International Law, 1957, XXXIII, p. 33.) The principle of effectiveness can never be divorced from the basic object of interpretation, viz., to find the true common intention of the parties, and it cannot operate to give an agreement a higher degree of efficacy than was intended by the parties. It cannot, therefore, be invoked to justify a result which is not in harmony with the intention of the parties as expressed by the words used by them, read in the light of the surrounding circumstances and other admissible evidence. See Lord McNair's The Law of Treaties, 1961, page 484, and other authorities quoted in South West Africa cases, I.C.J. Reports 1962, pages 582-584.

39. The Court in 1950, after stating that the object of the Mandate far exceeded that of contractual relations regulated by "mandate" in national law, and that the Mandate was created as an international institution with an international object (p. 132), for the Respondent to claim rights derived from the Mandate while denying the obligations thereunder could not be justified (p. 133). We have been urged to interpret this statement as meaning that, because the Respondent claims rights in respect of South West Africa, therefore all its obligations under the Mandate, including those under Article 6, must still be in force, and that therefore the Assembly of the United Nations must be deemed to have been substituted for the Council of the League as the [p 127] supervisory authority. If this is what the Court's statement was intended to convey, it is obviously wrong. On what basis in law can a claim to rights by the Respondent today have any effect on the legal situation resulting from events which occurred in 1920 and 1945-1946?

If the Respondent's rights and obligations under the Mandate in law lapsed on the dissolution of the League, a subsequent claim by the Respondent that it has rights under the Mandate cannot revive either the rights or the obligations that have lapsed. In any event, the Respondent does not claim any rights under the Mandate Declaration, which it contends has lapsed.

Respondent bases its claim to administer the Territory on the events which preceded the Mandate, and on the fact that it has at all material times been in de facto control of the Territory. If the Mandate has lapsed this Court has neither the right, nor the duty, to decide upon the validity of the Respondent's aforesaid contentions and I shall accordingly not express any opinion on the correctness thereof or otherwise. It is only in the alternative that Respondent says that if the Mandate should be held to be in force, it would have rights and obligations under the Mandate, but that these would no longer include an obligation of report and accountability. If the true position should indeed be that the Mandate is still in force, either because Respondent can be said to claim rights thereunder or for any other reason, that would still afford no justification for a Court to amend the mandate provisions by imposing on the Respondent obligations to which it did not agree, and which, in any event, are more onerous than those imposed by the Mandate Declaration.

40. A study of the 1950 Opinion shows that the Court first found that, since the administrative provisions of the Mandate (Articles 2 to 5) did not depend for their fulfillment on the existence of the League, they have survived the League (p. 133). The Court next considered the procedural provisions of the Mandate (Articles 6 and 7), which in the Court's view depended for their fulfillment on the existence of the League. After remarking that the authors of the Covenant considered that the performance of the sacred trust required international supervision, and that the authors of the Charter had in mind the same necessity when they created the international trusteeship system the Court found that the necessity for international supervision remained after the dissolution of the League, and that—

"... it cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist, when the United Nations has another international organ performing similar, though not identical, supervisory func-tions" (p. 136).

It is difficult to perceive on what legal principles the Court based [p 128] its conclusion that it "could not be admitted" that international supervision had disappeared. Throughout its Opinion the Court purported to be searching for the common intention of the parties to the Covenant, the Mandate Declaration and the Charter, and I think it is fair to say that what the Court intended to convey was that it inferred that the parties to the Mandate and the Charter had a common intention that "international supervision" of the administration of the mandated territories should continue after the dissolution of the League, and that inasmuch as the Assembly of the United Nations was competent to perform the functions of the Council of the League, the parties must, in the light of the evidence then before the Court, be assumed to have intended that the General Assembly should in future perform the said functions, and that the Respondent is therefore now obliged to report and account to this organ of the United Nations. If the Court did not find such a common intention, the only alternative is that it must have decided to legislate, which would mean that it exceeded its authority. This Court's function is laid down in Article 38 of its Statute, which requires it to decide disputes submitted to it in accordance with international law, and international law does not authorize the Court to legislate. In this regard I wish to repeat what I said in South West Africa cases, I.C.J. Reports 1962, page 591:

"The rules of construction authorize what has been termed the 'teleological approach' only to the limited extent indicated above. This approach, in its more extreme form, assumes that this Court has the power to disregard or amend the terms of an instrument in order to achieve an object, or presumed object, albeit in a manner different from that provided for and intended by the parties; but this approach disregards the basic rule that the purpose of construction is to determine the common intention of the parties and in any event it has not been recognized by this Court or its predecessor. No court has the power to make a party's obligations different from, or more onerous than, what it has agreed to. If this Court has the power to disregard or amend the provisions of a treaty or convention, it has legislative powers and such powers have not been entrusted to it by its Statute or any of the sources of inter-national law referred to in Article 38 of its Statute. As Sir Gerald Fitzmaurice rightly remarks in the article in the British Year Book of International Law, 1957, XXXIII, quoted above, at page 208: 'The Court has shown plainly that, in its view, the performance of such a function cannot properly form part of the interpretative process'."

It cannot be assumed that members of this high tribunal would deliberately ignore the elementary and basic principle that the intention of the parties must rule, and I shall accordingly, as already stated, assume that the Court in 1950 based its conclusion on what it considered to have been the common intention of the parties. But, in doing so, the Court, in my opinion, arrived at a wrong conclusion, mainly because [p 129] it did not have regard to all the relevant facts, many of which were apparently not brought to its attention. Before dealing with the facts to which the Court did not have any or proper regard in 1950, I wish to refer to one or two further aspects of the 1950 Opinion.

40 (a). In 1950 the Court relied exclusively (p. 137) on Article 10 of the Charter of the United Nations for its finding of competence on the part of the Assembly to supervise Mandates; but there can be no doubt that neither this Article or any other article of the Mandate contains any provision to this effect. The provisions of Article 10 are confined to matters which are already within the scope of the Charter; they do not bring any new matters within it—see my dissenting opinion of 1962, pages 652-653. In any event as will appear more fully infra, this Court's jurisdiction is confined in this case to disputes relating to the interpretation and application of the provisions of the Mandate for South West Africa, and the Charter of the United Nations is not a part of that Mandate.

41. In its 1950 Opinion, the Court, as I have already stated, first found that the administrative provisions of the Mandate survived the League because they (unlike the so-called procedural provisions) did not depend for their fulfilment on the existence of the League (p. 133). It thereupon, in effect, held that because the administrative provisions were still in force, therefore the necessity for the procedural provisions remained (p. 136). But inasmuch as the latter provisions stipulated for reporting and accounting to the Council of the League, they could not after the dissolution of the League be operable in their original form, the League Council having ceased to exist.

They could therefore only have survived the League if they were amended by the substitution of some organ to function in the place of the defunct Council of the League.

The Court, having found that Article 6 must have survived the League, therefore had to find that it survived in an amended form, i.e., that the Assembly of the United Nations had been substituted for the Council of the League (p. 136). If this analysis of the Court's reasoning is correct, it would seem, with respect, to expose a fallacy. When deciding that the administrative provisions had survived the League, the Court proceeded on the assumption that they could survive separately from the procedural provisions which depended on the existence of the League for their fulfilment. This must be so, for the Court reached its conclusion in regard to the survival of the administrative provisions without having devoted any discussion at all to the problems pertaining to survival or otherwise of the procedural provisions. But when it came to consider whether Article 6 had survived, the Court seems to have held, in effect, that the administrative provisions could not survive without Article 6, and that inasmuch as it had already found that the administrative provisions still applied, it found that Article 6 must therefore also have survived. In other words the Court seems to have[p 130] relied on two irreconcilable premises, viz., by assuming severability for the purposes of the first step in its reasoning, and by assuming inseverability of the same provisions for the purposes of the second step, which depended upon the first. On the premise of inseverability, the question whether the administrative provisions survived would depend on the question whether Article 6 had been appropriately amended so as to secure its survival.

Having reasoned along this line the Court then found what it regarded as confirmation of the conclusion that Article 6 had survived in an amended form, i.e., with the Council of the League being replaced by the General Assembly of the United Nations as the supervisory body.

Such an amendment could, however, have come about only with the consent of the Respondent, and the evidence establishes that not only was there no agreement that the mandatory's duty to report and account to the Council of the League would become a duty to report to an organ of the United Nations, but, that, on the contrary, it was common cause at all material times that no such change had taken place.

If the provisions of Article 6 were so essential that without them the rest of the mandate provisions could not exist, then the disappearance of Article 6 must mean that the whole Mandate has lapsed. On the other hand, if the said other provisions can still apply even though Article 6 has lapsed, then the disappearance of Article 6 can have no bearing on the survival or otherwise of the said other provisions.

42. Apart from what has been stated above, the Court referred to no specific evidence which can justify a finding that the Respondent agreed to an obligation to submit to the supervision and control of the General Assembly of the United Nations and to render annual reports to it. The Court, however, found "confirmation" for what it termed "these general considerations" in Article 80 (1) of the Charter of the United Nations, and in the resolution of the Assembly of the League of Nations of 18 April 1946, of which the Court said that it "presupposed that the supervisory functions exercised by the League, would be taken over by the United Nations". I have already dealt with the said Article and the said resolution, and have shown that neither can serve as support for the Court's conclusion.

43. Whether due to the fact that all the relevant information was not placed before the Court, or whether due to an oversight on its part, it is nonetheless clear that the Court did not have regard to the significance of some important events which occurred during the period 1945-1947. Thus the 1950 Opinion makes no reference to the first Chinese proposal with regard to mandates, which proposal was not proceeded with, and the only inference that can be drawn from this omission is that [p 131] the Court was either unaware thereof or did not appreciate its vast significance. Nor is any reference made in the Opinion to the discussions and proceedings in the Preparatory Commission, which reveal the absence of any presupposition that the United Nations would automatically, and without specific provision, become heir to the supevisory powers of the League, or that the Respondent's duty to account to the League would become a duty to account to the United Nations. Similarly, there is no reference in the Opinion to the proposal made by the United States of America to the Preparatory Commission that specific provision should be made for vesting certain organs of the United Nations with supervisory powers in respect of mandates not converted to trusteeship, or to the fact that the proposal was dropped and not even raised in the discussions before the Preparatory Commission. Nor is there any reference in the Opinion to the report of the Liquidation Committee of the League.

The Opinion also contains no reference to the findings of the United Nations Committee on Palestine, which so clearly reveal that there was no agreement to the effect that an organ or organs of the United Nations would after the dissolution of the League perform the functions of the League Council in respect of mandates, and in particular that the duty to report and account to the Council of the League had not been converted into a duty to report and account to any organ of the United Nations. The Court also made no reference to the numerous statements by the Respondent and a large number of Members of the United Nations (most of them also ex-members of the League) in the years following the dissolution of the League to the effect that the Respondent was not under a duty to report and account to the United Nations as a supervisory authority in respect of mandates.

43 (a). The Court, in referring to the Respondent's letter of 23 July 1947, stated that this letter drew attention to a resolution of the Union Parliament (in fact it was a resolution of the House of Assembly only) in which it requested "that the Government should continue to render reports to the United Nations Organization as it has done heretofore under the Mandate". The Court found that this declaration constituted—

"... recognition by the Union Government of the continuance of its obligations under the Mandate and not a mere indication of the future conduct of that Government. Interpretations placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its own obligations under an instrument. .."

I am aware that the above remarks were made by the Court when it was considering the question whether the substantive or administrative [p 132] provisions of the Mandate had survived the dissolution of the League. It would, however, appear from the minority opinions of 1956, in which several judges participated who had been parties to the 1950 Opinion, that the Court in 1950 was under the impression that the Respondent had undertaken to report to the United Nations in compliance with the provisions of Article 6 of the Mandate. It therefore seems as if the Court in 1950 overlooked the fact that Respondent's undertaking to report was not intended to be in compliance of Article 6, but was limited to reports of the kind provided for in Article 73 of the Charter, a fact which is apparent from the wording of the very letter itself, in which, as indicated above, mention is made of Respondent's undertaking to "submit reports on their administration for the information of the United Nations". The Court also apparently did not appreciate that the resolution referred to in the letter was not a resolution of Respondent's Parliament but a resolution of only one of the Houses of Parliament, and that it had no legal effect other than that of a recommendation to the Union Government, i.e., the Mandatory, as to what should be done in future. As I have shown above, when the letter is read with the statements which were made by Respondent's representatives at the United Nations, both before and after the date of the letter, it becomes explicitly clear that Respondent was neither agreeing to submit to the supervision of the United Nations nor offering to supply any information, other than information of the nature contemplated in Article 73 of the Charter. I may add that if the aforesaid resolution is analysed with a view to ascertaining what the contemplation of the House of Assembly was regarding obligations under the Mandate, it seems evident that the following paragraph thereof should not be ignored:

"Whereas the League of Nations has since ceased to exist and was not empowered by the provisions of the Treaty of Versailles or of the Covenant to transfer its rights and powers in regard to South West Africa to the United Nations Organization, or to any other international organization or body, and did not in fact do so." (Italics added.)

44. Not only were cogent reasons advanced in 1950 by Sir Arnold McNair and Judge Read for dissenting from the majority judges in respect of this issue, but the majority opinion has elicited strong criticism from highly qualified publicists. I refer in this regard to George Schwar-zenberger, International Law (3rd ed.), Volume 1, pages 101-102; Manley O. Hudson, "The Twenty-ninth Year of the World Court", in American Journal of International Law, Volume 45, pages 1-36 at pages 13-15; and Joseph Nisot, "The Advisory Opinion of the International Court of Justice on the International Status of South West Africa", in South African Law Journal, Volume 68, Part 3 (August 1951), pages 274-285. In my opinion there is, for the reasons which I have advanced, complete justification for such criticism. [p 133]

45. Although the soundness of the Court's 1950 Opinion in regard to Article 6 of the Mandate Declaration did not necessarily require decision when the preliminary objections of the Respondent were considered by this Court in 1962, it was certainly a fundamental issue in respect of the main one of the alternative contentions advanced by the Applicants, i.e., the contention, not acceded to by any member of the Court, of a succession by the United Nations and its Members of the functions of the League and its members regarding mandates. Conse-quently several judges expressed views on the matter. In a joint dissenting opinion Sir Percy Spender and Sir Gerald Fitzmaurice remarked:

". . . we think that the view expressed by the Court in its 1950 Opinion, to the effect that the supervisory functions of the former League Council passed to the Assembly of the United Nations which was entitled to exercise them, was definitely wrong". (See South West Africa cases, I.C.J. Reports 1962, p. 532, footnote 2.)

The said judges based their conclusion, inter alia, on two facts which were not before the Court in 1950, namely firstly, the content of the proposal of the Executive Committee of the Preparatory Commission of the United Nations, which proposal was rejected, and, secondly, the fact that the Chinese representative was compelled to amend his original draft resolution by omitting all reference to reporting by mandatories to the United Nations.

The effect of the opinion of Judge Bustamante in 1962 is that in the absence of a trusteeship agreement, the United Nations could not exercise control over South West Africa. Sir Louis Mbanefo's opinion also appears to support the view that administrative supervision of the Mandate had disappeared on the dissolution of the League. He quoted with approval an extract from the separate opinion of Judge Read in Status of South West Africa, I.C.J. Reports 19.50, page 165, which included the following passage:

"The disappearance of the obligations included in the first and the second classes would bring the mandates system to an end. The disappearance of the régime of report, accountability, supervision and modification, through the Council and the Permanent Mandates Commission, might weaken the mandates system; but it would not bring it to an end. As a matter of fact, the record shows that the paralysis of those agencies during the six war years had no detrimental effect upon the maintenance of the well-being and development of the peoples." (Italics added.)

And Sir Louis Mbanefo came to the conclusion that on the dissolution of the League—

"... rights and obligations embodied in it [the Mandate] were [p 134] maintained at the level at which they were on the dissolution of the League".

The obligation to report to a non-existing Council of the League could not be "maintained" at any level.

46. It has been submitted that some passages in the Judgment of the Court in South West Africa cases, I.C.J. Reports 1962, could be interpreted as supporting the Court's majority opinion of 1950 in regard to the transfer to the United Nations of the supervisory powers of the League in respect of mandates. There are, however, no express findings to this effect, and the impression gained from the Judgment as a whole is that as far as possible this issue was deliberately avoided, and that the Court did not intend expressing any opinion thereanent. What is, however, of considerable significance is that both the conclusion and reasoning in the said Judgment regarding the survival of the compromissory clause in Article 7 of the Mandate Declaration support the view that transfer of supervisory powers did not take place.

The reasoning of the 1962 Judgment compels one to infer that the Court thought that, as a result of the dissolution of the League, Article 6 of the Mandate no longer applies.

Reference has already been made to the three reasons advanced in the said Judgment for holding that the words "Member of the League of Nations" in Article 7 (2) of the Mandate have since, and by reason of the dissolution of the League, come to mean, for the purposes of the said Article, ex-member of the League. The first reason was that, inasmuch as a mandatory could during the lifetime of the League by the exercise of its rights under the unanimity rule, have frustrated the wishes of the Council of the League relative to the administration of the mandated territory, the role of the Court was a very essential one.

With regard to this suggested essentiality of the adjudication clause, the Court's attention had been drawn to the fact that three of the trusteeship agreements concluded in respect of former mandated territories do not contain any compromissory clause, and the argument had been advanced that the Members of the United Nations (and they included practically all the ex-members of the League) could therefore not have considered the adjudication clause to be an essential provision.

The Judgment deals as follows with this argument:

"The point is drawn that what was essential the moment before was no longer essential the moment after, and yet the principles under the mandates system corresponded to those under the trusteeship system. This argument apparently overlooks one important difference in the structure and working of the two systems and loses its whole point when it is noted that under Article 18 of the Charter of the United Nations, 'decisions of the General Assembly on important questions shall be made by a two-thirds majority of the [p 135]members present and voting', whereas the unanimity rule prevailed in the Council and the Assembly of the League of Nations under the Covenant. 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 for invoking the Permanent Court for judicial protection which prevailed under the mandates system is dispensed with under the Charter.

For the reasons stated, the First and Second Objections must be dismissed."

The effect of this statement is that the adjudication clause is not an essential provision in the trusteeship system inasmuch as the unanimity rule which applied to proceedings of the Council of the League does not apply to the organs of the United Nations, with the result that the General Assembly and the Trusteeship Council of the United Nations can take valid decisions without the concurrence of the trustee State. The authors of the Judgment considered the adjudication clause to be essential only as long as the unanimity rule applied to the organ entrusted with administrative supervision, or if such organ should for some reason or another cease to function. If it should be held that Article 6 of the Mandate was amended by the substitution of the General Assembly of the United Nations (functioning with an ordinary two-thirds majority) for the Council of the League, there would be no real difference between the administrative supervison of the mandated territory and that of a State under the trusteeship system; which of course would mean—in terms of the Court's 1962 reasoning—that the reasons advanced for regarding the adjudication clause as an essential clause of the Mandate would no longer apply, and that the construction placed by the Court on the words "another Member of the League" in Article 7 (2) of the Mandate would not be justified. In other words, the adjudication clause could have survived on the grounds of its essentiality only if the unanimity rule which applied to the proceedings of the League Council also applies to the proceedings of the Assembly of the United Nations when that body is concerned with the administration of the Mandate, or if administrative supervision as provided for in the Mandate has come to an end. In this Court's Advisory Opinion of 1955, it was held that the unanimity rule cannot apply in any proceedings of the General Assembly of the United Nations, and this view was confirmed by the 1962 Judgment. If the said Opinion is sound, then a finding that the supervisory powers of the Council of the League were transferred to the General Assembly of the United Nations would be in conflict with the reasoning in the 1962 Judgment.

The inescapable conclusion accordingly is that the reasoning of the 1962 Judgment cannot be reconciled with a contention that the supervisory functions of the Council of the League became vested in the General Assembly of the United Nations.[p 136]

47. There is also another aspect of the reasoning of the 1962 Judgment which negatives the possibility of the General Assembly of the United Nations having succeeded to the supervisory functions of the League Council. The Court relied upon what it found to be an agreement among the members of the League in April 1946 to continue the mandates "as far as it was practically feasible or operable with reference to the obligations of the mandatory powers". It was held that the purpose of this agreement was to make up for the "imperfections as far as was practicable" and "to maintain the status quo as far as possible in regard to the mandates". At page 341 of the Judgment the agreement is described as follows:

"It is clear from the foregoing account that there was a unanimous agreement among all the Member States present at the Assembly meeting that the Mandates should be continued to be exercised in accordance with the obligations therein defined although the dissolution of the League, in the words of the representative of South Africa at the meeting, 'will necessarily preclude complete compliance with the letter of the Mandate', i.e. notwithstanding the fact that some organs of the League like the Council and the Permanent Mandates Commission would be missing. In other words the common under-standing of the Member States in the Assembly—including the Mandatory Powers—in passing the said resolution, was to continue the Mandates, however imperfect the whole system would be after the League's dissolution, and as much as it would be operable, until other arrangements were agreed upon by the Mandatory Powers with the United Nations concerning their respective Mandates." (Italics added.)

Had the Court considered that Article 6 of the Mandate had been amended by the substitution of the General Assembly of the United Nations for the Council of the League, the above-quoted expression would not have been used. There would have been no "imperfections" which could only be made up for "as far as was practicable". The agreement to continue "as much as ... would be operable" must have presupposed that Article 6 would not be operable, because if it were operable and if, as the Court had held, Article 7 still applied, there would have been nothing that could not be operable and the words "as much as ... would be operable" would have been meaningless. In any event, the purpose could not have been "to maintain the status quo" and at the same time to bring about radical amendments. There could be no question of maintaining the status quo if the supervisory powers were transferred to a body the membership of which was not the same as that of the League, and which functioned in a manner substantially different from that which applied in the League Council. The status quo could not be maintained if by the suggested substitution Respondent's rights under the unanimity rule would be abolished.

48. As I have already mentioned, the Court did not base its finding [p 137] on any principle of succession. The Court based its finding on its interpretation of the mandate instrument and on acts which it considered constituted an agreement to the effect that the expression "Member of the League" in Article 7 of the Mandate Declaration should be construed as meaning "ex-Members of the League, who were Members at the time of its dissolution". In other words, it found that the rights of the members of the League under the Mandate were not transferred to the members of the United Nations, but that States which were members of the League at its dissolution retained their rights to invoke the adjudication clause in Article 7 of the Mandate. If this view is Sound, it could surely not have been the intention of the parties that the administrative supervision provided for in Article 6 of the Mandate would be transferred to the United Nations, because if such a transfer took place it would mean that States which are not members of the United Nations, and which would therefore have no Say in the "administrative supervision", would nonetheless have competence in the "judicial supervision", and that, likewise, many States entitled to take part in the "administrative supervision" would have no competence in the "judicial supervision". Such an anomalous result could not possibly have been contemplated by the Court. For the above reasons the 1962 Judgment cannot be reconciled with a contention that the supervisory powers of the Council of the League were transferred to the United Nations.

49. My conclusion, therefore, is that Respondent is not under any obligation to report and account to the United Nations relative to its administration of South West Africa. Article 6 of the Mandate Declaration and the corresponding provisions of Article 22 of the Covenant of the League ceased to apply on the dissolution of the League. Applicants' Submissions 2, 7 and 8 should accordingly be dismissed.

50. It has been suggested that the Respondent is estopped from denying an obligation to report and account to the United Nations. In my opinion it is not estopped. Not only has Respondent at all material times consistently denied such an obligation, but also no State has at any material time alleged that it was induced by Respondent's word or conduct into thinking that the Respondent had acknowledged such an obligation. The Applicants cannot suggest anything of the kind, because they would not be able to reconcile such a suggestion with their silence and acquiescence during 1945, 1946, 1947 and 1948.


Article 73 of the Charter of the United Nations

1. It may be contended that if Article 6 of the Mandate ceased to apply, the reporting provisions of Article 73 of the Charter of the United Nations (although far more limited in scope and effect) now apply to the territory of South West Africa. This raises two major [p 138] questions: firstly, whether this matter is part of the Applicants' claim, i.e., has it been referred to the Court for decision by the Applicants, and secondly, whether the Respondent has consented to the Court's jurisdiction in respect thereof FN1.

--------------------------------------------------------------------------------------------------------------------FN1 A judge is of course at all times free to express his views on a matter falling outside the competence of the Court if he considers it relevant to an issue validly under consideration, but such views are obviously obiter dicta. I find it unnecessary (as in 1962) to make even an obiter statement on this complicated matter which has not been argued as an issue by either Party. If the matter was relevant it would have been necessary to consider the dificulties raised by Dr. Steyn in his argument before this Court in 1950 (Status of South West Afiica, I.C.J. Pleadings, pp. 273-317), and to investigate such matters as the legal effect of the consistent denial by the United Nations organs of the applicability of Article 73 to South West Africa, the alleged abuse of the provisions of this Article by the Assembly of the United Nations referred to by Respondent's counsel during the oral proceedings, etc. It would furthermore entail a consideration of the alleged non-compliance by the United States with the provisions of this Article with regard to those Pacific Islands which were formerly subject to a League of Nations mandate held by Japan, and which have not been placed under a trusteeship agreement.

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2. The Applicants not only deliberately did not refer this issue to the Court, but strenuously contended that Article 73 has no application as far as South West Africa is concerned.


3. In their Applications they alleged that—

".. . the Union has violated, and continues to violate Article 6 of the Mandate, by its failure to render to the General Assembly of the United Nations annual reports containing information with regard to the territory and indicating the measures it has taken to carry out its obligations under the Mandate".

Submissions B, C and J in the Applications equally leave no room for any doubt that the claim was based on Article 6 of the Mandate as read with Article 22 of the Covenant. In the Memorials the Applicants relied solely on this Court's 1950 Opinion, which held that Article 6 of the Mandate survived the dissolution of the League, but that the applicability of Article 73 was irrelevant—despite the fact that argument thereon was heard. Submissions 2 and 7 of the Memorials, and as finally drafted, similarly leave no room for any doubt that the claim embraced by them was based on Article 6 of the Mandate. In the Reply Applicants' contention was defined as follows: "Respondent's obligation, as stated in Article 6 of the Mandate, is in effect, and Respondent is accountable thereunder to the United Nations, as 'the organized international community' ". It was stated in express terms that "Applicants' submissions do not allege violations by Respondent of such obligations" (i.e., obligations under Article 73 of the Charter). In the oral proceedings, Applicants were at great pains to demonstrate that they did not rely on Article 73 (e), and emphasized that the claim was based on Article 6 [p 139] of the Mandate. They consistently resisted any suggestion that Article 73 (e) might be applicable.

4. It has been repeatedly laid down by this Court that only matters raised in the final submissions of the parties will be considered and that the Court will abstain from deciding issues not raised in such submissions. The Court certainly has no power to depart from a submission in order to decide an issue not included therein and not intended to be so included.

5. In any event this Court has no jurisdiction to pronounce on this issue. The only provision on which jurisdiction could be based is Article 7 (2) of the Mandate Declaration, and this limits the Court's jurisdiction to disputes between the Respondent and another member of the League relating to the interpretation and application of the provisions of the Mandate which cannot be settled by negotiation. The Respondent has never had any dispute with the Applicants relating to the interpretation or application of the provisions of Article 73; there has accordingly never been any attempt to settle such dispute, and these provisions are in any event provisions of the Charter of the United Nations, and not provisions of the Mandate. Even if Article 73should apply to South West Africa, it does not therefore become a provision of the Mandate, just as the provisions of any other instrument entered into by the Respondent with regard to South West Africa could not be regarded as provisions of the Mandate. The preamble of the Mandate tells us what its provisions are.


6. In any event, Article 73 conferred no legal rights or interest on Applicants, and for the reasons mutatis mutandis stated in the Judgment, they would have no legal right or interest in any claim based on this Article.

The Alleged Breaches of Articles 2, 4 and 7 (1)

Even if Article 7 (2) as well as the provisions of the conduct clauses of the Mandate are still in force and even if the Applicants have substantive legal rights in respect thereof their submissions relating to alleged breaches of Articles 2, 4 and 7 (1) should nonetheless, in my opinion, be dismissed for reasons which I am about to state.

The main complaints relate to Article 2 (2) and they will be considered first. [p 140]

Article 2 (2)

(Submissions 3 and 4)

History of the Submissions

1. Article 2 of the Mandate reads as follows:

"The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa, and may apply the laws of the Union of South Africa to the territory, subject to such local modifications as circumstances may require.

The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate."

For a full appreciation of the issues before the Court regarding alleged contraventions of this Article, it will be necessary to give some consideration to the history of Applicants' relevant submissions, starting with the Applications.

2. In compliance with Article 32 (2) of the Rules of Court, Applicants stated the precise nature of their claims relative to Article 2 (2) of the Mandate Declaration in paragraphs E, F and G of the submissions included in their Applications. In effect these claims were based on allegations:

(a) that the Respondent had failed to achieve the results contemplated by Article 2, paragraph 2, of the Mandate;

(b) that the Respondent had "practised apartheid, i.e., [had] distinguished as to race, colour, national or tribal origin, in establishing the rights and duties of the inhabitants of the territory"; and


(c) that the Respondent had adopted and applied legislation, regulations, proclamations and administrative decrees which were, by their terms and their application, arbitrary, unreasonable, unjust and detrimental to human dignity.

4. In the Memorials the relevant submissions were drafted rather differently. After setting out the facts and the legal contentions upon which the Applicants relied, the following summaries appeared in paragraphs 189 and 190 of Chapter V:

"189. As the Applicants have previously pointed out, the policy and practice of apartheid has shaped the Mandatory's behavior and permeates the factual record. The meaning of apartheid in the Territory has already been explained hereinabove. The explanation warrants repeating. Under apartheid the status, rights, duties, op-[p 141]portunities and burdens of the population are fixed and allocated arbitrarily on the basis of race, color and tribe, without any regard for the actual needs and capacities of the groups and individuals affected. Under apartheid, the rights and interests of the great majority of the people of the Territory are subordinated to the desires and conveniences of a minority. We here speak of apartheid, as we have throughout this Memorial, as a fact and not as a word, as a practice and not as an abstraction. Apartheid, as it actually is and as it actually has been in the life of the people of the Territory, is a process by which the Mandatory excludes the 'Natives' of the Territory from any significant participation in the life of the Territory, except in so far as the Mandatory finds it necessary to use the 'Natives' as an indispensable source of common labor or menial service.

190. Deliberately, systematically and consistently, the Mandatory has discriminated against the 'Native' population of South West Africa, which constitutes overwhelmingly the larger part of the population of the Territory. In so doing, the Mandatory has not only failed to promote 'to the utmost' the material and moral well-being, the social progress and the development of the people of South West Africa, but it has failed to promote such well-being and social progress in any significant degree whatever. To the contrary, the Mandatory has thwarted the well-being, the social progress and the development of the people of South West Africa throughout varied aspects of their lives; in agriculture; in industry, industrial employment, and labor relations; in government, whether territorial, local or tribal, and whether at the political or administrative levels; in respect of security of the person, rights of residence and freedom of movement; and in education. The grim past and present reality in the condition of the 'Natives' is unrelieved by promise of future amelioration. The Mandatory offers no horizon of hope to the 'Native' population." (Memorials, pp. 161-162.) [Then follows a summary of the specific matters dealt with in the Memorials.]

Then followed submissions which included the following:

"3. the Union, in the respect set forth in Chapter V of this Memorial and summarized in Paragraphs 189 and 190 thereof, has practised apartheid, i.e., has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory;

5. the Union, by virtue of the economic, political, social and educational policies applied within the Territory, which are described [p 142] in detail in Chapter V of this Memorial and summarized at Paragraph 190 thereof, has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties under such Articles."

It will be noted that the submissions as formulated in the Memorials were narrower than those in the Applications. In the Memorials Applicants' whole case amounted and was confined to an allegation of deliberate oppression, which had been only one of several elements relied upon in the Applications. In view of subsequent developments this feature does not, however, appear of any great significance, and it is merely noted in passing.

4. In its Counter-Memorial the Respondent dealt in detail with Applicants' allegations, many of which were denied including those contained in paragraphs 189 and 190 of Chapter V of the Memorials.

5. Apparently in an attempt to limit the factual enquiry which would have been necessitated by the conflicting averments in the Memorials and Counter-Memorial, Applicants in the Reply added a further cause of action, which rested on an alleged norm of non-discrimination or non-separation, defined as follows at page 274 of the Reply:


"In the following analysis of the relevant legal norms, the terms 'non-discrimination' or 'non-separation' are used in their prevalent and customary sense: stated. negatively, the terms refer to the absence of governmental policies or actions which allot status, rights, duties, privileges or burdens on the basis of membership in a group, class or race rather than on the basis of individual merit, capacity or potential: stated affirmatively, the terms refer to governmental policies and actions the objective of which is to protect equality of opportunity and equal protection of the laws to individual persons as such."

They also relied upon an undefined concept referred to as "standards", but, in view of later definition and explanation of Applicants' case in this regard, it is not necessary to analyse the relevant parts of the Reply. The nature of the standards ultimately relied upon by Applicants will be considered hereafter.

6. Despite the introduction of the new cause of action based on the alleged "norm of non-discrimination or non-separation" and the undefined standards, Applicants in their Reply persisted with contentions which could be reconciled only with a case based on alleged oppression [p 143] (vide, e.g., Reply, pp. 53-55). The position at the commencement of the oral proceedings then was that Applicants' submissions were in the form stated in the Memorials and quoted above (in which allegations of oppressive conduct featured prominently) but in addition some reliance was placed on the existence of the alleged "norm of non-discrimination or non-separation" and undefined standards.

7. In the course of the oral proceedings Applicants' case was further defined and narrowed down. It is not necessary or desirable to trace in detail the manner in which this happened. However, some reference has to be made to the main aspects of the process by which Applicants' case came to be narrowed down.

The first aspect to which attention should be directed is that, by agreement between the Parties, the extent of the factual dispute between them was first whittled down, and subsequently reduced to negligible proportions.

The virtual elimination of disputes as to fact occurred gradually over a period, but there would appear to have been two main steps, the record of each of which may usefully be quoted. The first was an agreement reached between the Parties prior to the commencement of the oral proceedings, which agreement was communicated to the Court in the following terms:

"South West Africa Cases

Agreement Regarding Factual Averments

Subject to reserving their right to contest the relevance of facts contained in Respondent's pleadings, including the oral proceedings, Applicants agree that such facts—as distinct from inferences which may be drawn therefrom—are not contested except as otherwise indicated, specifically or by implication, in Applicants' Written Pleadings or in the oral proceedings.

This agreement pertains also to factual averments in respect of which no documentary proof has been filed, including statements made upon Departmental Information.

Any denial of averments made in the Rejoinder will be intimated by Applicants at the earliest convenient stage in the oral proceedings."

The further intimation foreshadowed in this agreement was given by Applicants' Agent on 27 April 1965. The effect thereof was that no averments or denials of fact by Respondent were contested by Applicants. For convenience I quote the relevant passage in the oral proceedings. It reads as follows:

"All facts set forth in this record, which upon the Applicants, theory of the case are relevant to its contentions of law, are undisputed. There have been certain immaterial, in our submission, [p 144] allegations of fact, data or other materials which have been controverted by the Respondent and such controversion has been accepted by the Applicants and those facts are not relied upon. The Applicants have gone further in order to obviate any plausible or reasonable basis for an objection that the Applicants have not painted the whole picture in their own written pleadings. The Applicants have advised Respondent as well as this honourable Court that all and any averments of fact in Respondent's written pleadings will be and are accepted as true, unless specifically denied. And the Applicants have not found it necessary and do not find it necessary to controvert any such averments of fact. Hence, for the purposes of these proceedings, such averments of fact, although made by Respondent in a copious and unusually voluminous record, may be treated as if incorporated by reference into the Applicants' pleadings." (C.R. 65/22, at p. 39.)

The effect of these admissions was to reduce and to alter the content and ambit of the dispute(s) between the Parties. The admissions constitute pro tanto a settlement of the dispute or disputes of which they formed a part. I know of no reason in law, logic or justice why full effect should not be given to them.

8. But the change in Applicants' case was not confined to the admissions to which reference has just been made. Amongst the most vigorously contested factual averments in the Memorials and Reply were those constituting or bearing upon the allegations that Respondent's policies were oppressive in intent or effect—allegations which were incorporated by reference in Submissions 3 and 4. It was therefore logically impossible for Applicants to accept as correct Respondent's averments or denials of fact whilst persisting in submissions based upon contested allegations of oppression. The logic of this situation (frequently commented on by Respondent's Counsel) eventually compelled Applicants to amend their Submissions 3 and 4 so as to delete all references to paragraphs 189 and 190 of Chapter V of the Memorials (in which the disputed allegations of oppressive conduct appear with particular vigour) as well as references to the said Chapter V generally, and to make it clear that Applicants relied solely on the alleged "norm of non-discrimination or non-separation" as defined at page 274 of the Reply (quoted above) as well as on "standards" FN1*. As regards the latter, I pointed out above that they had not been defined in the Reply. In the course of the oral proceedings, Applicants' Agent rendered it clear that the "standards" on which he relied were rules legally enforceable against Respondent in its capacity as Mandatory, and having exactly the same content as the "norm", i.e., as defined at page 274 of the Reply. I shall later deal with the differences between the concepts of "norm" and [p 145] "standards". At present I would emphasize only that as regards content they were alleged to be identical.
--------------------------------------------------------------------------------------------------------------------FN1* Text of amended submissions is given in para. 10 below.
--------------------------------------------------------------------------------------------------------------------

8. Both prior to the amendment of Applicants' submissions, and subsequently, Applicants made it clear that their whole case as regards alleged contraventions of Article 2 (2) was based on the existence of the alleged norm or standards of non-discrimination or non-separation. This occurred in the course of argument on the inspection proposal as well as on the merits, in reply to questions from the Court as well as to comment by Respondent's counsel. Applicants' final attitude was that there existed no dispute of fact between the Parties, inasmuch as Applicants had accepted all Respondent's averments and denials, and had stated clearly their whole case was based on the existence of the alleged norm or standards. In the words of the Applicants' Agent:

"The issue before the Court, accordingly, is whether the processes of the organized international community have or have not eventuated in international standards or an international legal norm, or both." (C.R. 65/31, p. 32.)

Whereas the Applicants originally defined apartheid as constituting wilful oppression and unjust discrimination, they ultimately emphasized that it was merely used in the sense defined in Submission 3.

9. The actual amendment of Applicants' Submissions Nos. 3 and 4, bringing them into conformity with the earlier admissions of fact and informal definitions of Applicants' case, occurred on 19 May 1965, just before Applicants' Agent rested their case. The amended submissions read as follows:

"Upon the basis of allegations of fact, and statements of law set forth in the written pleadings and oral proceedings herein, may it please the Court to adjudge and declare, whether the Government of the Republic of South Africa is present or absent, that:
……………………………………………………………………………………………………
3. Respondent, by laws and regulations, and official methods and measures, which are set out in the pleadings herein, has practised apartheid, i.e., has distinguished as to race, colour, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations [p 146] as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that Respondent has the duty forthwith to cease the practice of apartheid in the Territory:

4. Respondent, by virtue of economic, political, social and educational policies applied within the Territory, by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein, has, in the light of applicable international standards or international legal norm, or both, failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant; and that Respondent has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties under such Articles." (C.R. 65/35, 19 May 1965, pp. 69-70.)

In addition the following "formal .. . and explanatory comments with respect to the foregoing submissions" were presented to the Court:

"(a) The response to the question addressed to the Applicants by the honourable President during the course of the proceedings of 28 April 1965, C.R. 65/25, page 31, is hereby reaffirmed in the following respects, in particular:

1. The formulation of Submission 4 is not intended in any manner to suggest an alternative basis upon which the Applicants make or rest their case, other than the basis which the Applicants present in Submission No. 3 itself (reference is made to the verbatim record 65/24, 30 April, p. 11); the distinction between Submissions 3and 4 being verbal only, for reasons which have been set out in the cited section of the verbatim record.

2. The reference in Submission 4 to 'applicable international standards or international legal norm, or both' is intended to refer to such standards and legal norm, or both, in the sense as described and defined in the Reply at page 274, and solely and exclusively as there described and defined." (C.R. 65/35, 19 May 1965, pp. 71-72.)

11. It will be observed that all references to Chapter V of the Memorials, and in particular paragraphs 189 and 190 thereof, have been deleted. Submission 4, however, even without these references could still have been interpreted as a general allegation that the Respondent's policies, etc., fail to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. To avoid this possibility the Applicants resorted to two methods. The first was to qualify the general allegation of failure to promote well-being and progress to the utmost by the words "in the light of the applicable international standards or international legal norm or both". The second [p 147] method was to add the formal interpretations and explanatory comments, so as to make it abundantly clear that Submission 4 did not rest upon an alternative basis to that of Submission 3, and that both Submissions rested exclusively on the norm or standards defined at page 274 of the Reply.

10. If one now compares the final submissions with the original statement of the precise nature of Applicants' claims in the Applications, it appears that the claims based upon allegations of arbitrary, unreasonable, and unjust actions, and on conduct detrimental to human dignity, have disappeared from the final submissions. The same applies to claims based on allegations that Respondent had in fact failed to achieve the results contemplated by Article 2 (2) of the Mandate. Indeed it appears quite clearly that the allegation of failure on the part of the Respondent to perform its duties has been narrowed down to breaches of an alleged international norm and/or standards as defined at page 274 of the Reply. As I have noted, the amended submissions in all these respects correspond entirely with informal explanations repeatedly given by Applicants' Agent during the course of the oral proceedings. I shall deal more fully with the legal effect of the amended submissions presently.

Legal Principles Applicable to the Interpretation of Submissions

11. Rule 42 requires that a Memorial shall contain a statement of the relevant facts, statements of law, and the submissions. These submissions define the issues which the Court is asked to determine, i.e., they state concisely and precisely the conclusions the Court is asked to draw from the facts and the law, and the relief asked for.

Just as in municipal systems, where the statement of claim (which broadly corresponds to the submissions) may omit an issue included in the writ (which broadly corresponds to the Application commencing an action in this Court), so also in proceedings in this Court submissions may omit issues mentioned in the Application. Such an omission constitutes an abandonment of whatever is omitted, and cannot constitute a part of the issues before the Court.
It follows therefore, that only matters included in the final submissions will be considered, i.e., the Court will abstain from deciding issues not raised in such submissions.

12. Where two or more parties have decided to refer a particular dispute to the Court, and the submissions or special agreement fail to [p 148] define such dispute satisfactorily, it would appear that the Court may depart from the strict wording of the submissions or special agreement in order to decide the true issues which the parties intended to refer to it. Such action on the part of the Court of course postulates that there exists an actual intention of the parties which is not properly expressed in the submissions or special agreement. In the present case the proceedings are before the Court, not by ad hoc agreement between the Parties, but by Application in terms of a general compromissory clause, viz., Article 7 (2) of the Mandate. Consequently there can be no question of the existence of any common desire or intention on the part of both Parties to place a particular issue before the Court—it is the Applicants alone which invoke the Court's jurisdiction and the Court can at most enquire as to which issues they (i.e., the Applicants) wish to refer to it. It is of course obvious that a party is not compelled to invoke the assistance of the Court for each and every dispute which would be cognizable by it.

Where a particular provision in an instrument may be breached in more than one respect, the Applicant is not bound to allege that it was breached in all these possible respects. The Applicant may choose to allege a breach in one respect only, and deliberately formulate its submissions accordingly. Such a formulation would narrow the issue, and this Court would have no power to enquire whether some of the evidence placed before it might or might not constitute proof of a breach in a respect not alleged in the submissions. This is the more so when the Court knows that such other respect was deliberately deleted from the submissions, and for this reason all the evidence relative thereto that could have been placed before it has not been produced. If, e.g., Submission 5 was the only submission relative to Article 2, this Court would have had no authority to enquire into, say, the issues raised in the original Submissions 3 and 4, even if it has competence to deal with such issues if properly raised.

15. Where the particular respect in which a provision is alleged to have been breached is pin-pointed in the submissions, such particularization has the effect of narrowing the issues. Such particulars do not constitute the reasons for the allegation that the provision has been breached, but they serve to qualify or circumscribe such allegation so as to reduce the issue to breaches falling within the ambit of such qualification or circumscription. In other words such particulars are still bare averments by the parties presenting them, their purpose and effect being, inter alia, to indicate a precise limit to the factual allegations which the other party or parties are called upon to meet. They must be distinguished from arguments. Arguments do not define the alleged breach, but advance reasons why the Court should hold that a breach has occurred in the respects alleged in the submissions. Arguments consequently go beyond bare assertions. They provide the logical links between premises and conclusions—often the suggested links between facts (admitted, established or alleged) and the conclusions averred in the submissions. The Court is not bound by the arguments of the [p 149] parties in support of the averred conclusions in their submissions, whether such arguments are advanced of outside of the formulation of the submissions, but it is bound to confine itself to the dispute as particularized therein. It is only arguments, as distinct from particulars which narrow the issue, that the Court may disregard when construing the submissions. This is also the reason for the rule that the parties cannot force the Court to choose between two suggested interpretations of an instrument, since obviously the Court may find both interpretations unacceptable. However, this power of the Court is relevant only in so far as its interpretation may be a link in reasoning leading to acceptance of the submissions of either of the parties, or, possibly to a result of non possumus with reference to the submissions and issues before it. The Court is not entitled to proceed from its own interpretation to the making of an order not requested by either party.

16. In short, in a case like the present (assuming jurisdiction and admissibility), the Applicants are entitled to place any dispute falling within a defined category before the Court. To ascertain the nature of the dispute, reference must prima facie be had to the submissions. The Court may, in my view, depart from the submissions only where it is satisfied that they do not accurately reflect the intention of the Applicants, and where, in addition, the Court is satisfied that the Respondent had adequate knowledge or notice of the actual case sought to be made by the Applicants. It goes without saying that no court would decide an issue against a party who has not had proper and fair notice thereof.

17. If a question arises as to the actual intendment of the Applicants, or the sense in which Applicants' submissions were understood by the Respondent, the Court must in my view necessarily have regard, inter alia, to the statements of the respective parties. Of course, the Court is not bound by the parties' interpretation of the submissions. But where clarifications are incorporated in the final submissions as formal explanations and definitions they must be regarded as part and parcel thereof.

There also appears to be no reason why, in the case of any doubt as to the true meaning of a submission, the Court, or a member thereof, should not obtain an explanation by means of a question directed to the party concerned. In fact Article 52 of the Rules expressly authorizes the Court or a judge to ask for explanations, and there is no proviso excepting submissions from this provision. If the Court is not to have any regard to such explanations, there would be no point in putting any questions.

Where submissions are amended the Court, in construing such amended submissions, may, in case of doubt, have regard to the history of the case that led to or culminated in such amendments. [p 150]

18. Applying the above principle, I now turn to a consideration of the meaning and effect of Applicants' amended Submissions Nos. 3 and 4.

The Meaning and Legal Effect of Submissions Nos. 3 and 4

19 (a). It may be convenient to preface my discussion of this topic with some general remarks about the provisions of Article 2 (2), and the type of issues which could arise thereunder. For the purposes of these remarks I shall assume, contrary to the view expressed above, that the Court has jurisdiction to adjudicate on alleged contraventions of the Article. An applicant may, hypothetically, ask the Court to decide as a fact that a particular policy or measure does not promote well-being and progress, or is likely to harm well-being and progress. This does not appear to me to be the type of issue which could properly be determined by a court of law, or which the authors of the mandates system could have intended to be referable to a court of law. But, be that as it may, such an issue would at the very least necessitate a very full enquiry into the facts and circumstances pertaining to the policy or measure, or its field of operation.

(b) Alternatively, an applicant may ask the Court to hold that no attempt whatever has been made to promote well-being and progress, or that the mandatory's policies were directed towards some ulterior purpose. In my view, if the Court were to have jurisdiction at all in respect of alleged violations of Article 2 (2) of the Mandate, its powers would be limited to investigating only questions such as these. The Mandate conferred on Respondent "full power of administration and legislatioii over the Territory subject to the present Mandate as an integral portion of the Union of South Africa", and provided that Respondent might "apply the laws of the Union of South Africa to the Territory, subject to such local modifications as circumstances may require."

(c) These wide powers were of course limited by the general objectives of the Mandate. However, these objectives were embodied in expressions such as "the well-being and development of the inhabitants", and "promote to the utmost the material and moral well-being and social progress of the inhabitants". The effect of these provisions is—and this interpretation is conked by the French text—that the Respondent was placed under a duty to do its best to achieve the aforesaid objectives having regard to the resources available in the Territory and the realities as they existed both in South Africa and in the Territory, the latter having been contemplated as forming, or as capable of being treated as, "an integral portion" of the former.

(d) Quite clearly the grant of such extensive powers of government, coupled with such a broadly stated trust purpose, had the effect of vesting in the Mandatory a discretion to determine the methods and measures whereby it would endeavour to give effect to the trust. Such [p 151] a discretion is, indeed, a normal incident of powers of government. Thus in Lighthouses case between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No. 62, page 22, the Court remarked that:


"... any grant of legislative powers generally implies the grant of a discretionary right to judge how far their exercise may be necessary or urgent;... It is a question of appreciating political considerations and conditions of fact, a task which the Government, as the body possessing the requisite knowledge of the political situation is alone qualified to undertake." (Italics added.)

Similar conclusions were reached, specifically with reference to ‘C’ mandates generally, and South West Africa in particular, by eminent lawyers and commentators on the mandates system (vide Counter-Memorial, Book IV, pp. 387-389 and Rejoinder, Vol. 1, pp. 176-177, where reference is made to comments by Chief Justice Latham of Australia, M. Orts, Lord Hailey, Quincy Wright and Norman Bentwich).

(e) The essence of a discretionary power is that the holder of the power is entitled by law to choose between two or more alternative courses of conduct. When he so chooses, he does no more than he is entitled to, and a court of law, unless specifically granted powers of appeal, cannot interfere merely because it does not agree with the decision of the person exercising the discretion. In the absence of special provision, a court of law is not an appellate authority over the holder of such a power, and the court cannot substitute its own decision for his. The most a court of law could do by virtue of its normal powers is to enquire whether the acts in question were illegal; and it follows from the very nature of a discretionary power that an act is not illegal merely because a court considers that, had it been the holder of the power, it would have acted differently.

(f) Illegal conduct by the holder of a discretionary power occurs where he does not exercise his power at all, or where he exercises the power in a manner contrary to express or implied limitations, prohibitions or injunctions relating to such power. These limitations, prohibitions or injunctions may take a variety of forms. There may, for instance, be provisions regarding procedure or form, or limitations regarding the subject-matter to which the power relates or regarding the objects for which the power may be exercised. Failure to comply with such limiting or regulatory provisions may of course occur in complete good faith (e.g., by reason of a wrong interpretation of the provisions of the instrument) or it may be due to improper motives or some other form of bad faith.

(g) In the case of the Mandate, the limitations upon the Mandatory's powers were laid down in Articles 3, 4 and 5 of the Mandate Declaration(with which we are not concerned at the moment) and in Article 2 (2)thereof. The latter Article in effect lays down the objective to be pursued by the Mandatory. It follows, therefore, that an exercise of the Man-[p 152]datory's discretion would be declared illegal in terms of Article 2 (2) only where the Mandatory did not pursue the authorized purpose. Such a failure on the part of the Mandatory could, in practice, hardly arise from a bona fide misinterpretation of the Mandate. It is consequently difficult to imagine a case where a purported exercise of discretion by the Mandatory could contravene Article 2 (2) unless some element of bad faith were present. However, be that as it may, it seems clear that if the Mandatory as a fact attempts to achieve the prescribed result, its conduct could not be illegal merely because a particular method selected by it in the exercise of its discretion is not successful, or not as successful as another would have been. Of course, failure to adapt or discontinue an unsuccessful policy might well be some evidence of failure to exercise a proper discretion, but that is another matter.

(h) An improper purpose or motive may be proved in a number of ways, such as by direct statements of the person concerned. However, a more frequent source of proof is circumstantial evidence, including the nature of the act itself. If an act is so unreasonable that no reasonable person placed in the position of the holder of the power would have performed it, one may deduce that such act was motivated by some improper motive or consideration. Of course, such a conclusion can only be arrived at after considering all relevant facts including the purported purposes and effects of the act in question.

In a simple case the actual effect of a measure may constitute sufficient proof of an improper purpose. In the present case, however, the purposes to be achieved are the promotion of the material and moral well-being and social progress of peoples consisting of various ethnic groups differing widely in many important respects, and the methods adopted by the Mandatory were varied and complex. In these circumstances there is no practical method of determining whether or not the prescribed purposes have been achieved over any given period.

(i) Where a measure is part of an inter-related group of measures, such measure should obviously not be considered in vacuo but with due regard to its context. This context is affected, in the present case, by the circumstance that South West Africa was expected by the authors of the Mandate to be administered as an integral portion of South Africa. Consequently any appraisal of a measure applying to South West Africa must have regard to the over-all realities and exigencies of a largely integrated economy and administration.

(i) In the above discussion I considered various possible cases which an applicant might seek to institute under Article 2 (2) of the Mandate. I distinguished between the instances where the Mandatory is sought to [p 153] be called to task for failing to achieve the result of promoting well-being and progress, and where the allegation is that it is not properly exercising a discretion to pursue the objective of well-being and progress. I concluded that, if the Court could have dealt with the matter at all, the latter case was the only one which could possibly be brought. I would also add that this indeed appears to have been the type of case set out in the Memorials, viz., one based on allegations that Respondent had deliberately misused its powers for the purpose of oppression.

One further possible case under Article 2 (2) still remains—an applicant could conceivably adopt the attitude that the concept of promotion of well-being and progress had been authoritatively defined in one or more respects in a manner binding on Respondent and on the Court.

20. As now worded, the final submissions restrict the issues to a case falling within the last-mentioned category. Thus Applicants contend that conduct contrary to their nom and standards is, by a legal fiction, to be deemed incapable of promoting well-being and progress. Applicants have indeed rendered it clear that they do not rely on any of the other conceivable causes of action mentioned above. There is no allegation of omission, i.e., of a failure to exercise powers. This was emphasized by Applicants' Agent who repeatedly stated that the Applicants' case was not based on complaints that too few houses, schools, hospitals, irrigation schemes, roads, etc., were built. Furthermore, the final submissions as now worded do not allege improper purposes, wilful oppression, arbitrary or unreasonable conduct, or unfair discrimination, nor do they allege that Respondent's policies in fact failed to promote the material and moral well-being or social progress of the inhabitants. Applicants' Agent repeatedly stated that these were not the issues submitted to this Court, that the dispute between the Parties was a legal one, which did not require the Court to investigate either the Respondent's purposes, motives, state of mind or the effects of its policies. The Court was not asked to weigh the beneficial effect of a measure against the hardships imposed by that or another measure. Such references as were made in the Applications and the original submissions to improper purposes and harmful effects of Respondent's policies were later deliberately omitted. Similarly such references as were made in the original submissions to unreasonable, unjust and arbitrary conduct, deliberate oppression, etc., were intentionally deleted from the final submissions. If regard is had to the history of the matter, particularly the oral proceedings, and Applicailts' apparent desire to avoid at all costs an examination of the facts by this Court, the reason for these amendments becomes clear. In any event, the numerous statements by the Applicants' Agent, and particularly his explanations in reply to questions by members of the Court at about the time the amendments were made, leave no room for any doubt that the Applicants did not intend to raise, in their final submissions, any issue relating to breaches of Article 2 (2) on the grounds [p 154] of alleged unreasonable, arbitrary or unfair conduct, deliberate oppression, mala fides or any other improper purposes or unsatisfactory results. The submissions were therefore subjectively intended to include no more than their clear and unambiguous language conveys, Le., that this Court should hold that a policy which allots rights, burdens, status, privileges and duties on the basis of membership in a group, class or race, rather than on the basis of individual merit, capacity or potential, is illegal in terms of Article 2 (2) of the Mandate.

21. The effect of the submissions, read together with Applicants' formal definitions and explanations, is consequently that the norm and standards upon which the Applicants rely are contended to be absolute rules of law in terms of which measures which distinguish in the manner described are per se invalid, no matter what the facts and circumstances may be. Such policies of differentiation (i.e., discrimination or separation as defined) are in Applicants' Agent's own words "impermissible ... at all times, under all circumstances, and in all places". The alleged norm and standards apply, according to Applicants' Agent, irrespective of whether or not the policies in question in fact promote the progress and well-being of the population as a whole. For this reason he contended that no evidence relative to purpose, motive, effect, etc., would be relevant or admissible.

22. Respondent has never disputed that its policies do in important respects allot rights, duties, etc., on the basis of membership in the various ethnic groups in the Territory, and has indeed contended that the circumstances in the Territory are such as to render such policies desirable if not inevitable. Nothing need now be said about the merits of Respondent's policies. For present purposes it is important to note only that if the norm or standard as defined at page 274 of the Reply did exist and were applicable to South West Africa, at least a substantial number of Respondent's measures or policies would be in conflict therewith. The effect of this is that the issue before the Court, which is presented as being whether Respondent's policies violated Article 2 (2) of the Mandate, in reality turns only on whether Respondent is bound to conform to the alleged norm or standards in its administration of the Territory.

23. The phrase "in the light of applicable international standards or international legal norm" in Submission No. 4 is not part of the argumentation of the case. It was inserted with the deliberate object of [p 155] modifying and pin-pointing the issue, and constitutes an integral and vital part of the definition of the dispute submitted to this Court. In Applicants' Agent's own words it constitutes the "heart and core" of Applicants' case, on which they stand or fall.

The Court's Jurisdiction Relative to the Amended Submissions 3 and 4

24. I have now paved the way to demonstrate further reasons for dismissing Submissions 3 and 4.

25. As demonstrated above, the dispute embraced in the final submissions relates solely to the question whether or not a norm and/or standards of non-discrimination or non-separation exist and are applicable to the Mandate. As I have already noted, this issue was first raised during the Reply, and was elevated to the position of the sole issue sometime after the commencement of the oral proceedings. No averment has ever been made by Applicants that this issue was at any time the subject of negotiation between the Parties prior to institution of proceedings, or that it could not be settled by negotiation. Indeed, the record creates the impression that Applicants themselves did not at any stage prior to the preparation of the Reply contemplate the possibility of the existence of such a norm and/or standards—an impression which is strengthened, not only by the fact that the norm was evidently raised in the Reply in an attempt to escape the factual enquiry necessary for a determination of the dispute originally raised, but also by the consideration that among the alleged sources of the norm are found a number of instruments which came about after the institution of these proceedings. (Vide, e.g., some of the United Nations resolutions quoted in the Reply at p. 284; the Draft Covenant on Civil and Political Rights, quoted in the Reply, pp. 285-286; the Draft Covenant on Economic, Social and Cultural Rights, quoted in the Reply, p. 286; the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, quoted in the Reply at pp. 286-288 and the Draft International Convention on the Elimination of All Forms of Racial Discrimination, quoted in the Reply, pp. 288-289.) Alternatively, if we assume that Applicants had at an early stage, e.g., when filing the Applications in commencement of this action, considered the possibility of basing a claim on the alleged existence of the norm or standards, they refrained from setting out such a claim in the Memorials in the manner required by Article 42 of the Rules of Court, and thereby prevented the jurisdictional questions pertaining to such a claim from being raised and considered at the preliminary objections stage. In either event it is clear that the dispute has not been shown to be one which, in the words of Article 7 (2) of the Mandate. "cannot be settled by negotiation". Consequently, for this reason also, the Court in my view has no jurisdiction to consider the issues raised by Submissions 3and 4. [p 156]

26. I now turn to a further jurisdictional question which arises in regard to this part of the case. Article 7 (2) limits the Court's jurisdiction to disputes "relating to the interpretation or the application of the provisions of the Mandate". It would consequently not be enough for Applicants to show that the alleged norm or standards exist, and are binding on Respondent. Before the Court could make any order it would have to be satisfied in addition that the norm or standards have some bearing on the provisions of the Mandate. It may be helpful therefore to consider whether any rule having the content of Applicants' alleged norm or standard can at all be read into the Mandate. In this regard I wish to mention the following considerations:

(a) If it was intended that differentiation on the basis of membership of a group, class or race should be prohibited, express language to that effect would have been used in the Mandate.

(b) The very contrary is the position—the Mandate expressly authorized differentiation on the said basis in the provisions relating to military training and the supply of intoxicating spirits and beverages.

(c) The Mandate furthermore authorized the application of Respondent's existing laws to the Territory. It was generally known at the time that policies of differentiation were applied in the Union of South Africa, substantially similar to those employed in the Territory.

(d) Policies of differentiation were being applied when the Mandate came into force in comparable territories by several of the more important members of the League.

(e) The conduct of all the parties to the Mandate at all material times reveals that there was general acquiescence in the policy of differentiation.

(j) Practically all the specific policies objected to in the Memorials were applied in South West Africa during the lifetime of the League. Many of these policies were expressly approved by the League organs. At no time was any objection made on the grounds of a norm or standards as now contended for by the Applicants.

(ii) Policies of differentiation (many of them similar to those applied by the Respondent) were applied throughout the lifetime of the League by other mandatories. No objection was raised on the grounds now advanced by the Applicants. [p 157]

(f) As will be shown, the undisputed statements in Respondent's pleadings and the uncontradicted evidence of the expert witnesses strongly support the policy of differentiation: these witnesses all agree that, if the alleged norm or standards were to be applied, the promotion of well-being and social progress would not be advanced. This underlines the unlikelihood that the Mandate would at its inception have included such implied provisions, and shows that the subsequent incorporation thereof into the Mandate would have constituted a material amendment thereto.

27. It has not been, and in my view could not be, suggested that the Mandate has been amended to include the norm or standards relied upon by Applicants. It is clear that no amendment could have been effected without the consent of the Respondent, and it is common cause that Respondent has always vigorously resisted the imposition upon it of any rule of the sort relied upon by Applicants. It follows, therefore, that even if the alleged norm or standards were to exist, this Court would have no jurisdiction to consider alleged violations thereof, inasmuch as they do not constitute provisions of the Mandate.

28. In attempting to establish jurisdiction, Applicants contended, firstly, that the alleged standards were binding on Respondent by reason of an implied agreement in the Mandate itself, in terms of which the Mandatory was bound to submit to standards laid down by the supervisory authority. This contention, if accepted, would partly solve Applicants’ jurisdictional problems, but, for reasons to be dealt with later, it is in my view completely unsound.

29. As regards their norm contention, Applicants argued that Respondent was under an obligation in terms of the Mandate to govern in accordance with law, and that consequently any legal norm binding upon Respondent as the administering authority in respect of South West Africa would be enforceable under Article 7 (2) of the Mandate.

The argument rests on fallacy. The Mandate carried within itself no obligations other than those expressly or impliedly falling within its terms. Any other legal norms, rules or obligations that might be binding upon Respondent, as the governing authority in respect of South West Africa, would be so binding because of the particular considerations from which their binding legal force was derived, and not by reason of any provision, express or implied, of the Mandate. Such norms, rules or obligations might conceivably be derived from municipal law, customary international law, or treaty, and a violation of such a norm, rule or obligation would be unlawful not because of the provisions of the Mandate, but because of the relevant municipal law, international customary law or treaty. The point seems so axiomatic as hardly to [p 158] warrant discussion. If, for example, a ship belonging to a foreign government were to be damaged in a South West African harbour, and a dispute should arise in regard to possible liability on the part of Respondent as the harbour authority, such a dispute could surely not be said to relate to the interpretation or application of the provisions of the Mandate. The same would apply to a dispute arising under, Say, a commercial treaty between Respondent, as governing authority for South West Africa, and another State or States. It should be remembered that such a treaty could quite conceivably have been entered into with a State or States that were not parties to the Mandate+ .g., the United States of America, which never became a member of the League. Even as regards disputes between Respondent and another member of the League of Nations, Article 7 (2) clearly envisaged a distinction between those disputes concerning the provisions of the Mandate and those concerning some other norm, rule or obligation. If this were not so, the words "relating to the interpretation or application of the provisions of the Mandate" in Article 7 (2) would have been redundant and meaningless. Those words were clearly intended to have a limiting effect on the disputes which would be justiciable under Article 7 (2). And if Applicants' contention were correct, they would have no limiting effect at all, and should be regarded as pro non scrip to.

Consequently it is evident that no rule or obligation could be justiciable under Article 7 (2) unless it was specifically rendered a provision of the Mandate, either by the legal processes whereby the Mandate came into existence or by legal processes of amendment of the Mandate.

30. In a final attempt to establish jurisdiction, Applicants relied on the League resolution of 18 April 1946 as rendering Chapters XI, XII and XIII of the United Nations Charter relevant to the interpretation of the Mandate. This contention also bears on the merits of Applicants' case, and can be dealt with more conveniently at a later stage. At present it will suffice to Say that none of Applicants' arguments have convinced me that this Court has jurisdiction to determine the issue raised by the reformulated Submissions 3 and 4, and for this reason alone I think these Submissions should be dismissed.

30. I do not wish to rest my opinion on these jurisdictional points only. I shall consequently now turn to an examination of the sources suggested for the norm and standards in order to determine their validity or otherwise.

At the commencement it might be convenient to clarify a matter of terminology. I pointed out earlier that in Applicants' usage of the terms, the norm and the standards were legally enforceable rules both [p 159] possessing an identical content, i.e., as defined at page 274 of the Reply FN1. The sole difference between the two concepts was that standards were said to be binding only on Respondent as Mandatory, whereas the norm was said to be binding on all States, including Respondent in its capacity as a sovereign State. Bearing in mind the suggested distinction between the two types of rules, I now turn to the sources alleged to have given rise to them.
--------------------------------------------------------------------------------------------------------------------FN1 It is idle to turn to other definitions of standards and norms. Applicants have given explicit definitions of the sense in which they use them. To adopt other definitions would be tantamount to changing the case the Respondent was called upon to meet.
--------------------------------------------------------------------------------------------------------------------

The Sources of the Standards

32. I shall deal with the alleged sources of the standards first, and thereafter with the alleged sources of the norm, including sources which are said to be common to both the standards and the norm.

33. The Applicants contended firstly that the Mandate provides by implication that the organized international community in general, and the competent supervisory organ referred to in Article 6 of the Mandate Declaration in particular, were empowered to enact legal rules relative to the administration of the Territory (called "standards" by the Applicants) to which the Respondent was obliged to give effect. Secondly, the Applicants contended that, inasmuch as the Respondent was a Member of the United Nations Organization and the International Labour Organisation, it was not only bound by the constitutions of these institutions but also by "the authoritative interpretation thereof "by the organs of these institutions, and that, therefore, the provisions of the constitutions of these institutions, thus interpreted, constituted standards binding on the Respondent in its administration of South West Africa. The Applicants further contended that in any event the legal effect of the League resolution of 18 April 1946, which referred to Chapters XI, XII and XIII of the Charter, is that the Mandate "must be read in the light of the Charter".

(a) The Supervisory Authority under Article 6

34. It is of course basic to Applicants' argument regarding the alleged standard-creating competence of the supervisory authority that there still exists an authority vested with supervisory powers in respect of South West Africa as a mandated territory. In an earlier part of this opinion I expressed the view that Article 6 of the Mandate had lapsed on the dissolution of the League and that Respondent was no longer subject to any duty of accountability to any authority whatsoever. If this view is correct, it would by itself dispose of 'Applicants' con-[p 160] tention with which I am dealing at present. The same result may, however, also be reached in different ways. In this regard the question arises whether any supervisory authority in respect of Mandates ever possessed competence to impose binding rules of conduct upon the Mandatory. To this enquiry I now turn.

(i) The Council of the League

35.I shall commence by first considering whether the supervisory organ referred to in Article 6 of the Mandate itself was clothed with competence to establish such legal rules. (It would appear that if the specific supervisory authority was not assigned such competence, the whole basis of the Applicants' further submission relative to the competence of the organized international community in general also collapses.)

What strikes one forcibly when examining the provisions of the Covenant and the mandate instrument, is that no express provision in support of Applicants' contentions is to be found therein. If it was indeed the intention of the authors of these instruments that the League Council would have the legislative powers now contended for by the Applicants they would have said so in clear and unmistakable terms. In those exceptional cases where a decision of the Council had a law-creating effect, i.e., could bind members of the League who had not assented thereto, explicit language was used. See, e.g., Articles 5 and 15 of the Covenant. In addition, all decisions relative to mandate administration required unanimity, and if indeed, as assumed by the Court in 1962, the Mandatory was given the right to vote where its Mandate was concerned (a matter to which I alluded above), no unanimity could be obtained without its co-operation. It follows that the Mandatory would then not have been bound by any resolutions not acceptable to it.

36. Be that as it may, an examination of the scheme set out in Article 22of the Covenant by itself reveals the untenability of Applicants' contentions. Paragraph 2 States in terms that the "best method" of giving practical effect to the principle that the well-being and development of the peoples of the territories concerned form a sacred trust of civilization, is that the tutelage of such peoples should be entrusted to advanced nations, who by reason of their resources, their experience, or their geographical position could best undertake this responsibility. This tutelage was entrusted to certain countries as mandatories on behalf of the League: it was not entrusted to the League. The tutelage became the responsibility of the mandatory. In the case of South West Africa, paragraph 6 of Article 22 provided in express terms that it "can best be administered under the laws of the Mandatory as integral portions of its territory". The only qualification of this wide statement was that such administration was to be subject to the safeguards mentioned in the interests of the indigenous population, i.e., provisions relating to [p 161] freedom of conscience and religion, the slave trade, arms traffic, liquor traffic, military training of Natives, etc. If it was intended that the Council of the League could without the Respondent's concurrence prescribe the standards upon which the legislative measures applicable to the Territory should be based, the Respondent's legislative and administrative powers would hardly have been expressed in such wide and unqualified terms.

37. This conclusion is confirmed by the events which took place before and during the drafting of the Covenant. Earlier proposals that the League itself should be vested with complete authority and control and that it should be entitled to govern the territories which eventually became mandated territories by delegating its powers to States or "organized agencies", were abandoned, and the final outcome was that the League's functions were to be limited to examining the mandatories' annual reports with a view to ascertaining whether they had performed their duties, and to assist and advise them. No right or duty was conferred upon the League to prescribe from time to time standards binding upon the mandatories in general, or upon any particular mandatory.

The supervisory powers of the Council were accordingly stated in the following terms in Article 22, paragraph 7, of the Covenant: "In every case of Mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge." This can clearly not be read as providing that the Council was empowered to lay down legislatively (i.e., without the mandatory's consent) standards binding on the mandatory. It is true that, in terms of paragraph 8 of Article 22, the Council was authorized to define the degree of authority, control or administration to be exercised by the mandatory. But this power is not relevant to the present discussion since it was obviously intended to be exercised only once, i.e., for the purposes of framing the mandate instruments. That this is so, appears not only from the provisions in paragraph 8, which made the Council's function in this respect dependent on whether or not such degree of authority, etc., had not previously been agreed upon by the members of the League, but also from the mandate declarations themselves which in effect provided that the mandates would not be amended without the consent of the mandatory and the Council. Paragraph 9 of Article 22 provided for the creation of a "permanent Commission" which was to advise the Council on all matters relating to the "observance" of the mandates. If it was intended that the Council would have legislative powers in respect of the mandates, the functions of this expert commission would not have been confined to advising on the "observance" of the mandates, but would also have related to the enactment and amendment of standards from time to time.

38. An examination of the provisions of the Mandate Declaration leads to the same conclusion. This Declaration could not amend Article 22 of the Covenant, and must therefore always be read subject thereto. [p 162] Full power of legislation and administration, subject only to the pro-visions of the Mandate, was granted to the Respondent. No such power was vested in the Council of the League. The obligation to promote well-being and progress to the best of its ability, having regard to the resources available to it, was imposed on the Mandatory; and the Mandate provided that the Mandatory would have the discretionary powers required for the effective discharge of such an obligation. These powers were in no way fettered by an obligation to comply with standards imposed by the organs of the League.

It will be recalled that the Mandate was issued as a formal act of the League Council. If the Council had thought that it could lawfully prescribe standards from time to time it would not have been necessary to include the provisions of Articles 3 to 5 in the Mandate. The Council could then, if it so desired, have prescribed these provisions as standards, which it could have amended, repealed or added to from time to time without the Mandatory's consent.

39. The Hymans report—it was issued even prior to the completion of the Mandate Declarations—in dealing with the obligations falling upon the League of Nations under the terms of Article 22 of the Covenant, made no reference to a contemplation that the supervisory organs of the League would lay down binding standards of government upon the mandatories. On the contrary it stated, inter alia, that "the Mandatory will enjoy in my judgment a full exercise of sovereignty in so far as such exercise is consistent with the carrying out of the obligations in paragraphs 5 and 6". Under a section headed "The extent of the League right of control", one also finds no reference to this alleged legislative power. On the contrary it was emphasized that the Council's power was limited to ascertaining whether the mandatory had remained within the limits of its powers under Article 22 of the Covenant and the Mandate Declaration, and whether good use had been made of such powers.

40. The conclusion that the Council possessed no competence to lay down binding standards is confirmed by an examination of the view which the League organs themselves took of their powers. At no time did they claim the power to lay down general rules in the nature of the standards contended for by the Applicants. On the contrary, the generally accepted view of their functions was that they consisted of co-operation with the mandatories and of determining how far the principles of the Covenant and the mandates had been truly applied. See Quincy Wright, Mandates Under the League of Nations, 1930, page 197. Bentwich, page116, states:

"The Commission... has been at pains to make it clear that it is not concerned itself, and that the Council of the League is not concerned, with the administration of the Mandated territory, which is the exclusive function of the Mandatory power."

41. For the above reasons, I find that the Council had no power to [p 163] lay down binding standards for the administration of the mandates.

(ii) The Permanent Mandates Commission

42. I now proceed to examine a specific contention of the Applicants, namely that the Permanent Mandates Commission had established certain standards which are binding on the Respondent. They allege that these standards are reflected in pronouncements of general principles or were "developed through continuous application of general criteria to concrete factual situations". The truth is that the Mandates Commission had no legislative powers. Indeed, it possessed no independent powers at all. Its function was limited to advising the Council. It is true that an interpretation of the mandate by the Permanent Mandates Commission which was accepted by the Council became a precedent to which a prudent mandatory would have had due regard; but this is something quite different from saying that such a precedent became binding law which had to be applied by each and every mandatory, irrespective of its particular circumstances.

The nature of the twofold task of the Commission was contrasted by Quincy Wright as follows:

"In supervising the mandates the Commission has felt obliged to limit its criticism by law. It does not censure the mandatory unless the latter's orders or their application are in definite conflict with the mandate or other authoritative text, but if such a conflict is reported by the Commission and the report is adopted by the Council the mandatory is bound to recognize it. It becomes an authoritative interpretation of the latter's obligations ...

In co-operating with the mandatories, however, though the League's powers are more limited, the scope of its suggestions is infinitely wider. It has not considered itself limited by authoritative documents but has formulated standards of good administration from the widest sources, and suggested whatever practical steps it deems expedient to give them effect. Such suggestions, however, even when endorsed by the Council, never have more than the character of advice. The Mandatory is free to differ from them though if based on an adequate understanding of the situation he will do well to consider them."

It is true that the Commission laid down certain standards for its own guidance but these standards were standards in the ordinary sense of the word—not standards in the sense of legal rules. Quincy Wright States at page 220:

"The Commission has found it necessary to establish certain standards for its own use on full realisation that these are in no sense binding but subject to modification by experience." [p 164]

In any event, although the Mandates Commission on one occasion, and individual members thereof on a few occasions, appeared to have been critical of certain aspects of some of the Respondent's policies of differentiation, the over-all impression gained from a detailed study of the Mandatory's and the Commission's reports is not only that the general principles of the Respondent's policies were not objected to by the Commission, but that in basic and important respects they were actually approved of. However, the point that I wish to stress at the moment is that neither the Mandates Commission nor the Council of the League ever attempted to lay down any standards which purported to constitute legal rules binding on the mandatories. No doubt they would have been extremely surprised to hear it suggested that they possessed such powers.

(iii) The General Assembly of the United Nations

43. If the League organs could not lay down standards in the sense contended for by the Applicants, it follows that, even if the General Assembly of the United Nations has been substituted for those organs, it similarly has no such power. Indeed, as far as I am aware, it has never been suggested that the United Nations possesses wider powers in respect of the Mandate for South West Africa than those formerly held by the organs of the League.

Thus this Court in 1950 expressed the opinion that the United Nations had supervisory powers under the Mandate relative to the Respondent's administration of South West Africa, but held that the degree of supervision should not exceed that which applied under the mandates system, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations. This was interpreted in 1955 by this Court (p. 72) "to relate to substantive supervision", and "to the measure and means of supervision", and meant that "the General Assembly should not adopt such methods of supervision or impose such conditions ... as are inconsistent with the terms of the Mandate or with a proper degree of supervision measured by the standards and the methods applied by the Council of the League".

At page 74 of the 1955 Opinion it was repeated that the 1950 Opinion "must be interpreted as relating to substantive matters".

In 1956, in his separate opinion, Judge Winiarski said: "I believe that the maintenance of the previously existing situation constitutes the dominant theme of the Opinion and that the decisive test is to be found in what was formerly done" (p. 33).

Judge Klaestad in his separate opinion iii 1955, at pages 87 and 88, stated expressly that decisions of the United Nations organs concerning reports and petitions relating to South West Africa have no binding force. It should be borne in mind that this statement was made on the assumption that the United Nations had succeeded to the powers of [p 165] the League relative to the Mandate. It also appears from the Opinion of the Court in 1955 that, on its view of the 1950 Opinion, the authority of the General Assembly to take decisions in respect of reports and petitions concerning South West Africa was derived from Article 10 of the Charter. This section authorizes the General Assembly to make recommendations and nothing more.
44. It is also significant that no legislative powers were given to the supervisory organs of the United Nations in respect of trust territories. See Kelson, Law of the United Nations, page 630. This also appears from Judge Lauterpacht's separate opinion in 1955, page 116.

Several examples are given in the aforesaid Opinion of States administering trust territories who asserted their right not to accept recommendations of the General Assembly or of the Trusteeship Council. It seems unlikely that the authors of the Charter would have granted lesser powers to the United Nations relative to trusteeship territories than had been held by the League relative to mandates—or that in the case of the one mandate not converted to trusteeship the United Nations should have greater powers than in respect of trusteeships.

(b) The Charter of the United Nations and the Constitution of the International Labour Organisation

45. The next contention to be considered is to the effect that by becoming a Member of the United Nations Organization and the International Labour Organisation, the Respondent as Mandatory became bound to give effect to the standards embodied in the constitutions of these Organizations as interpreted by their respective organs. As regards the United Nations Charter, Applicants relied mainly on Article 56 read with Article 55 (c). Assuming that these Articles created legal rights and/or obligations (a matter which is not free from doubt) it seems clear to me that they do not contain the standards relied upon by Applicants. The combined effect of the two Articles (in respects relevant to the present enquiry) is that Members of the Organization pledge themselves to take joint and separate action in co-operation with the Organization to achieve universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. It is to be noted that these Articles deal with distinctions as to race, sex, language or religion only in one context, viz., the context of "human rights and fundamental freedoms". At the same time the Charter does not purport to lay down or define these rights and freedoms, and, as is well known, subsequent attempts at drafting comprehensive and legally effective instruments for this purpose have not proved successful. In the result the whole concept of "human rights and fundamental freedoms" is as yet an undefined and uncertain one with no clear content. It is not, however, necessary [p 166] to consider this matter any further, since what is abundantly clear is that Articles 55 (c) and 56 cannot operate beyond the field of respect for, and observance of, "human rights and fundamental freedoms", whatever such concepts might mean. The Articles do not in terms deal with the subject of allotments of rights, burdens, privileges, etc., and they certainly do not, either in their wording or effect, prohibit all such allotments on the basis of race, sex, language, religion, group or class. That this is so, appears not only from the provisions of the Articles themselves, but from the Charter as a whole. Thus Article 73 of the Charter, dealing with "territories whose peoples have not yet attained a full measure of self-government", prescribes "due respect for the cultures of the peoples concerned" and that "due account should be taken of the political aspirations of the peoples" and that they should be assisted in the development of their "free political institutions according to the particular circumstances of each Territory and its peoples and its varying stages of advancement". Article 55 must be read with due regard to the provisions of Article 73 referred to above, and can accordingly not be interpreted to mean that a governing authority is prohibited from having regard to the political aspirations of different peoples inhabiting parts of the same territory, or to their varying stages of advancement, in selecting the criteria or measures to be adopted in promoting their well-being and social progress. On the contrary, Article 55 itself incorporates the principle of "self-determination of peoples" as one of its main objects.

46. Much the same situation exists with regard to the Constitution of the International Labour Organisation. The provision there relied upon (C.R. 65/34 at p. 57) was the following passage from the Declaration of Philadelphia which read:

".. . all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity . . .".

Here again the wording does not support the existence of a general prohibition of the allotment of rights, burdens, privileges, etc., on the basis of group, class or race. And this conclusion is strengthened by the express sanctioning of such differential allotments, at least in certain spheres, in the following passage from the same instrument:

"The Conference affirms that the principles set forth in this Declaration are fully applicable to all peoples everywhere and that, while the manner of their application must be determined with due regard to the stage of social and economic development reached by each people, their progressive application to peoples who are still dependent, as well as to those who have already achieved self-government, is a matter of concern to the whole civilised world."

This passage clearly indicates that the Declaration of Philadelphia [p 167] did not purport to establish, and cannot even be reconciled with a standard of the content relied upon by Applicants.

47. Possibly because they realized that the wording of these instruments did not support their thesis, Applicants relied mainly upon so-called "interpretations" of the instruments by the organs of the respective organizations. This was so particularly with reference to the United Nations Charter. Since the whole question of the weight and effect of resolutions and reports of agencies and organs of the United Nations has a wider relevance than purely with reference to so-called standards, it might be better to postpone a fuller discussion thereof to a later stage. At the present juncture I shall consequently confine myself to one aspect, viz., that no such resolution or report could lawfully add to or subtract from the meaning of the Charter in such a way as to bind the Court, which must necessarily give its own interpretation of any texts relevant to its judgment. Indeed, in the case of the International Labour Organisation Constitution this principle was expressly laid down in the following words of Article 37:

"Any question or dispute relating to the interpretation of this Part of the present treaty or of any subsequent convention concluded by the Members in pursuance of the provisions of this part of the present treaty shall be referred for decision to the Permanent Court of International Justice."

48. It is necessary to revert briefly at this stage to a matter already dealt with, viz., the jurisdiction of the Court to entertain disputes regarding alleged violations of the standards and/or norm. I expressed the view earlier in this Opinion that the Court would have no such jurisdiction inasmuch as such as dispute would not be one "relating to the interpretation or the application of the provisions of the Mandate".

It will be recalled that Applicants sought to overcome their difficulties in this regard, inter alia, by arguing that the Mandate itself contained an implied provision empowering the supervisory authority to lay down standards binding upon the Mandatory. I have given my reasons for regarding this contention as untenable, but even if it were sound, it provides no basis upon which alleged violations of the Constitution of the International Labour Organisation or of pronouncements of its organs could become justiciable in terms of Article 7 (2) of the Mandate. It surely cannot be said that the International Labour Organisation is in any sense a supervisory authority in respect of mandates.

49. It may also be convenient at this stage to deal with the merits of a further contention advanced by the Applicants which relates mainly to the question of jurisdiction, to which reference was made earlier in this Opinion. The contention is that the provisions of the Charter referred to in the League resolution on 18 April 1946 must, by reason of such reference, be regarded as being in pari materia with Article 2 [p 168] of the Mandate, and consequently relevant to its interpretation. Now as regards interpretation stricto sensu, i.e., the ascertainment of the meaning of a document, this contention is clearly untenable. I cannot see how the United Nations Charter, executed in 1945, could throw any light on the intentions of the authors of the Mandate, a document executed in 1920. What is possible, of course, is that the parties in 1946 could have agreed to attach a particular meaning to the earlier document, irrespective of what the intentions of the parties to such an earlier document might have been. It is clear, however, that the aforesaid resolution embodied no such agreement. It did no more than to note that Chapters XI, XII and XIII of the Charter embodied "principles" "corresponding" to those declared in Article 22 of the Covenant. It did not purport to attach an agreed meaning to the mandates, and, indeed, it could hardly do so with the blanket reference to Chapters XI, XII and XIII—Chapters which deal with classes of territories differing among themselves and from the mandated territories.

In passing it may be noted that this resolution, even if relevant in the sense contended for by Applicants, cannot serve to render applicable Articles 55 and 56 of the Charter, since these Articles are found in Chapter IX of the Charter, and not in Chapters XI, XII or XIII, which were the Chapters referred to in the resolution.

The Sources of the Alleged Norm

50.I now proceed to consider the Applicants' submission that the rule of non-discrimination or non-separation had ripened into a legal norm binding even upon sovereign States. I have already expressed my view that, even if such a norm were to have been created, this Court would not possess jurisdiction to determine disputes as to its observance. However, it may be as well also to consider the merits of Applicants' contentions in this regard.

Applicants contended that the norm had its origin in each or all of the sources of international law enumerated in Article 38 (1) of the Statute of this Court. I propose dealing with the various paragraphs of the Article in turn.

(a) Article 38 (1) (a)

51. The contention is that this paragraph, which authorizes this Court to apply international conventions, whether general or particular, establishing rules expressly recognized by the contesting States, has relevance, inasmuch as "the provisions of the United Nations Charter and the Constitution of the International Labour Organisation as interpreted by these organizations respectively bind the Respondent".

In essence, therefore, the argument is the same as dealt with above in regard to standards. There I expressed the view, which is equally applicable in the present context, that the instruments concerned cannot [p 169] be interpreted to lay down the rule relied upon by Applicants, that the organs of the organizations do not have the power to lay down such a rule by way of "interpretation", and that in any event, this Court has no jurisdiction to determine disputes arising from alleged violations of these instruments.

At the later stage I will deal somewhat more fully with United Nations resolutions and reports and will give my reasons for concluding that these pronouncements in fact did not even purport to lay down rules or standards of the content relied upon by the Applicants.

(b) Article 38 (1) (b)

52. The next contention relies on the provisions of Article 38 (1) (b) and is to the effect that through the collective processes of the organized international community, including mainly the resolutions of the United Nations relative to discrimination, and particularly those condemning the policies pursued by the Respondent in South West Africa and in the Republic of South Africa, there has arisen a norm of customary international law of the content contended for by Applicants. In this connection Applicants did not contend that they could satisfy the traditional tests applied by this Court in determining the existence or otherwise of "international custom, as evidence of a general practice accepted as law"; and indeed, it is clear that they could not. Applicants did not even attempt to show any practice by States in accordance with the alleged norm, but relied on statements of States relating, not to the practice of those or other States, but to criticism of the Respondent's policies. More attention will be given to this topic later, but at present I would like to mention that Applicants did not even seek to show that such criticism was in some way related to the creation, or existence, of a norm with a content as relied upon by them.

Indeed, the evidence before the Court, with which I shall deal later, showed that the alleged norm played no role at all in the United Nations activities relied upon.

53. Evidence as to actual State practice in regard to differential allotments of rights, privileges, burdens, etc., was indeed presented to the Court, but by the Respondent. In this regard reference may be made particularly to Professor Possony, who, after a long and careful survey of official measures and methods throughout the world, concluded :

"Mr. President, from what I have indicated to the Court with relation to the practice all over the world, there is no general observance of such a rule or norm."

Professor Possony’s review and conclusion were not challenged and certainly not in the least shaken in cross-examination.

54. As I have said, Applicants did not seek to apply the traditional [p 170] rules regarding the generation of customary law. On the contrary Applicants' contention involved the novel proposition that the organs of the United Nations possessed some sort of legislative competence whereby they could bind a dissenting minority. It is clear from the provisions of the Charter that no such competence exists, and in my view it would be entirely wrong to import it under the guise of a novel and untenable interpretation of Article 38 (1) (b) of the Statute of this Court.

55. In an alternative contention the Applicants suggested that even if the Respondent's opposition to the attempted imposition of a norm may prevent the norm being binding on the Respondent as a sovereign State, such opposition has no relevance to applicability of the norm to South West Africa. This contention is in my view devoid of substance. The authorities are agreed that no treaty can apply to South West Africa without the Respondent's consent, and it follows that since acquiescence is a prerequisite to the creation of a new norm, it is the Respondent's acquiescence that is required in so far as South West Africa is concerned.

(c) Article 38 (1) (c)

56. The Applicants next invoked the provisions of Article 38 (1) (c) to justify their alleged norm, which they contended should be distilled from the general principles of law recognized by civilized nations. The first fallacy in this contention is that this subsection does not authorize the application of the laws of civilized nations, it limits the Court to "the general principles of law" of these nations. It certainly does not mean that by legislating on particular domestic matters a majority of civilized nations could compel a minority to introduce similar legislation. If, for example, every State but one were to enact a law prohibiting the manufacture of atomic weapons, or enforcing the enfranchisement of women, the remaining State would not be obliged to bring its laws into conformity with the rest. In any event, the evidence of Professor Possony, Professor van den Haag and Professor Manning proves that such a rule is not universally observed, and that laws and official practices to the contrary exist in a large number of States, including the Applicants'. The fact that neither of the Applicant States observes this alleged norm or standards in their respective countries indeed reveals the artificiality of their cases.

(d) Article 38 (1) (d)

57. Although the Applicants also purported to rely on the provisions of Article 38 (1) (d) as a source of their norm, they did not refer to a single judgment, opinion or author confirming the existence thereof. [p 171]

Reports and Resolutions of United Nations Organs and Agencies

58. Since the first introduction of the alleged norm of non-discrimination or non-separation in the Reply, Applicants have relied heavily on reports and resolutions of United Nations organs and agencies. In their final argument these pronouncements indeed constituted the very basis of their case—they were the method whereby standards were said to be created, and provided the raw material for the attempted invocation of Article 38 (1) (a) and 38 (1) (b) of the Statute of the Court as providing the sources of the norm. For the reasons I have given, I find that these various pronouncements cannot in law create any rules of conduct binding upon Respondent. In addition, as I have noted, the United Nations reports and resolutions did not purport to apply or create any norm of the content relied upon by Applicants. I would, in concluding this part of my opinion, elaborate somewhat on this aspect, dealing particularly with the resolutions relating specifically to South Africa and South West Africa.

59. The detailed and uncontradicted evidence placed before this Court reveals that these resolutions were mainly the result of concerted action, by a large number of African States, assisted by many others, designed to bring about the immediate independence of South West Africa as a single unit to be governed by the indigenous peoples on the basis of universal adult franchise. Inasmuch as the Respondent's administration stands in the way of this objective, schemes were evolved in an attempt to have it terminated. Hence these proceedings, brought nominally by the Applicants only, but in fact by all these African States. As part of their campaign to achieve their aforesaid objective these States worked in close collaboration with certain so-called petitioners from South West Africa at the United Nations.

60. These petitioners have at all times asserted that they represent the Natives of South West Africa—assertions which were apparently generally believed at the United Nations. The uncontradicted evidence placed before us, however, reveals that their claims are false. Some of the organizations which some of them allegedly represent exist on paper only, and apart from the representatives of the Herero nation they do not represent the majority of any one of these Native groups. Even those who claim to represent the Herero nation do not always correctly represent the views of those people. Thus, whereas the Herero leaders in South West Africa apparently favour a system of regionalism whereby the Territory is to be divided on a federal basis between certain groups (but excluding the White group), some petitioners at the United Nations create the impression that what is desired by these people is that the Territory should be governed as a single unit.

A large number of petitions and statements by these petitioners, [p 172] containing numerous false and grossly distorted allegations relative to the Respondent's policies and practices in South West Africa, have been placed before the organs of the United Nations from time to time. The cumulative picture painted by them is one of oppression of the worst possible kind including genocide, slavery, concentration camps; that Respondent's policies were rooted in concepts of racial superiority and in racial hatred and animosity; that the best lands were being taken from Natives and given to White farmers, the Natives being driven to the desert or herded like animals; that education for the Natives either did not exist or merely prepared them for slavery; that there was large-scale militarization of the Territory and terrorization of the Natives, etc. Unfortunately these falsehoods were apparently accepted as true by a large number of States who voted in favour of the resolutions condemning Respondent's policies. Often these alleged acts were included in the term apartheid, and it seems clear that when Respondent's policies of apartheid were condemned it was in the belief that the petitions had painted a true picture. (One need merely have regard to the hundreds of false statements in the Applicants' Memorials—statements proved and admitted to be false— to appreciate the proportions of the technique that has been applied.) These resolutions patently did not purport to condemn Respondent's policies merely because rights, duties, status and privileges were allotted on the basis of membership of a group, class or race rather than on the basis of individual merit or capacity, as is sufficiently shown by the briefest reference to the relevant debates. It accordingly follows that there could not have been any intention of either creating, applying or confirming a norm or standards such as are contended for by the Applicants. Furthermore, even if these resolutions could for any purpose be regarded as laying down rules, their value is nil inasmuch as they are demonstrably based on untruths and gross distortions.

61. Even the resolutions dealing with the institution of these present proceedings against the Respondent did not mention this alleged norm or standards. The case to be brought against the Respondent was one of wilful oppression, and this was in truth the case originally stated against the Respondent in the Applications and the Memorials. As noted above, the case based on the breach of a norm or standards as defined by the Applicants first made its appearance, in the Applicants' Reply, and was embodied in the Applicants' submissions only shortly before their Agent closed his case. If the United Nations had intended to create, apply or confirm such a norm or standards it seems strange that the Members of the United Nations including Applicants were unaware thereof at all material times.

62. For all the reasons I have set out above, it is my view that this Court has no jurisdiction to entertain Applicants' case as now formulated, and that, in any event, it is unsound. [p 173]

The Effect of the Alleged Norm or Standards Introductory

1.I now proceed to consider what effect the application of the alleged norm or standards would have on the well-being and progress of the inhabitants of South West Africa. If, as the Respondent contends, the effect would be manifestly detrimental to all concerned, this would be an additional factor militating against the proposition that compliance with such a norm or standards forms part of Respondent's obligations under the Mandate.

My treatment of this subject will inevitably have to touch upon important and indeed fundamental aspects of Respondent's policies originally described by Applicants as unfair, arbitrary, unjust or wilfully oppressive, and therefore also upon certain of the items in Applicants' so-called catalogue. In the course of the discussion some light will be thrown on the question whether it would have been possible for Applicants to substantiate their original charges, had they attempted to do so. However, this would be merely incidental to my purpose, which is solely to consider the probable effect of the application of the suggested norm or standards FN1.

--------------------------------------------------------------------------------------------------------------------FN1 In view of the fundamental change in Applicants' case to which I have referred earlier, the origin al charges are no longer submitted to the Court for adjudication. It is therefore unnecessary to deal with them or to discuss systematically each and every measure of differentiation in the light of the original charges. As a result of Applicants' admission of all the facts set out in Respondent's pleadings, it seems that the original charges would have had to fail quite obviously in respect of Respondent's policies as a whole, and also quite obviously in respect of a con-siderable number of the specific measures referred to. In the case of any specific measures in respect of which such result might not be obvious, it would be impossible for the Court to adjudicate on the original charges with fairness and accuracy, inasmuch as the amendment of Applicants' submissions had the natural result that Respondent at the oral proceedings refrained from canvassing fully all the questions of fact which would have been relevant for such purpose.
--------------------------------------------------------------------------------------------------------------------

The History of the Territory and Its Peoples

3. The effect of any policies applied or suggested for application in South West Africa cannot be appreciated without a thorough knowledge of the salient facts concerning the Territory, its history and its peoples.

It is not possible to deal with these matters in detail in this opinion but some reference to the more important facts seems unavoidable.

3. South West Africa is a vast territory of 317,727 square miles, but in 1920 its total population was probably less than 250,000. At present the population is just above 500,000. The Namib desert stretches along its entire coast-line and constitutes more than 15 per cent. of the total land area. The bulk of the rest is semi-desert and subject to severe periodical droughts. Only a relatively small area in the north-eastern part has a high rainfall. Large portions of the Territory were never occupied [p 174] by any of the indigenous groups. They had no means of sinking boreholes or building dams, and were accordingly confined to areas where water was naturally available. Their numbers were in any event so limited in some parts that there was no need to occupy large areas. In the circumstances, coupled with the effect of ravaging internal wars during the nineteenth and early twentieth centuries, considerable portions of the Territory were vacant lands when the Mandate commenced.

4. At the inception of the Mandate the inhabitants of the Territory consisted of at least nine major population groups, occupying, to a large extent, distinct portions of the Territory, and differing widely as to physical appearance, ethnic stock, culture, language and general level of development. These groups (and even some sub-divisions of these groups) have at all material times considered themselves to be, and were generally regarded as, separate peoples or national groups. The European or White group (mainly of German and South African origin) was by far the most advanced. The remaining groups were all non-White and were, with the exception of a few individuals, entirely illiterate and primitive. Constant warfare between some of these groups had resulted in indelible hatreds. The main non-White groups were:

(i) the Eastern Caprivi peoples;
(ii) the Okavango peoples;
(iii) the Ovambo;
(iv) the Bushmen;
(v) the Dama (also known as Bergdama or Bergdamara or Damara of the Hills or Klipkaffir);
(vi) the Nama (also known as Khoi or Hottentots);
(vii) the Herero (also known as Cattle Damara, or Damara of thePlains);
(viii) the Rehoboth Basters and the Coloured group.

Groups (iv) and (vi) are Khoisan (colour brown), No. (viii) are half-caste groups, mainly mixture between White and non-White (light coloured), and all the others are Negroid.

5. It is due entirely to circumstances over which they had no control that the members of these national groups came to be the subjects of a single mandate.

The northern areas (which were never under effective German control) resemble four different countries, viz., the Kaokoveld, Ovamboland, the Okavango and the curious appendage known as the Eastern Caprivi. Each of them is inhabited, from historic times to this day, by its own people or peoples. The peoples of the Eastern Caprivi are ethnically related to those of Zambia and Bechuanaland. They have no ethnic relationship with any of the other peoples of South West Africa, have [p 175] never had anything in common with them, and are geographically separated from them by hitherto inaccessible swamps. Ovamboland is inhabited by a group of ethnically related tribes speaking, however, at least two different languages and various dialects. They form 45 per cent. of the total population of South West Africa. The Okavango and the Kaokoveld are each inhabited by smaller groups of ethnically related tribes. But whereas the Okavango group is ethnically linked with the Ovambo, the Kaokoveld group forms part of the Herero people, who immigrated from central Africa towards the end of the eighteenth century, and are ethnically, linguistically and in their social organization entirely distinct from all other groups or peoples in South West Africa.

6. Save for the Bushmen, who are in a sense dispersed all over the wilds of South West Africa, the other non-White groups live in various portions of the central and southern parts of the Territory—the parts which were patrolled by the German police and for that reason came to be known as the Police Zone. These groups include sections of the Herero, who were as from about 1830 engaged in almost continual warfare with various sections of the Nama, until the advent of German rule in the 1880s, and even thereafter. They include also the Bergdamara, yet another distinct Negroid group, who had arrived very early but were subsequently enslaved by the Nama and later also by the Herero, and who in course of time adopted the Nama language. The Rehoboth Basters arrived in the Territory from the Cape Province in about 1870 and settled in the Rehoboth Gebiet, where they governed themselves.

Wars by which the German régime was marred, shattered the tribal organizations and economics of the Herero and the Nama, and reduced their numbers by 1912 to less than 20,000 and less than 15,000 respectively. I refer later to efforts of the South African Government to restore their tribal organizations and to settle them, and also the Damara, in reserves or homelands.

7. Apart from the activities of a few explorers, missionaries, hunters, traders, etc., the advent of the White man to South West Africa was delayed until late in the nineteenth century.

In 1870 Walvis Bay and a small surrounding area became British territory. It became part of the Cape Province, and as such became part of the Union of South Africa. At present it is part of the Republic of South Africa but is administered as part of South West Africa.

The German reign over other portions of South West Africa commenced in 1884 and lasted till 1915.

During this period European soldiers, farmers, technicians, miners, traders and missionaries came to the central and southern portions of the Territory (the Police Zone) with the result that when the Mandate came into existence the White population was about 20,000. In 1913 [p 176]
White farmers owned 134,000 square miles of land, and in addition very large areas were held by companies owned by Whites. A modern economy was developed by the White population, resting mainly on diamond mining, and to some extent on livestock farming, though progress in the latter field had been limited. An extensive railway system was provided, which was during the First World War (after the conquest of the Territory) joined to that of South Africa. The revenue of the Territory, also largely dependent on the production of diamonds, was prior to the Mandate never sufficient to pay the costs of administration.

8. It seems obvious that it must have been realized by all concerned that in determining its policies relating to the administration of the Territory the Respondent would have due regard to the realities of the situation. These realities include the existence of the four distinct northern territories and peoples. The Respondent did not create these separate homelands, or the distinct nationalities living in them; they were there at all material times. In regard to the Police Zone the realities included the facts that the tribal economies of the Native peoples had been shattered, but that the Natives, undeveloped and illiterate, lacked the skills required for modern economic and administrative activities. They included also the under-populated state of the Police Zone, and the existence of the European population and the struggling modern economy established by it. The Territory, vast, mostly undeveloped, and poor, needed White leadership and initiative.

White immigrants were needed to maintain law and order, to manage and administer the mines, railways, harbours, hospitals and the civil service. Moreover, additional sources of income were desperately needed, and at that time the only practical way in which this could be obtained was through the introduction of more White capital, initiative and entrepreneurial skill. In particular the skill and initiative of progressive farmers were badly needed. The only role the Natives could initially play in the money economy was by providing unskilled labour.

Policies of differentiation such as, e.g., separate schools, separate residential areas, reserves for the different ethnic groups, influx control, etc., were applied by the Germans, and were being applied by the Respondent in the Territory at the time the Mandate came into existence. The vast differences between the different groups made this both natural and inevitable.

9. The way has now been paved for giving more specific consideration to some of the major aspects and implications of the policies and measures actually applied by Respondent after accepting the Mandate. I propose to do so under the sub-headings which follow. [p 177]

White Immigration

10. As has been indicated above, the resources of the Territory at the commencement of the Mandate were inadequate to pay for its administration. Circumstances compelled the Respondent to concentrate upon development of the modern economy already operative inside the Police Zone in order to obtain funds for the development of the whole Territory. There was no alternative, if stagnation was to be avoided. As was stressed by Professor Krogh in his expert evidence before this Court, the Respondent only recently became a capital exporting country, and when the Mandate was conferred upon it there could have been no contemplation that it would be expected to provide funds on a substantial scale for the development of the Territory. Nor were any international funds available for the purpose. The character of the rather limited natural resources of the Police Zone, and the problems attached to economic development thereof, were such as to require modern technology and entrepreneurship far beyond the capabilities of the indigenous inhabitants, considering their under-developed state and the indications provided by their past records of achievement. Add to these circumstances the shattered condition of the tribal economies and the underpopulated state of the Police Zone, and a policy of White immigration will be seen to have been natural and almost inevitable.

11. Such a policy was certainly foreseen by the powers concerned. The British Prime Minister, Mr. Lloyd George, in introducing the Peace Treaty to the House of Commons on 3 July 1919, stated, inter alia:

"There is no doubt at all that South West Africa will become an integral part of the Federation of South Africa. It will be colonized by people from South Africa. You could not have done anything else FN1.” (Italics added).
-----------------------------------------------------------------------------------------------------------FN1 Temperley, History of the Peace Conference, Vol. VI, p. 502.
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12. In these circumstances White farmers were encouraged to settle in the Police Zone area, and most Crown land not required for Native reserves was sold to these immigrants. The result was that within the first years of the administration 4,885,000 hectares of land were allocated to White farmers.

Scientific attention was given to agricultural development and to overcoming the various problems set by the natural conditions: e.g., the provision of water, where possible, through the drilling of boreholes and through appropriate forms of storage; the combating of stock diseases through methods such as inoculation, dipping, quarantine measures, selective breeding, etc.; the establishment of worthwhile farming in the very arid southern parts, through development, by research and scientific breeding, of a specially adapted strain of Persian Lamb (Karakul), producing an exceptionally high-grade type of pelt, etc. And thus the basis was laid for the development of a more diversified economy, as came about after the Second World War, when the fishing [p 178] industry was added (also through application of a high degree of technology) to the Territory's sources of production. All this naturally stimulated growth in commercial and professional activity, as well as in various minor forms of secondary industry, with the result of constant increases in the sources of revenue for the administration of the Territory and particularly for the upliftment and advancement of the indigenous peoples and the development of their homelands.

13. The fruits of the policy, particularly the benefits accruing to the non-White peoples, are spectacularly demonstrated by the extensive plans for further development as proposed by the Odendaal Commission and already in the course of implementation by the South African Government. But the fact is that no less important, though perhaps less spectacular, fruits and benefits have been enjoyed by the non-White peoples over all the years of progression to the present stage, as will appear in due course.

The achievement of the progress has taken time, having been delayed and set back through various factors such as the general economic depression of the early 1930s, exceptionally severe periodical droughts, the Second World War, etc. But it is generally accepted, significantly, that had it not been for the policy of encouraging White immigration and stimulating the growth of a modern farming industry, the Territory would have been reduced to irreparable bankruptcy during the world depression, when hardly any income was derived from mining.

14. The policy in question was applied with full knowledge of the organs of the League, who raised no objection thereto. And I may also refer to the confirmation yielded by two independent investigations, viz., by the van Zyl Judicial Commission in 1936 and by Lord Hailey in 1946, of the soundness of, and virtually inevitable necessity for, the policy. (See quotations in Counter-Memorial, Book IV, pp. 420-421.)

Recognition of the Diversity in the Non- White Population

15. I have referred above to the diversity of non-White ethnic or national groups in the Territory; to the differences between them as regards language, culture, political, social and economic organization, ways of life and standards of development; and to the extent to which they traditionally lived as distinct national entities in separate portions of the Territory. These matters form part of the admitted facts of record. They may sound commonplace when merely referred to in terms of broad generality; but they were made to live by the more detailed descriptions and illustrations given by the expert witnesses, particularly Dr. Eiselen, Professor Bruwer, Professor Logan and Mr. Pepler, in their uncontested testimony.

16. That the various groups wish to maintain their separate identity and to develop as distinct national entities is not only another one of the admitted facts, but was demonstrated so clearly by the above wit-[p 179]nesses, particularly Professor Bruwer, who had made special investigations as a member of the Odendaal Commission, and also by Mr. Dahlmann, who described the futile attempts that had been made within the modern political movements with a view to crossing the ethnic barriers.


17. In the light of these realities it is small wonder that expert after expert stressed the positive values involved in the various cultures and group solidarities, and the importance of granting due recognition thereto in any attempts at promoting the well-being of the individuals comprising the groups.

South African experts emphasized these matters on the basis of thorough knowledge and experience gained in southern Africa itself, particularly in South Africa and in South West Africa. Their conclusions were very forcibly confirmed by experts from other parts of the world — i.e., by Professor Logan, on the basis of thorough field research in South West Africa itself, and by Professors Possony, van den Haag and Manning, on the basis of knowledge and experience gained by mankind all over the world. Particularly the last-mentioned witnesses gave examples of the tragic consequences that had resulted in so many instances, in all parts of the world, from overlooking the importance of such matters.

18. The above considerations show that also this aspect of the policies which have actually been pursued by the South African Government since the inception of the Mandate flowed naturally and almost inevitably from the facts with which it found itself confronted. It did not create the diversity or the sociological phenomena concerned; these matters existed as realities which required recognition if attempts at promotion of well-being and progress were to stand any chance of success at all.

Implications of White Immigration and Population Diversity

19.Respondent's policy of encouraging the pre-Mandate White community to remain in the Territory, and of encouraging White immigration, gave recognition to the White group as an established part of the population of South West Africa. This was entirely within the provisions and contemplation of the Mandate. Having remained and come at the special invitation of the Mandatory, with the concurrence of the international supervisory organs, and having admirably fulfilled its intended function of developing a modern economy in the Territory for the benefit of the whole population, the White group undoubtedly has a moral right to remain and to be treated with at least the same consideration as any other group. The implications of this aspect of the situation required to be recognized by the Mandatory from the very inception of the Mandate, while it was encouraging the people concerned to remain and to come, and while those people were settling about the task intended for them.[p 180]

20. The implications were of considerable importance. For illustration I shall mention some that come readily to mind.

Had policies of separation and differentiation not been applied by the Respondent, the probability is that many of the White people who were already in the Territory would not have remained, and the badly needed immigrants would not have come. White technicians, professional people, farmers, miners, etc., would not have immigrated to the Territory unless they knew that their children would receive an education comparable to that obtainable elsewhere, and unless they could maintain their standard of living. There can be no doubt that cultural background and language problems would have made it completely impracticable to place White children and the children of the indigenous groups in the same schools. The evidence shows that where such differences exist both groups would suffer if they attended the same schools.

Without additional teachers the children of the immigrants could not be taught. Unless White teachers—and only White teachers were available—were offered remuneration commensurate with what they could earn elsewhere, their services could not have been obtained.

21.In all the above respects the circumstances and needs of the indigenous groups were vastly different. They were at a stage of development where it was necessary to begin to instil in them some realization of the desirability of having education at all, in the sense as known to Western civilization. The problem of their initial hostility and apathy towards education was aggravated by factors such as nomadic habits and scattered populations, the vastness of the Territory and its low density of population, the large number of languages, the poverty of the Territory, the shortage of teachers and the difficulties encountered in training suitable teachers.

The approach of educationalists—not only in regard to South West Africa, but generally in regard to the similar problems of African education everywhere—was that under such circumstances there were certain prerequisites before much progress along the lines of formal education could be expected. One of these was that mission societies should be encouraged to inculcate some appreciation of Christian and civilized principles and standards in the indigenous communities, and in connection therewith to foster some interest in education. Another was that wage-earning employment could in itself be regarded as an educational process, stimulating interest in formal education particularly because of the utilitarian values thereof. A further factor was that Native languages required study and development into written languages in order to serve the requirements of mother-tongue education, especially for the very Young.

Due to the language factor and the shortage of teachers generally, it was inevitable that teachers in Native education would mainly have to be Natives. Training sufficient Native teachers to a satisfactory [p 181] level unavoidably took a long time. Furthermore, the absence of direct contributions of any substance by Native communities to the costs of education, and the struggle of the territorial economy for a long time to balance its budget, were factors which tended to limit the funds available for Native education. In the circumstances, and considering the vast differences in social and economic levels between the White community and the various Native communities, it would have been most inappropriate to insist on exact parity as between these communities, e.g., in the quality of school buildings or in salaries paid to teachers. Such a requirement would have introduced a further artificial and unnecessary retarding factor in the pursuit of the objective of bringing education as soon as possible to as large a number of Native children as possible, and the sufferers would have been the Native communities themselves. The comparisons, in order to be appropriate, should not be with levels in the White community, but with comparable things in the particular Native community (or other African communities). Thus the quality of school buildings should compare favourably with other buildings utilized by that particular community and to which it is accustomed. Teachers' salaries again should compare favourably with salaries, wages or income commanded by other members of the same community in comparable forms of employment or activity. As Dr. van Zyl pointed out, Native teachers often enjoy very valuable privileges, e.g., subsidized housing, not accorded to White teachers. The levels concerned could and should, of course, rise with time, as they have in fact done, considerably, up to the present. But this should be in keeping with the general advancement of the particular group, otherwise internal balances become disturbed.

22. In brief, the point is that with the advent of the White group the Native groups did not cease to be indigenous African communities, comparable with similar communities elsewhere. The mere fact that there was now a White community living beside them, did not mean that their needs and circumstances had come to be identical with those of the White community. On the contrary, this brief discussion with regard to education provides a very clear illustration of the vast dif-ferences, confronting the Mandatory, in the social and economic circumstances and standards of development of the White group, on the one hand, and the various indigenous groups on the other, of the resultant vast differences in their respective needs, and of the necessity to minister to each group in accordance with its particular needs. In other words, the discussion demonstrates how inevitable it was for the Mandatory to differentiate if it were to seek the well-being and progress of all concerned.

23. The same result emerges from a consideration of other aspects of life, of which I wish to mention very briefly the political and the economic spheres. [p 182]

In the political sphere, the members of the White group were derived from countries in which they had been accustomed to share in the process of parliamentary self-government. Where they now formed a community with interests of its own in the Police Zone of South West Africa, it was a natural need on their part to enjoy a measure of such self-government within that Territory, on an appropriate, quasi-provincial basis, as was in fact extended to them in 1925. The Native groups had no tradition, experience or knowledge of parliamentary government, and. at that stage no interest in it (as was the case throughout Africa). Each group (save for the Bushmen) had its own traditional political institutions, each with considerable intrinsic value. The need of each group was to have such institutions respected—and in the case of the southern groups restored—and to have them suitably developed and adapted in course of time, under the control and guidance of the Mandatory, in accordance with changed circumstances and with advance-ment within the group itself. Again this was exactly the purport of the policies applied by the Mandatory.

24. In the economic sphere the needs of the groups again differed substantially, and in many respects were diametrically opposed. This necessitated reciprocal protections in order to ensure what Professor Krogh so aptly described as "social peace", a factor which is obviously essential for economic progress.

The indigenous groups required certain fundamental protections against the capital, the know-how and the exploiting ability, of the White man engaged in private enterprise. This meant the reservation of homelands for their exclusive ownership, use and occupation—save in so far as a small number of White man might be required to assist them, for such time as might be necessary, in essential services. It meant also the reservation of preferential opportunities for them in com-merce and industries within these homelands and even within Native towns in the White area. It meant control over recruitment of labour, labour contracts and conditions of service. Eventually it came to mean also legislation compelling employers of Native labour in the urban areas to combine with the local authorities and the central administration in the provision of fit and proper housing for their employees on a subsidized basis, in properly planned townships. In addition to such protections the indigenous groups needed assistance of varying kinds within their respective homelands, with a view to advancing and improving their subsistence economies and to transforming them gradually into money economies. Mr. Pepler in his testimony gave a very vivid description of the tremendous variation in the needs of the various groups in these respects, depending on their customs, their stages of development and their local circumstances; and he emphasized the necessity of adapting one's methods in each case to the needs and the peculiarities of the particular group. [p 183]

Members of the White group engaged in entrepreneurial activities needed fairly obvious protections against vagrancy, trespassing and similar or attendant activities on the part of members of an underdeveloped Native population.

Others, required for employment in skilled or semi-skilled capacities, could only be attracted upon wages and conditions of employment keeping Pace with those available elsewhere. The importance of competitive remuneration has been stressed by numerous authorities. It is not sur-prising that in certain limited fields of employment some of these employees demanded and were given special privileges, protecting them against the danger of eventual competition from members of non-White groups who might be offering their services at lower levels of remuneration.

Respondent's Land Policy

25. Basic to the implementation of the above policies has been Respondent's land policy, of which the main feature is the provision of separate areas of land for each of the population groups mentioned above. This policy was approved of by the Permanent Mandates Commission, which was—

"... of opinion that the soundness of the views which have prompted the Administration to adopt a system of segregation of Natives in reserves will become increasingly apparent if there is no doubt that, in the future, the Administration will have at its disposal fertile land for the growing needs of the population and that the reserves will be enlarged in proportion to the progressive increase in the population".

The undisputed facts show that provision of sufficient land to the indigenous groups has indeed been the concern of the Mandatory, and that there has in course of time been extensive increases in the reservations in their favour, both outside and inside the Police Zone.

26. Outside the Police Zone large areas of land were unoccupied at the inception of the Mandate. This is not surprising if regard is had to the relatively small population of this vast area at the time and the fact that the Natives could not augment their water supplies by sinking boreholes and building dams. As the populations of the different groups increased substantial increases were made in the land reserved.

In Ovamboland the Natives at the inception of the Mandate occupied only about one-half of the area which was later proclaimed as a Native reserve for the Ovambo people. Similarly a very much larger area than the strip along the Okavango River, originally occupied by the Okavango tribes, has been reserved for this group. In the Kaokoveld the area originally set aside for the tribes of this region has been increased from 418,500 hectares to more than 5,500,000 hectares. In the Caprivi [p 184] 500,000 hectares were added in 1939 to the area originally occupied by the Caprivians. An area of 350,433 hectares set aside in 1952 for Native occupation is to be added in part to Ovamboland and in part to the Okavango. There has been no reduction in the extent of land included in the reserves in the northern territories outside the Police Zone. On the conlrary, these areas have been increased considerably as appears from what has been said above and as appears more fully from the review and tables provided in the Odendaal Commission Report of the availability of land in the various non-European home areas. (Report, pp. 67-71.)

27.Inside the Police Zone, as I have mentioned, the Herero and the Nama had shortly before the inception of the Mandate been reduced in numbers to less than 20,000 and less than 15,000 respectively. Tribal economies had been shattered, and in 1913 approximately 80 percent. of the total non-White adult male population in the Police Zone were employed as wage-earners in the modern economy established by the White group.

In the case of the Herero, the German régime had confiscated all tribal lands and abolished all chieftainships, and had prohibited them from owning cattle. They were, after a century of warfare, dispersed over the Territory, and their traditional institutions, founded basically on the possession of cattle, were largely broken up.

The Nama were also largely dispersed, although some groups were permitted by the Germans to use defined pieces of land and to keep limited numbers of cattle.

The Damara were released from their bondage to the Herero and the Nama after the 1904-1907 wars. A Damara reserve was established at Okombahe, where some of them settled.

On the assumption of the Mandate Respondent found it desirable to restore, as far as possible the tribal life and social organizations of the various Native groups in the Police Zone. This policy was clearly in accordance with the wishes and best interests of the groups concerned, and nobody doubted its wisdom. For this reason it was considered necessary to establish reserves for the Herero, as well as the other groups, and to extend such reserves from time to time as circumstances might require. From the above-mentioned review in the Odendaal Commission Report, it will be seen that the reservations in favour of Native groups (i.e., excluding the Rehoboth Gebiet for the Basters, to which there have been no additions) were increased from a total of about 1 million hectares to a total of over 6 million.

28.The Odendaal Commission has recommended further very substantial increases in the Native reserves, both inside and outside the Police Zone, together with certain consolidations in the Police Zone. The proposals have been accepted in principle by the South African Government, and full implementation is awaiting the decision in this case. The over-all gain is about 50 per cent. (from 21,600,000 hectares to 32,600,000 hectares). In the Police Zone where more than 3,400,000hectares presently owned or occupied by White persons are being [p 185] acquired for the purpose, the total increase will be more than 110 per cent.

29. The present land allocations involve that about 45 per cent. of the Territory's total land area is occupied by White farmers, whereas the reserves amount to about 27 per cent. This ratio, as well as the exact areas of allocation, has been the product of the historical and economic considerations dealt with earlier in this opinion. This situation is not intended to be a permanent one, as is shown by the Odendaal Commission's recommendations above referred to. The adjustments now proposed will make the total area of the reserves nearly as large as the area of White occupation. It must of course be borne in mind that the areas occupied by the Natives in the north have far superior possibilities for agriculture. Only 20 per cent. of the present European farming area receives an annual rainfall of 400 or more millimetres, which is the minimum for dry-land farming, whereas the figure for the non-White areas is 48 per cent. The area of the land in the latter areas, receiving an annual average rainfall exceeding 500 millimetres, is nearly two-and-a-half times larger than the corresponding White areas. The livestock-carrying capacity of the northern and north-eastern regions is eight or less hectares per large stock unit, whereas in the areas occupied by European farmers the capacity decreases progressively from north to south from nine to 45 hectares per large stock unit. Seventy per cent, of the total non-European population, and only 20 per cent. of the Whites, are to be found in the most favourable region.

It must further be borne in mind that because of the superior use made by the White group of the land available to it, and of the economic opportunities presented thereby, very large numbers of non-White persons in fact make a livelihood within the White area, either as wage-earners or in business or professional occupations. This is likely to be the case for a long time to come, whether such non-White persons will be living in their reserved homelands or in the White area.

30. It will also be recalled that Mr. Pepler informed the Court, on the basis of scientific surveys and assessments made by his department, that far more people and far more stock could be accommodated in the various existing reserves than are found there today and that the existing reserves plus the proposed extensions made ample provision for present population numbers purely as farmers, quite apart from the additional prospects offered in regard to the secondary sector of the economy.

31. Of course the carrying capacities of the reserves depend not only on their size and natural endowments, but also on improvements effected by man where possible. In this respect much has been done by [p 186] Respondent, with resultant substantial increases in the number and quality of the stock. The steps taken by Respondent included the development of water supplies by sinking hundreds of boreholes and wells and building dams, the combating of stock diseases, and the improvement of the quality of the stock by selective breeding and the introduction of well-bred bulls and rams.

The population is being guided to greater productivity by means of education and a gradual adaptation of their traditional economic practices and social institutions. Crop rotation and suitable crop varieties are introduced. Experts visit the reserves, and all advice is free. Breeding stock is sold to the inhabitants of the reserves at cost or even below cost.

32. The Odendaal Commission Report, and the South African Government's reaction thereto, envisage further large-scale improvement schemes in the non-White homelands, some of which are already well under way. Reference may be made to the Government White Paper on the Commission's recommendations, as reprinted in the Supplement to the Counter-Memorial, especially to the following:

(a) Pages 12-13 (paragraph 7) regarding a large-scale water and electricity scheme for Ovamboland and various smaller schemes for other homelands;

(b) Pages 13-15 (Paragraph 8, particularly sub-paragraphs (a) (ii)and (b)) regarding roads and air services;

(c) Page 16 (paragraph 9 (b)) regarding mining;

(d) Pages 16-17 (paragraph 10) regarding industries;

(e) Page 17 (paragraph 11) regarding agriculture.

33. In regard to all additions and improvements to Native reserves, as dealt with above (paragraphs 26-32), it will be observed that they are part of the fruits that have been and are being enjoyed by the peoples in question from the Respondent's basic policy of stimulating a modern economy in the Police Zone through White enterprise.

One should bear in mind that, whereas members of the White group have to pay for their farms, all additions to the Native reserves (with the exception of one farm) have been on a gratuitous basis. By far the greatest amount spent on improvements in the Native reserves is derived from public monies, whereas European owners of private farms pay for their own improvements. The Natives pay no taxes other than to their Native trust funds, which are used exclusively for their benefit.

In times of drought every possible kind of assistance is given to the inhabitants of the reserves. All reasonable steps are taken to save stock losses and grazing is made available. Food is subsidized, and free issues [p 187] of food are supplied to the aged and incapacitated, to hospitals and to schools.

Progress and Development in the Application of Respondent's Policies

34. The period after the Second World War, particularly as from about 1950 until today, saw marked progress in and as a result of the application of Respondent's policies, and also certain adaptations in the policies themselves in the light of changed circumstances. I wish to devote very brief attention to these developments, in the political, economic and educational spheres, and in general.

35. In the political sphere, there is in operation in every Native homeland (except that of the Bushmen) a form of self-government practiced with Respondent's encouragement and approval. The details differ from people to people, the important consideration being to allow to each people the system derived from its traditions. In some systems there are hereditary chiefs together with elected headmen, in others councils of elected headmen. Elections or appointments are made through traditional processes. Respondent, while retaining ultimate control and seeking to afford guidance to progress, interferes as little as possible either with elections or appointments or with acts of self-government.

In the light of awakened interest, in African communities generally, as regards national development towards self-determination or independence, it is Respondent's policy to utilize the traditional systems as a basis for further development and modernization, with the cooperation of the groups concerned, especially by the introduction of more democratic elements, and so to pave the way for each people to develop by evolution to a stage where it can determine its own future destiny.

The soundness of such an approach was fully endorsed by the Odendaal Commission, who made proposals for practical implementation thereof. The proposals noted above in regard to extension and consolidation of the various homelands, and their further economic development, are all, apart from their intrinsic merits, designed to contribute to the effective and fair implementation of the policy of separate freedoms.

Specifically in the political sphere the Commission recommended, in respect of each such territory, the establishment of a separate citizenship and general franchise, and a parliamentary system of government, combining elected representatives with the existing governing bodies. The proposals envisage a gradual taking over of powers from the South African Government, and a gradual Africanization of the civil service in each case.

The basic consideration is that each group, including the White [p 188] group, will govern itself only, and that domination of one group by another will be avoided. On reaching maturity each group may decide for itself whether it wishes to stand on its own legs or to enter into some political or economic or other ties with another group or groups. Possibilities are endless, but South African political leaders have indicated preference for a possible organization operating on the lines of a commonwealth or common market, i.e., on a basis of consent as between equals and not a basis of majority rule. This idea offers prospects for regional co-operation in southern Africa over an even wider area than the Republic and South West Africa.

36. In regard to the economic sphere, reference has already been made to the progress achieved in regard to development of the homelands, and to the further projects now under way.

As regards other aspects of economic well-being and progress, the evidence and admitted facts show that the earnings of Natives in the Territory compare favourably with all other comparable countries. It is also significant that Applicants had to concede that they were not alleging that the Respondent had not built enough houses, schools, roads, hospitals, irrigation schemes, etc.

Another noteworthy aspect of economic progress is that which has flowed from the policy of giving preference to members of a group in regard to economic opportunities within the homeland of that group, and to Natives in general within Native townships in the White area. These protected opportunities must be of enormous value. Just as the best land in Native homelands would soon pass into White ownership if that had not been forbidden by law, very few, if any, Natives could probably, as at the present stage, compete successfully with White men in regard to exploitation of commercial, industrial and professional opportunities within the homelands and townships. By the policy of protection and special encouragement, however, e.g., through the waiving of prescribed licence fees, the administration has succeeded in establishing hundreds of Native businessmen in their areas and townships; numerous teams of specially trained Native artisans are engaged upon the development and building projects under way in the homelands and townships; Native teachers in 1963 numbered over 1,200, and increasing numbers of Natives are employed by the Government in their own areas as inspectors, secretaries, clerks, etc.

37. In the sphere of education, marked progress was made in regard to Native education as from 1950 onwards. School enrolment figures more than doubled themselves between 1950 and 1962—from 22,659 at the earlier date to 47,088 at the later. In 1963 there was a further increase [p 189] to 49,297. The 1962 figure was estimated by the Odendaal Commission to represent about 46 per cent. of the over-all possible school population. The estimate for the present time is about 52 per cent. The Odendaal Commission recommendations set their target at an increase to 60 per cent. in all Native homelands by 1970. These attendance figures compare more than favourably with those in other African States. The 1960 figure (40 per cent. of the over-all possible school population) represented 9.2 per cent. of the total Native population in the Territory: the corresponding percentage for Ethiopia (in 1961) was 0.910 and for Liberia (also in 1961) 4.421. For the African States as a whole, the proportion of school-age population at school in 1961 was given by a United Nations publication as 16 per cent. In individual States the percentage ranged from less than2 percent. to "nearly 60 per cent." And "in the majority of cases, the proportion of children out of school exceeds 80 per cent." (Unesco/ED/180,p. 5.)

There is in South West Africa still an unsatisfactory falling off in attendance figures in higher standards, but the situation is improving. It may be expected to improve yet further upon implementation of the Odendaal proposals. These involve the taking over of Native education in South West Africa by the Bantu Education Department of the Republic, and the application by it of the methods of the Bantu education system which have been such a triumphant success in the Republic, as described to this Court by Dr. van Zyl in his evidence FN1. Further the proposals involve more advanced and greater numbers of schools, hostel facilities and facilities for the training of teachers. The Commission estimated that expenditure on the buildings alone would, in the case of the non-White groups, amount to R3,500,000 over the first five years.
--------------------------------------------------------------------------------------------------------------------FN1 The information he gave included the following: In 1964 nearly 2 million Bantu children were at school, being over 80 per cent. of the school-age population, and nearly 32,000 Bantu teachers, including school principals, were employed. There were at present 55 Bantu school inspectors and 170 Bantu assistant inspectors. At the end of 1965 about 1,300 Bantu candidates were expected to write the official school-leaving examination (Matriculation or Senior Certificate, the same as for White and Coloured persons) of whom about 800 were expected to pass. For the Junior Certificate (two years lower) the candidate figure was 12,000, of whom, 7,000 to 8,000 were expected to pass.

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38. In general the picture of South West Africa emerging from the admitted facts and the uncontested testimony is one of orderly, evolutionary progress, with the overwhelming majority of the inhabitants, White and non-White, manifesting their support for Respondent's policies in ever-increasing measure. In the case of the non-White peoples this was demonstrated, inter alia, by the enthusiasm evoked by a recent visit, at their own request, of leaders of a number of groups to the Republic of South Africa, in order to see developments in the Transkei and other [p 190] examples of application of the policy of separate development in the Republic.

Results of Applying the Alleged Norm or Standards

39. Against the background of what has been set out above, it seems self-evident that application of the suggested norm or standards in South West Africa is likely to prove disastrous, as was indeed emphatically stated in evidence by one expert after another.

40. In the political sphere which is largely the key to well-being inall spheres, application of the norm or standards would mean that Respondent is obliged to treat the Territory as an integrated unit, to be governed by a central parliament elected on the basis of a system that will ultimately be one man one vote.

Mr. Cillie in his evidence pointed out that this would mean domination by the Ovambos, forming 45 per cent. of the population, or by ruthless men exploiting their numerical preponderance; the domination would mean submergence of the most developed minority groups—the White, the Coloured and the Rehoboth groups—as well as the least developed ones—the Bushmen and the tribes of the Kaokoveld.

"It means to these people, as it means to the Whites, that they are being forced to commit a form of national suicide, and that prospect evokes all the forces of resistance that you would expect in any nation in similar circumstances." (C.R. 65/61, p. 101.)

Later he said pointedly: "It would mean chaos" (C.R. 65/61, p. 146).

One need merely have regard to chaotic conditions existing or developing in numerous African countries, where several relatively underdeveloped nations constitute one political State, to realize that if the Applicants' policy is applied under present circumstances the inevitable result would indeed be retrogression and chaos. The sad histories of numerous African States, e.g., the former Trust Territory Ruanda-Urundi (now Rwanda and Burundi), the former French Cameroons, Algeria, Ghana, the Congo, the Sudan, Kenya, Zanzibar, Togo, Nigeria, the Central African Federation of the Rhodesias and Nyasaland, and other States—such as Cyprus—speak for themselves.

When universal franchise is introduced into a fairly homogeneous Society there is a reasonable prospect of success, even where the general standard of development of the electorate is fairly low. But when various national groups differing widely as to physical appearance, ethnic stock, culture, language, and standards of development are being integrated into the same political system, failure seems to be inevitable. The tensions, uncertainties and disharmonies which arise from attempts at assimilation of peoples with gross dissimilarities are strong enough [p 191] to doom to failure any schemes that the ingenuity of man may devise.

One should bear in mind that these separate groups existed at all material times. The Respondent did. not create them. There is no justification for forcing people to live together who have no desire to live together, when it is possible to avoid it. There is no justification for forcing different communities to be dissolved into one integrated political unit, when they are opposed thereto, and when one knows that retrogression, chaos and suffering will result therefrom.

41. In the economic sphere, the first important consideration is the effect that would come from application of the norm or standards in the political sphere. The White group would either depart or be drawn into endless strife, possibly hostilities. Either event would either collapse or cripple the economy.

But application of the norm or standards in the economic sphere itself would directly bring about similar results. It would mean doing away with the various reciprocal protections, and with the special advantages, to which I have referred above. The effects, especially for the indigenous groups, seem obvious.

I quote Professor Krogh:

".. . under the circumstances I have sketched to you, and bearing in mind these diverse social and economic conditions in South West Africa, I have little doubt in saying that it would lead to the rapid deterioration of the material and economic welfare of the majority of the population, and by this I particularly refer to the non-White population groups. I can also see that they will not tolerate this and that this might very well lead to social strife, that would in fact arrest the economic development of South West Africa, which I think is an exceptional example in Africa .. ." (C.R. 65/65, pp. 44-45.)

He was strongly supported by others. Professor Logan's diagnosis of the effects of removal of the controls included "the subjugation or almost obliteration of some of the existing tribal groups", also "violent antagonism and frequently . .. warfare". He expected that "the economy . .. would, to a large extent fall apart" and that "a rather chaotic situation would develop" (C.R. 65/58, pp. 46-47). And Mr. Pepler predicted: ". . . it will be a very tragic day for the Native peoples" (C.R. 65/69, p. 62).

42. In the educational sphere, Dr. van Zyl and Professor Eiselen, who are undoubtedly experts in this field, described to the Court the advantages of the system of differentiation. They demonstrated that where a school for a particular community is governed by the community, the interest of the community in the school and in education is stimulated. They described the advantages of mother-tongue as a medium of in-[p 192] struction. It seems clear beyond any doubt that today it is generally accepted that this method of teaching is the best. Dr. van Zyl emphasized that the vernacular was of the utmost importance in bridging the gap between the home and the school and that it led to parents displaying a greater interest in the education of their children. In his opinion the use of the mother-tongue was the best way to ensure that pupils understood what they were being taught. Furthermore it promoted original thinking. Experiments had shown that pupils taught through the medium of their own language performed better at school, in all subjects, than pupils who were taught through a foreign medium.

If a system of joint schooling were introduced, mother-tongue instruction would become impossible, and all the advantages attached thereto, and to the system as a whole, would be lost. In any event it is common cause that had such a system been attempted it would have failed. The undisputed evidence is that by having the present system the Respondent is acting in accordance with the wishes of the vast majority of the population of the Territory.

Dr. van Zyl's conclusion was:

"The differences among the population groups in background, language, tradition and culture are so big that the people do not mix socially, with the result that integrated schools are almost inconceivable. From what I know of the people, there cannot be peaceful integration in the field of education and any attempt to enforce integration will cause the collapse of the educational services."

43. On the admitted and uncontroverted facts the above conclusions are so indisputable that it is small wonder that Applicants' Agent, towards the end of the proceedings, refrained from an attempt at contesting them. Instead he attempted to evade them by suggesting that they were not directed at the contents, properly understood, of the norm or standards on which he was relying. He became inconsistent on the question whether the norm or standards did involve one integrated political system with universal adult suffrage, but in the end he conceded that such was the "target for achievement". In the economic sphere he seemed to suggest that protective and preferential measures in favour of the non-White groups were permissible, but that such measures in favour of the White group were per se impermissible as constituting "racial discrimination", a concept which he did not attempt to define. Nor did he attempt to explain how such a distinction could be said to be contained in the norm or standards as formally defined and incorporated in Applicants' amended submissions, or to relate to any of the alleged sources of the norm or standards. In regard to education he avoided the question of integrated schools, contenting him-[p 193] self with a somewhat obscure subtlety about compulsory education.

All I need say about these manoeuvres is that they are not attractive, either as to their merit or their timing, and that they do not advance the Applicants' cause: they have rather the opposite effect. The case is concerned with a nom or standards as set out in the definition formally incorporated in the amended submissions. The case cannot now be considered as if it were concerned with something else. The attempt to do so appears to be an acknowledgement that the norm or standards, as contemplated in the amended submissions have been shown to be non-existent.

44.These considerations lead to the inevitable conclusion that there was not only no need for the creation of the alleged norm or standards, but that, had they been applied in South West Africa, the purpose of the Mandate would have been defeated.

Conclusion

45.In all these circumstances there can be no doubt that the alleged norm or standards do not exist and in any event do not apply to Article 2(2) of the Mandate Declaration for South West Africa.

Article 2 (1) of the Mandate
(Applicants’ Submission No. 5)

1. Applicants' Final Submission No. 5, as amended on 19 May 1965, reads as follows:

"5. Respondent, by word and by action, has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory; that such treatment is in violation of Respondent's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forthwith to cease such action and refrain from similar action in the future; and that Respondent has the duty to accord full faith and respect to the international status of the Territory."

It will be observed that the submission, on its own, is completely vague, inasmuch as the "word" and "action" relied upon are not identified at all. The only possible clue to identification is to be found in the preamble to all the submissions, which contains the words "upon the basis of allegations of fact, and the statements of law set forth in the written pleadings and oral proceedings herein". These words are also very wide and vague. They raise the problem of selecting from the voluminous pleadings and records of the oral proceedings that which was intended to be relied upon as constituting the "word" and the "action" spoken of in the submissions. [p 194]

2. In the original version of this submission, as set out in the Memorials, the words "by word and by action" were followed immediately by the words "in the respects set forth in Chapter VIII of this Memorial". Those "respects" were easily identifiable. They consisted of four enumerated official actions plus an alleged motive or intent on Respondent's part to incorporate the Territory of South West Africa unilaterally into the Union (now Republic) of South Africa. The contention was that the four actions, read in the light of the alleged intent, constituted the alleged violation of the obligations in question (Memorials, p. 195).

In view of the fact that the final submission no longer contains a specific reference to these "respects set forth in Chapter VIII of [the] Memorial[s]", the question arises whether they were intended to form part of the final submission. For reasons which I shall indicate later, I am satisfied that, on a true analysis of events during the oral proceedings, this question is to be answered in the negative and that Applicants have indeed, for understandable reasons, abandoned reliance upon the said actions and the said alleged intent. However, I do not wish to confine myself to that conclusion for disposing of the said actions and alleged intent as suggested grounds for acceding to the submission. As a matter of merit they clearly do not, in my opinion, support the submission, for reasons which I proceed to state briefly.

3. The four actions relied upon in the Memorials were:

(a) "General conferral" of South African citizenship upon inhabitants of South West Africa.

(b) Inclusion of representatives from South West Africa in the South African parliament.


(c) Administrative separation of the Eastern Caprivi Zipfel from the rest of South West Africa.

(d) The vesting of South West Africa Native Reserve Land in the South African Native Trust, and the transfer of administration of Native affairs to the South African Minister of Bantu Administration and Development.


In my view it is unquestionable that these administrative and legislative provisions prima facie did not go beyond an exercise of the "full power of administration and legislation" vested in Respondent, including the right to administer the Territory "as an integral portion of the Union of South Africa". And this is probably the reason why the original submission relied, as indicated above, on Respondent's alleged motive or intent as rendering illegal actions which might otherwise be unobjectionable FN1.

--------------------------------------------------------------------------------------------------------------------FN1 Note the formulation of the conclusion at page 195 of the Memorials: "By the aforegoing actions, read in the light of the Union's avowed intent, the Union has violated, and is violating ..." (Italics added.) (Footnote continued overleaf.)

Note also the sentence at page 186: "Motive is an important indicator since it sheds light upon the significance of individual actions, which might otherwise seem ambiguous."
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[p 195]4. A question of primary importance is therefore whether the alleged motive or intent was established as a fact. It can hardly be doubted that the answer is in the negative.

In the first instance, this point is really disposed of by Applicants' admissions of fact to which I referred when dealing with Submissions Nos. 3 and 4. These admissions related also to disputed facts concerned with Submission No. 5. Indeed, that the admission was intended to embrace also such facts, appears clearly from a statement by Applicants' Agent in which he referred to—

"... the facts with respect both to militarization and annexation, as disputed by the Respondent, and as subsequently accepted by the Applicants for purposes of these proceedings".

Respondent had, in its pleadings, drawn very sharp issue with the allegation of an intent or purpose or motive to incorporate the Territory. It directly denied the existence of such an intent, etc., and, indeed, expressed an intention of continuing to administer the Territory as if the sacred trust provisions of the Mandate were still in force. Detailed expositions and analyses of fact were offered in support of the denial.

In my view there can be no doubt that the issue thus drawn was one of fact. In the oft-quoted words of Bowen, L.J.: "The state of a man's mind is as much a fact as the state of his digestion." (Edgington v. Fitzmaurice (1885), 29 Ch.D. 459 at p. 483.) It seems clear therefore that Applicants' admissions would on ordinary principles have embraced also this dispute.

However, it is not necessary to speculate, since Applicants themselves rendered it abundantly clear that they regarded Respondent's state of mind as a fact, and that they must therefore have intended Respondent's version of this fact to fall within the compass of their admissions. This may be illustrated by two quotations. On 27 April, Applicants' Agent referred to:

"Respondent's apparent misconception that any of the Applicants' reasons, or arguments, reflect their assumption that state of mind, motive or purpose is something other than a fact."

In reply to this "misconception" the learned Agent then continued:

"Many situations of course are known to the law in which motive, or intent, is not merely a relevant fact but, indeed, may be a decisive one . .. Further discussion of so elementary a matter as to whether motive, or state of mind, is a fact, and provable as such, would be a waste of the Court's time." [p 196]

On 18 May, i.e., the second last day of Applicants' argument, their Agent confirmed this attitude. He is recorded as saying—

"... the subjective analysis is, as the Respondent has properly pointed out, one which is susceptible of factual determination; as the Respondent has said repeatedly, it is possible for courts to ascertain states of mind; facts are determinable in terms of states of mind. In certain types of legal problems—delicts, crimes—the state of mind is indeed the crucially relevant fact that determines the character of the crime. Therefore there is no question but that a state of mind is determinable as a fact. However, as applied to the objective of the Mandate, the state of mind with which the Respondent approaches its task, while a fact, nevertheless does not appear to the Applicants to be a fact which is determinative of the purposes of the Mandate itself ..."

This last quotation confirms again that the very purpose of the admissions was to avoid the further evidential enquiry that might have been necessary had the dispute, inter alia, as to intent, persisted.

5. However, even if there may be any doubt as to the intended ambit of Applicants' admissions in the above respect, it is abundantly clear from the record that no question of any improper state of mind on Respondent's part could in any event have remained once the more tangible facts set out by Respondent were accepted as true. Respondent's expositions included a whole chapter of relevant statements and facts that had not been mentioned in the Memorials, some not in this context and some not at all (see Book VIII of the Counter-Memorial, section C, Chapter II, pp. 94-105). They included also evidence as to actual benefits received by the inhabitants from the measures complained of (ibid., Chapters IV-VII, pp. 114-156; Rejoinder, Vol. II, pp. 454-457). All of this material requires to be considered before any inference as to state of mind can be drawn. And upon such consideration there remains not even a suspicion that Respondent might be embued with the intent or motive to incorporate South West Africa unilaterally into the Republic and that consequently its repeated denials of such an intent or motive are to be disbelieved. On the contrary, to mention only one consideration, in the light of the admitted fact that Respondent is pursuing a policy aimed at separate self-determination for the various population groups of South West Africa, it is difficult to see what practical purpose could, from Respondent's point of view, be served by an interim attempt at interim incorporation of the Territory into the Republic.

6. The firm conclusion from the admissions and the eventually undisputed facts is therefore that Respondent was not motivated by, and indeed did not have, any intention or motive to annex or incorporate the Territory, and that the measures complained of were not only intended for the benefit of the inhabitants of the Territory, but, in fact, operated to their benefit. [p 197]

This being so, Applicants' case as originally presented became insupportable. As I have said earlier, the acts complained of fell prima facie within the ambit of Respondent's powers of legislation and administration. If it is admitted or established that these acts were intended to promote the well-being of the inhabitants and did so in fact, it seems to me that Respondent cannot be held to have acted illegally in any respect.

7. A contention to the contrary was advanced by Applicants for the first time in their Reply (p. 357), on an alternative basis. The submission was that the acts referred to in the Memorials constituted “ipso facto, and without regard to Respondent's motive or purpose, a violation of Respondent's obligation to respect the separate international status of the Territory". Before dealing with issues raised by this contention, I would point out that even if it were correct, the effect of Applicants' above-mentioned admissions would at least be to reduce their complaints to insignificant technicalities of which it may rightly be said that de minimis non curat lex. As an illustration of what I have in mind, I may refer to Applicants' complaint regarding the general conferment of South African citizenship on the inhabitants of the Territory. If such conferment were shown to have been a step in a deliberate scheme of piecemeal incorporation involving also an obstacle to the political advancement of the inhabitants of the Territory, it would have been a serious matter and would certainly have been regarded as such by this Court. However, once it is accepted, as it now is, that no such scheme exists and that the measure was introduced for the advantage of the inhabitants, who have, as a fact, received only benefit and no detriment whatsoever therefrom (and particularly no detriment to their political advancement or detriment to the international status of the Territory) I cannot see what the practical significance would be of a finding that technically it was wrong of Respondent to introduce such a measure. This is, however, in passing—my own view is that the suggestion of a per se violation of the Territory's international status is not only immaterial from a practical point of view, but also untenable in law, as I shall show more particularly in respect of each of the actions in question.

8. The first of the four actions was termed in the Memorials "the general conferral of Union citizenship upon the inhabitants of the Territory". The relevant measure in this regard was Act 44 of 1949which had the effect of extending South African citizenship to all persons born in South West Africa after a certain date. There does not appear to be any prohibition on such conferment in the Mandate, as indeed the express authorization to administer the Territory "as an integral portion of the Union of South Africa" and to "apply the laws of the Union of South Africa to the territory, subject to such local modifications as circumstances may require" would, in my view, suggest that it would be permissible if properly done for the benefit of the inhabitants and not for an ulterior purpose.[p 198]


9. Applicants, indeed, did not base their case in this regard on an interpretation of the provisions of the Mandate. On the contrary, they relied solely on the terms of a resolution of the Council of the League of Nations dated 23 April 1923. It is clear that any resolution of the League Council relating to the legal effect of the mandates is entitled to great weight. On the other hand it must not be forgotten that the Council did not possess legislative competence. All obligations sought to be imposed on the Mandatory must in the final analysis rest upon the provisions of the Mandate.

10. Turning now to the terms of the Council resolution, I would point out that it does not appear to oppose the introduction of joint nationality as such—indeed it specifically authorized voluntary nationalization of individual inhabitants of mandated territories by the mandatory power. The Council's main concern appears to have been rather that inhabitants of mandated territories should not be completely assimilated with the population of the mandatory power. "Assimilation" was the crucial matter dealt with in the report of Marquis Theodoli which formed the basis of discussions in the Permanent Mandates Commission (Reply, p. 359). The same concept, although not by that name, was the burden of the Commission's proposal No. III and the reasoning in support of it (Counter-Memorial, Book VIII, p. 115) and also of the opening paragraph of the Council's resolution, which reads:

"The status of the Native inhabitants of a Mandated territory is distinct from that of the nationals of the mandatory Power and cannot be identified therewith by any process having general application." (Counter-Memorial, Book VIII, p. 116.)

If this is the correct interpretation of the resolution, it would in my view not be transgressed by general nationalization by the mandatory of the inhabitants of the mandated territory unless such inhabitants thereby lost their separate status. In my view, Act 44 of 1949 did not result in any such loss. It did not purport to abolish or reduce the rights of the Native inhabitants of the Territory; their status as inhabitants of a mandated territory remained and is not shared by the inhabitants of South Africa. Repeal of Act 44 of 1949 would not add anything to the rights of inhabitants of the Territory.

11. If I am wrong in my above-stated view, and if the Council resolution should be read as intending to impose an absolute prohibition on the general nationalization of the inhabitants of mandated territories, irrespective of whether such inhabitants thereby lost their separate status or not, I regret to say that I do not regard it as a correct statement of the legal position. In my view no such provision was expressed, or can be implied in the Mandate. On either view of the meaning of the Council resolution I accordingly find that Act 44 of 1949 does not per se con-stitute a violation of the separate international status of South West Africa. [p 199]

12. The second action raised in the Memorials, was the inclusion in terms of Act 23 of 1949 of representatives from South West Africa in the South African Parliament. In the Memorials the objection taken to this measure was stated to be that it—

". .. is not only part of a plan to incorporate the Territory politically, but also excludes 'natives' from the processes of self-government". (Memorials, p. 193.)

The "plan to incorporate the Territory politically" has fallen by the wayside and no more need be said about it. As regards the so-called exclusion of the Natives from the processes of self-government, the Applicants appear to have identified themselves with criticism in a report by the Committee on South West Africa to the effect that "the existing arrangements ... have excluded either the consultation or the representation of the largest section of the population .. .".

It will become apparent that charges or comment to this effect extend beyond the per se effect of the legislation, and necessitate enquiry into the whole political framework of which the legislation forms part. Expositions on this subject were given by Respondent in its pleading relative to Applicants' Submissions Nos. 3 and 4, and the facts thus presented were eventually accepted as true by the Applicants. These facts were further supplemented in uncontroverted testimony of expert witnesses. From these admitted facts it appeared clearly that the above-quoted comments of the Applicants and of the Committee on South West Africa were not justified. The mere absence of representation of non-White groups in the political institutions designed solely for the White group, does not mean that the non-White groups are excluded either from consultation or from processes of self-government. The fact is that Respondent's system, with a view to the best interests of all the population groups concerned, makes distinct and separate provision for the consultation, self-government and political development of each group, in a manner best suited to the needs and circumstances of each group. Once this is accepted, and acceptance, in my view, follows inevitably from the Applicants' admission, the averments and comment under discussion will be seen to be unfounded.

It has also been suggested that the arrangements operate to the detriment of the non-Whites, inasmuch as the interests of the White part of the population are likely to be better served, e.g., if it came to a partition of the Territory. This suggestion extends even further beyond a case resting on the per se aspects of the particular legislation. Indeed, a moment's reflection will show that it is completely out of place in the present context. A complaint that the political institutions of the White section of the population are more effective than those of other sections [p 200] would not appear to have any relevance to alleged violations of the separate international status of the Territory, with which I am dealing at present. It could have a bearing, if at all, only on that part of the case dealing with the alleged failure on the part of Respondent to promote well-being and progress in the political sphere, i.e., Applicants' Submissions Nos. 3 and 4. As I have shown when dealing with these submissions, Applicants no longer attempt to establish a case on the basis of unfairness towards, or oppression of, the non-European population of the Territory, and could in any event in my view not have succeeded with such case. Had the suggestion under discussion been advanced in the pleadings as an averment in support of any of their submissions, and persisted in during the oral proceedings, there would doubtlessly have been much closer investigation into the relative effectiveness of the arrangements for the White group and of those for the non-White groups. In such an investigation due regard would have had to be paid to the fact that the whole system is a developing, evolutionary one, and that, as Mr. Cillie stressed in his evidence—

". . . as political organs and economic and social institutions develop among the various non-White peoples . .. Less and less it is going to be in Southern Africa a matter of unilateral decisions and arrangements. It stands to reason that, as children grow up and develop a will of their own, their wishes have to be taken into account in the affairs of the family and that is what we are driving at."

In the circumstances I need to say nothing further about the suggestion here.

13. All that remains then is the question whether the representation of inhabitants cf South West Africa in the South African Parliament is indeed per se an infringement of the Mandate, and, in particular, of the separate international status of the Territory. As I have said before, Article 22 of the Covenant and the mandate instrument authorized the administration of the Territory as an integral part of South Africa. There is no express provision precluding the Respondent from allowing representatives from South West Africa in its Parliament, and there is no justification for reading an implied term to this effect into either of these instruments. Such a term cannot be said to be necessary in the sense that one can confidently Say that had it been raised at the time the parties would have conceded that it fell within the ambit of their agreement. On the contrary, the addition of such a term would constitute a radical alteration of the provisions of the Mandate and the Covenant.

Moreover, the conduct of the parties at the time of the drafting of the Covenant and at all material times thereafter, confirm that there could not have existed any common intention of precluding the Respondent from allowing representatives of South West Africa in its Parliament.[p 201]

When introducing the Peace Treaty in the House of Commons on 3 July 1919, Lloyd George emphasized that "South West Africa will become part of the Federation of South Africa".

14. In 1923 General Smuts informed the Permanent Mandates Commission of the probability that the White inhabitants of the Territory would be given representation in the Respondent's Parliament. If any State thought that such representation in Respondent's Parliament impeded "opportunity of self-determination" or was "inconsistent with the international status of the territory" a voice of protest should and would have been heard.

15. In later years the representation of South West Africa in the South African Parliament was raised before and discussed in the United Nations on a number of occasions. At all times the United Nations contained a larger number of Members who had also been foundation Members of the League. It is significant, therefore, that none of them expressed the view that the Covenant or the Mandate precluded the Respondent from allowing representatives elected by voters in South West Africa in its Parliament.


Thus, on 11 April 1947, the House of Assembly of Respondent's Parliament adopted a resolution reading, inter alia, as follows:

"Therefore this House is of opinion that the territory should be represented in the parliament of the Union as an integral portion thereof, and requests the Government to introduce legislation, after consultation with the inhabitants of the territory providing for its representation in the Union Parliament. .."
This resolution was brought to the attention of the Secretary-General of the United Nations by letter in 1947, and in this communication it was also stated that Respondent would maintain the status quo and would continue to administer the Territory in the spirit of the Mandate. Nobody expressed a view that this undertaking was inconsistent with the resolution. When the Respondent's representative expressed the view in the General Assembly of the United Nations in 1947 that such representation in Respondent's Parliament was not the same as incorporation and would not constitute a violation of any provision of the Mandate, not a single State challenged the soundness of this statement. In 1948 the Respondent's representative in the Fourth Committee explained the provision of the proposed legislation whereby the Territory would be represented in the Respondent's Parliament, and again emphasized that the proposed arrangement would not constitute incorporation, and again nobody suggested that such representation would be inconsistent with the international status of the Territory or would in any other way breach the provisions of the Mandate. Neither of the Applicants have offered any explanation for their failure to challenge the Respondent's contentions on these occasions.

When later on 26 November 1948 the Respondent's representative repeated its previous assurances that the measures designed to establish [p 202] parliamentary representation in the Territory did not mean the Territory's incorporation or absorption into South Africa, the General Assembly actually recorded in a resolution that it took note—

". . . of the assurance given by the representative of the Union of South Africa that the proposed new arrangement for closer association of South West Africa with the Union does not mean incorporation and will not mean absorption of the Territory by the Administering Authority".

Again not a single State challenged the correctness of Respondent's statement.

16. In 1949, Act 23 of 1949 was transmitted to the Secretary-General of the United Nations. It was only at the end of the debate of the Fourth Session of the Fourth Committee that one of the delegates proposed an amendment to certain draft resolutions to the effect that the said Act constituted a violation of the United Nations Charter. It will be observed that even at this stage there was no suggestion that it constituted a violation of the Mandate or the Covenant. In any event, this resolution was defeated. A similar resolution was defeated in 1950. The above attitude of States confirms my view that there is no substance in this charge.

17. The third complaint upon which the Applicants based their aforesaid submission is that the Eastern Caprivi Zipfel—hereafter referred to as the Caprivi—is administered separately from the rest of the Territory.


A proper appreciation of this issue necessitates some knowledge of the geographical features of this area. It is east of longitude 21° and forms part of a strip of land acquired by the German Government in 1890 as a zone of free access to the Zambesi River. It is long and narrow and forms the north-eastern part of the Territory. In the rainy season a large area becomes a huge swamp with the result that is is impossible to approach it from the remainder of the Territory. It is mainly inhabited by two tribes which have never had any connections with the other Native groups in South West Africa.

An attempt between the years 1929 and 1939 to administer the Caprivi as a part of South West Africa failed—it appeared clearly that it was in the interests of the area to have it administered directly by Respondent. This conclusion was reported to the Permanent Mandates Commission who stated the following:

"The Commission learned from the annual report that owing to the difficulty of satisfactorily controlling the eastern part of the Caprivi Zipfel, it is contemplating making over the control of this area to the Union Department of Native Affairs. It noted the statements of the accredited representative to the effect that the officer administering the area in question would work in close [p 203] co-operation with the Mandatory Government which would be acting for the Administration of South West Africa and that information regarding that part of the territory would be included in the annual reports as hitherto.

The Commission holds the view that the administrative arrangement contemplated calls for no observations on its part provided all the provisions of the Mandate are properly applied in the eastern portion of the Caprivi Zipfel." (Italics added.)

18. Applicants sought to support this contention relative to the Caprivi by arguing that—

". .. [e]ven if problems of accessibility make administrative separation expedient, it is incumbent upon Respondent to take other steps to preserve the territorial integrity of the Mandated Territory as a whole, and to develop the 'sense of territorial consciousness among all the inhabitants' which is required by the United Nations. Such a responsibility is implicit in the undertaking of the Mandate itself." (Reply, p. 363.)

Such an obligation could exist, if at all, only as part of the Mandatory's general duty to promote the political well-being and progress of the inhabitants of the Territory. But, as such, it has no relevance, in my view, to the present discussion of alleged infringements of the international status of the Territory. In any event, it is clear to me that no such obligation was ever imposed by the Mandate, or even by the United Nations in respect of dependent territories generally, as is apparently contended by Applicants.

19. In view of the above circumstances I have no hesitation in holding that the administrative separation of the Caprivi was a perfectly legitimate exercise of Respondent's governmental powers.

20. The fourth complaint relates to the transfer of the Administration of Native Affairs from the Administrator to the Minister of Bantu Administration and Development, and to the vesting of South West African Native Reserve land in the South African Native Trust. In this regard also it must be kept in mind that it is no longer contended that these measures were actuated by any improper motive, or that they have had any undesirable effect on well-being or progress. That being so, there can, in my view, be no reason why Respondent should not determine which official or agency should exercise or administer particular functions or assets relating to the Territory. It could hardly be suggested that Respondent is under an obligation to entrust all functions regarding the administration of South West Africa only to those of its officials who are stationed in Windhoek to the exclusion of officials stationed in the Republic itself. Nevertheless that would appear to be the effect of this contention, which should in my view, be rejected.


21. To sum up, once it was admitted by the Applicants that the various actions referred to in Chapter VIII of the Memorials were not motivated [p 204] by any plan to annex or incorporate the Territory, the whole basis of Applicants' original case fell away. The alternative contention that these acts "constitute per se, and without regard to Respondent's purpose or motive, a violation of Respondent's obligation to respect the separate international legal status of the Territory" (Reply, p. 354) reduced Applicants' charge at best (for them) to a mere technicality and at worst to a completely untenable proposition.

22. It was probably the realization that their original charges were insupportable that induced Applicants ultimately to abandon them, as in my view they clearly did. In coming to this conclusion I fully appreciate that a failure by a party to refer in the oral proceedings to particular contentions or arguments raised in the written pleadings, does not necessarily amount to an abandonment of such contentions or arguments. However, in the present case there are a number of additional considerations which in my view compel the aforesaid conclusion. Most of these considerations have been dealt with before and it will not be necessary to do more than refer briefly to them again. Firstly, it is significant that in Submission No. 5 as originally drafted there appeared specific references to the actions complained of, which references were deliberately deleted in the amended submission. This in itself suggests that the original grounds of action are no longer relied upon, a suggestion which is strengthened by the consideration that the case as originally framed could no longer succeed after Applicants had admitted that an essential element thereof—the intent to incorporate—did not exist.

When attempting to ascertain positively what case was sought to be made in the amended submission, which, as I noted above, is now completely vague as to the conduct complained of, the obvious starting point seems to me the Applicants' final oral argument in which they purported to explain their case. Reference to such oral argument shows that Applicants at that stage did not only fail to advance any argument in support of their original charges, but emphasized that their sole and only case rested on an entirely different basis. They commenced their discussion by expressing an intention of disposing of Submission No. 5 "in the context of the requirement of administrative supervision".

They then elucidated their contention in support of their Submission No. 5 in, inter alia, the following passages:

".. . turning to the question of annexation, administrative supervision is here again seen to be of the essence. Respondent's refusal to submit to administrative supervision, indeed, is an underlying element of the Applicants' complaint in this regard (Italics added.)

In the absence of such accountability, Respondent's function of administration would cease to be international. [p 205]

That is the essence of our contention in this regard. (Italics added.)

The absence, the denial, or the rejection of international supervision, alters the international status of the Territory; it deprives it of that character. This is the basis of our submission in this regard." (Italics added.)

and, finally—

"With respect to the Submission 6 (sic), relating to annexation, the refusal and denial of submission to international administrative supervision impairs the international status of the Territory."

In other words, Applicants repeatedly emphasized that their sole contention was that refusal to submit to international supervision was in itself an act inconsistent with the international status of the Territory. This attitude is in line with the features I have mentioned above, all of which, cumulatively satisfy me that Applicants did not intend in their amended submission to pursue the charges originally raised in the Memorials, or the alternative thereto first raised in the Reply. They intended to limit their case to the one contention mentioned above, to the exclusion of all others. Consequently I now turn to a consideration of the merits of the sole contention ultimately relied upon.

23. In the first place, its effect now is that Submission No. 5 amounts merely to a paraphrase of Submissions Nos. 2, 7 and 8. Consequently there appears little purpose in retaining it as a separate submission. But in any event, it seems to me a complete non sequitur to argue that Respondent has treated the Territory in a manner inconsistent with the international status of the Territory and has impeded opportunities for self-determination by the inhabitants of the Territory merely because Respondent has refused to submit to international supervision. The one question relates to the merits of Respondent's actions and policies, the other purely to supervision thereof. It follows, therefore, that even if Respondent were obliged to submit to United Nations supervision (which in my view is not the case) mere failure to do so would not be an act contrary to the separate international status of the Territory.

Article 4 of the Mandate

(Applicants’ Submission No. 6)

1. Article 4 of the Mandate provided as follows:

"The military training of the natives, otherwise than for purposes of internal police and the local defence of the territory, shall be prohibited. Furthermore, no military or naval bases shall be established or fortifications erected in the territory." [p 206]

2.In its original form Applicants' Submission No. 6 read as follows:

"The Union, by virtue of the acts described in Chapter VII herein, has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to remove all such military bases from within the Territory; and that the Union has the duty to refrain from the establishment of military bases within the 'Territory." (Memorials, p. 198.)

3. The installations described in Chapter VII of the Memorials, which were alleged to constitute military bases within the meaning of Article 4 of the: Mandate, were the following:

(a) an alleged military landing ground in the Swakopmund district of South West Africa;
(b) an alleged military camp or military air base at Ohopoho in the Kaokoveld area of South West Africa;
(c) the supply and maintenance facilities of the Regiment Windhoek.

The reason advanced by Applicants in their Memorials for contending that these institutions were military bases, was that "[a]rmed installations not related to police protection or internal security fall within the class of 'military bases' or 'fortifications' . . .". (Memorials. p. 181.)

4.The facts relative to the aforementioned facilities are set forth in the Respondent's pleadings and are, as will be shown later, not in dispute. For the purposes of this opinion I shall briefly restate the material facts concerning each of the said facilities.

(a) The Alleged Military Landing Ground in the Swakopmund District of South West Africa

The allegation in the Applicants' Memorials, based on "information and belief", was that the military landing ground in question was situated in the Swakopmund district within the Mandated Territory of South West Africa. This allegation was not correct. The said landing ground is not situated within the territorial boundaries of South West Africa, but falls in the area of the Port and Settlement of Walvis Bay which, although administered for practical purposes as if it were part of the Territory of South West Africa, is in fact a part of the Republic of South Africa FN1. Although Applicants accepted this "geographical explanation", they advanced the contention in their Reply that Walvis Bay must,
--------------------------------------------------------------------------------------------------------------------FN1 It appears that Applicants based their allegation on a statement contained in a report of the Committee on South West Africa. It would seem that the Committee, apparently unaware of the true factual and legal position, was misled by a reference in Government Notice No. 636 of 1958 (SA) to the farm Rooikop, on which the landing ground is situated, as falling within the magisterial district of Swakopmund—a correct statement at the time, but only in so far as the said administrative arrangement is concerned.
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"in a military sense, be considered to be in South West Africa, inasmuch as it is completely surrounded by territory subject to the [p 207] Mandate and necessarily depends thereon for essential services, transport, communications and supplies, including water".

I quote this statement at this stage in view of the factual allegations contained therein.

Even if these factual allegations were correct, there would be no legal justification for considering Walvis Bay, "in a military sense" to be "in South West Africa". The Applicants did not mention any legal principle, nor am I aware of any legal principle, which could under such circumstances constitute one territory part of another, whether "in a military sense" or in any other sense. It is, however, not necessary to pursue this enquiry any further inasmuch as the factual allegations upon which Applicants based their contention were not correct. A reference to any reliable map will immediately show that the area of Walvis Bay is not "completely surrounded by territory subject to the Mandate". It is approachable from the sea without entering or crossing any part of the Mandated Territory. With regard to the other factual allegations contained in Applicants' above-quoted statement Respondent denied that Walvis Bay "necessarily depends [on South West Africa] for essential services, transport, communications and supplies, including water", and explained that, although use is made of certain services provided from South West Africa, such as road and rail transport, telephone and postal communications, Walvis Bay is not "necessarily" dependent thereon. Nor does it obtain its water supply from the Territory.

I have already mentioned that Applicants, during the course of the oral proceedings, intimated a general acceptance by them of Respondent's statements of fact in the pleadings. This acceptance, as I will show later, applied also to the facts relative to their charges concerning militarization. In the result the whole factual basis upon which Applicants sought to found their contention that Walvis Bay must "in a military sense" be considered "to be in South West Africa", has fallen away.

(b) The Alleged Military Camp or Military Air Base at Ohopoho in the Kaokoveld Area of South West Africa

This facility is one of a few landing strips at various places in South West Africa which are mainly used for administrative purposes but also occasionally and intermittently for the landing of military aircraft. These strips are natural surface strips which have simply been cleared of vegetation and other obstructions. They are completely unmanned, provide no maintenance or service facilities, and can only be used for the landing of light aircraft.

(c) The Supply and Maintenance Facilities of the Regiment Windhoek

The Regiment Windhoek is a Citizen Force unit composed of civilians who undergo peacetime military training for certain limited periods. [p 208] Each trainee is enlisted for a period of four years and during that time he undergoes three periods of training. In his first year of enlistment the recruit attends a training course for a period of nine months at one or other military training institution in the Republic of South Africa. Over the last three years of his enlistment the trainee attends two training courses of three weeks each at a training camp at Windhoek in South West Africa. The said two periods of three weeks each is the only training which members of the Regiment Windhoek receive in South West Africa itself and, save when attending the training course aforementioned, the members of the Regiment carry on their ordinary civilian occupations and have no peacetime military obligations, except that they may be called up if needed for purposes of restoring or maintaining law and order. The complement of the Regiment varies from year to year inasmuch as in every year new recruits are enlisted and trained men discharged. In 1963 the complement was 20 officers and 221 other ranks. The Commanding Officer of the Regiment is not a professional soldier of the permanent force, but, like the trainees, a member of the Citizen Force and is predominantly occupied with his normal civil occupation.

At the training camp at Windhoek there are some houses occupied by members of the South West Africa Command FN1; for the rest the camp has ablution and cooking facilities only, sleeping accommodation for trainees being provided during every training course by the pitching of tents. The Regiment Windhoek is equipped with light reconnaissance vehicles, i.e., armoured cars FN2. It only remains to be said that the members of the Regiment Windhoek are all European inhabitants of South West Africa, there being no military training whatsoever of Natives in the Territory.
--------------------------------------------------------------------------------------------------------------------FN1 The South West Africa Command is a military administrative organ for, inter alia, the Regiment Windhoek, with headquarters at Windhoek. It consists of a small permanent force staff, the complement of which in 1964 was three officers and seven other ranks.
FN2 See in this regard the evidence of General Marshall: he found in the hangar at Windhoek: 12 small armoured cars ("ferrets"), which he described as reconnaissance vehicles; 6 Mark 4 armoured cars, 6 light tanks all Second World War material and half of them out of commission; 16 miscellaneous vehicles, jeeps, trailers, trucks, etc.; 1 six-pounder gun used for ceremonial purposes.
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5. I have already stated that the facts as set out above are not in dispute. That is so inasmuch as Applicants, during the course of the oral proceedings, admitted as true all the factual statements contained in Respondent's pleadings. And, as I noted when dealing with Applicants' complaints regarding piecemeal annexation (Submission No. 5), their admission was specifically confirmed also with reference to the part of the case concerning militarization. In this regard Applicants' Agent referred to ".. . the facts with respect... to militarization ... as disputed by the Respondent, and as subsequently accepted by the Applicants for purposes of these proceedings .. .". Not only were the facts, as afore-stated, relative to the landing strip at Ohopoho and the Regiment Windhoek, admitted by the Applicants, but they were confirmed in every [p 209] respect by General Marshall. General Marshall was not asked to testify as to any military facilities at Walvis Bay, which, as I have said, falls outside the mandated territory.

6. The question then arises whether, on the facts as aforestated, the three facilities referred to in the Memorials are military bases within the meaning of that expression in Article 4 of the Mandate.

I would Say that obviously and as a matter of common sense the answer is in the negative. However, in view of the contrary contentions at one stage advanced by Applicants, I may add that this answer is confirmed by dictionary meanings and expert opinion.

The following definitions of the term "military base" are found in the dictionaries:

(a) Webster's Complete Dictionary of the English Language (1880)

Base (military) "A tract of country protected by fortifications, or by natural advantages, from which the operations of an army proceed."

(b) Webster's New International Dictionary of the English Language(Second Edition)

Base (military and naval) "The locality on which a force relies for supplies (base of supplies) or from which it initiates operations (base of operations); as, a submarine base."

(c) The Shorter Oxford English Dictionary (Third Edition)

Base (military) "The line or place relied upon as a stronghold and magazine, and from which the operations of a campaign are conducted."

(d) Gaynor, The New Military and Naval Dictionary (1951)

Base "A locality from which operations are projected or supported; the term may be preceded by a descriptive word such as 'air' or 'submarine', to indicate its primary purpose."

(e) The Concise Oxford Dictionary of Current English (1958)

Base (mil.) "Town or other area in rear of an army where drafts, stores, hospitals, etc., are concentrated (also [base] of operations)."

(f) Funk and Wagnalls New Standard Dictionary for the English Language(1961)

Base (mil.) "A place or region constituting a basis of operations or a point from which supplies and reinforcements [sic] may be drawn; a base of supply."

It seems to me that there is a common feature in all these definitions, [p 210] namely that a base is something utilized by a force or an army for the purposes of operations or a campaign.

If I am correct in my reading of these definitions it follows, in my opinion, that a place cannot be said to be maintained as a military or naval base unless its purpose is utilization by a force or an army for operations or a campaign, actual or prospective.

7. If the aforestated test is applied to the admitted facts relative to the facilities in question, not one of them would fall within the dictionary definitions of "military base". I of course exclude the military landing ground at Walvis Bay. As I have already pointed out, it falls outside the mandated territory, and the relevant facts thereof were not investigated. There is no basis, legal or factual, for a contention that it must be considered to be in South West Africa, whether "in a military sense" or any other sense. In so far as the two remaining facilities are concerned neither the landing strip at Ohopoho nor the supply and maintenance facilities of the Regiment Windhoek qualify, in terms of the dictionary definitions, as military bases.

This was also the expert opinion of General Marshall, who, Applicants' Agent conceded, was "indeed a recognized military authority and widely read as such in our native country".

General Marshall testified that he had visited South West Africa on two occasions during 1965 and had given particular attention to the facilities in question. He described his findings with regard to these installations in detail and concluded that neither of them could, in his opinion, be regarded as a military base.

8. Another reason why I consider that the said facilities cannot be regarded as military bases, within the meaning of Article 4 of the Mandate, is that the said Article itself does not prohibit, but on the contrary by implication permits, the training of the European inhabitants of the Territory as well as the training of the Natives for certain limited purposes, i.e., for internal police and local defence. It must have been contemplated that there would be training of inhabitants of the Territory at least for internal police and local defence purposes and, which is a necessary corollary, that there would be facilities for such training. It is, therefore, inconceivable that the prohibition against military bases in Article 4 was intended to extend to ordinary training facilities such as those provided for members of the Regiment Windhoek or to facilities such as the landing strips at Ohopoho and elsewhere, which are used mainly for administrative purposes but occasionally also by military aircraft, inter alia, for the training of air force personnel.

9. As I have mentioned, Applicants in their pleadings advanced arguments contrary to the above conclusions.

10.
At one stage they suggested that the facilities in question were military bases inasmuch as they were, according to Applicants, not intended for "police protection or internal security" FN1.
--------------------------------------------------------------------------------------------------------------------FN1 Memorials, pp. 182-183.
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There is no substance in this contention, which appears to have been [p 211] based on a misinterpretation of the sentence in Article 4 which deals with the military training of Natives. Inasmuch as there is no training of Natives in South West Africa, the qualification which Applicants sought to apply in their Memorials relative to the establishment of military bases was misplaced. And, in any event, there is no evidence that the facilities in question were intended for, or are used for, any military purposes other than for internal police and the local defence of the Territory. At another stage the Applicants submitted that only Natives could lawfully be trained for police and local defence purposes, and they even went so far as to suggest that Article 4 would have been violated unless Respondent could confirm "that there [is] not in the entire territory a single soldier or sailor on the active list" FN1. I do not intend to deal with these arguments, which in my opinion are, to say the least, fanciful and baseless. Suffice it to say that neither the Mandate for South West Africa, nor any other mandate, prohibited the military training of non-Natives, and there is undisputed evidence before the Court that a large number of non-Natives were in fact trained and used in the forces stationed in the other African mandated territories during the lifetime of the League.
--------------------------------------------------------------------------------------------------------------------FN1 Reply, p. 340.
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11. Before proceeding to deal with a further contention advanced by Applicants in the oral proceedings, I wish to draw attention to certain factual allegations which were introduced by Applicants for the first time in their Reply.

Under a heading "Military Activity in General" Applicants for the first time charged in their Reply that Respondent had—

"... created a situation where there is the equivalent of a series of military bases or potential military bases in the Territory or at worst, where the Territory itself and its 'White' inhabitants have become armed and co-ordinated to the extent that the Territory has been transformed into a 'military base' within the meaning and intent of the Covenant and the Mandate".

In my view it is impermissible for an Applicant to introduce an entirely new complaint of this kind in its Reply. The procedure of this Court requires that the Applicants' cause of action should be set out in the Application and Memorial. This requirement is not a mere procedural technicality—if new causes of action are allowed to be introduced at later stages of the proceedings it becomes impossible for the parties to deal fully therewith prior to the conclusion of the written proceedings. Each party should have the opportunities contemplated in the Rules of Court for dealing with the contentions of the other party. The Court itself is, to put it at its lowest, inconvenienced if, as happened in the present case, there is at the commencement of the oral proceedings no certainty as to the areas of agreement or dispute between the parties. In my view such a situation militates against the proper administration [p 212] of justice, and should not be countenanced. In the present case it would seem, in view of what is stated hereinafter, that Applicants did not in the oral proceedings persist in this omnibus charge. They certainly made no mention of it or of the factual allegations embodied therein. There is, however, no certainty in this regard in view of the vague and unparticularized manner in which Applicants finally reformulated their Submission No. 6—also a matter to which reference is made hereinafter. Whatever the position may be in this regard, it is clear on the evidence that there could be no merit in the charge. At the conclusion of his evidence General Marshall was asked whether there was anything which he saw in South West Africa which, in his opinion, could be regarded as a military base, or whether the territory as such could be regarded as a military base.

His reply was: "My answer is no. May I add that the Territory is less militarized and more under-armed than any territory of its size I have ever seen in the world."

The witness's conclusions were not attacked by Applicants, either in cross-examination or in comment on the evidence, and, of course, no evidence whatsoever had been led by the Applicants. In my view, there can be no reason for not accepting General Marshall's evidence and opinions. Indeed, Applicants' Agent himself referred to the "first-hand authentic and undoubtedly correct factual statement" concerning what General Marshall saw on his inspection.

11. The only contention advanced by Applicants in the oral proceedings relative to their charges regarding militarization was to the effect that modern military science had progressed to the stage where the Territory could be effectively militarized within a short period, and that, in the absence of administrative supervision, Respondent must consequently be deemed to be guilty of a violation of Article 4 of the Mandate. It was apparently in pursuance of this new contention that Applicants' Submission No. 6 was amended to read as follows:

"Respondent has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forthwith to remove all such military bases from within the Territory and that Respondent has the duty to refrain from the establishment of military bases within the Territory."

It will be noted that (similarly to the position in respect of Applicants' reformulated Submission No. 5) the reformulated Submission No. 6 omits specific identification of any acts or installations. It is true that the reformulated submissions were all made "upon the basis of alle-gations of fact and statements of law set forth in the written pleadings and oral proceedings herein". It is, however, not clear which of the charges the Applicants are persisting in, particularly in view of the fact that their charges in the pleadings included a charge, dealt with in paragraph 10, supra, to the effect that the whole of South West Africa had become [p 213] transformed into a military base. And if, as Applicants explained in the oral proceedings, the basis of their complaint is lack of administrative supervision, what criterion is there for determining whether any of the particular installations or facilities referred to in the pleadings, or any other installations or facilities in the Territory, are or are not military bases?

In any event, if we have regard to the informal statement by Applicants' Agent in the oral proceedings as to what the Applicants' case really is, the complaint appears to be that Respondent would, in the absence of international supervision, be able to militarize the Territory without anybody being aware thereof. This line of argument clearly provides no support for a contention that "Respondent has established military bases within the Territory", nor does it in fact suggest any other violation of Article 4 of the Mandate.

12. For the reasons aforestated, I find that there is no substance in Applicants' charges relative to Article 4 of the Mandate.

The Alleged Duty to Transmit Petitions
(Applicants' Submission No. 8)

1. I have already expressed the view that, apart from other grounds, this submission should be dismissed also on the ground that Article 6 of the Mandate Declaration, which provided for the duty to report and account, no longer applies. However, even if Article 6 were still in force, the result would, in so far as Submission No. 8 is concerned, in my view, be the same. Neither Article 6, nor any other provision of the Mandate, required the Mandatory to transmit petitions to the Council or any other organ of the League. The procedure of submitting petitions through the mandatories arose as a result of rules of procedure drafted by the Council in 1923. (League of Nations, Official Journal, 1923 (No. 3), p. 300.) It is clear that these rules could not impose on the mandatories an obligation not provided for in the Mandate Declarations or in Article 22 of the Covenant. And, indeed, the said rules did not purport to do so. These rules were designed for the protection of the mandatories against frivolous or one-sided petitions by ensuring that the mandatories would have an opportunity of commenting on them before they were considered by the League. For this reason the rules provided that petitions emanating from the inhabitants of a mandated territory were not to be sent direct to the Council, but were to be transmitted through the mandatory concerned; thus enabling the mandatory to attach such comments as it might think desirable. And in respect of petitions emanating from any source other than the inhabitants themselves, the mandatory was to be asked for its comment before such petitions were considered by the Permanent Mandates Commission.

These rules of procedure were therefore not intended to impose obligations on the mandatories but rather to provide them with the opportunity of making timely comments on the allegations made in petitions to the League. [p 214]

However, even if the Council's rules of procedure could in some way or another have given rise to an obligation on the part of the mandatories, such an obligation could, in any event, not be described as an obligation embodied in the "provisions of the Mandate". It follows that the Court would, in any event, not have jurisdiction in terms of Article 7 (2) of the Mandate to entertain disputes regarding the alleged violation of such an obligation.

2. In my view these are additional reasons why Applicants' Submission No. 8 should be dismissed.

Article 7, Paragraph 1, of the Mandate

(Applicants' Submission No. 9)

1. Little need be said about Submission No. 9. As in the case of Applicants' Submissions Nos. 5 and 6, which have been dealt with above, Submission No. 9 initially particularized Respondent's alleged conduct which was contended to be in conflict with Article 7 (1) of the Mandate. In the Memorials, Submission No. 9 read a follows:

".. . the Union, by virtue of the acts described in Chapters V, VI, VII and VIII of this Memorial coupled with its intent as recounted herein, has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition precedent to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate".

2. Also in respect of this submission, Applicants were forced to effect an amendment as a result of their admission of all the facts asset forth in Respondent's pleadings. These admitted facts disproved the allegations upon which the submission was based, and the Applicants accordingly deleted all the references made in the submission as originally formulated to the acts described in Chapters V, VI, VII and VIII of the Memorials as well as references to Respondent's alleged intent. In the result also this submission has become so vague as to be meaningless. It follows that, in my view, no declaration can be made as requested in this submission.

3. There are, however, also other grounds for reaching the same conclusion. On the dissolution of the League of Nations, Article 7 (l), in my view, lapsed in the same way, and for substantially the same reasons, as Article 6, with which I dealt above. It follows that, even if the Mandate were still in existence as an institution, Article 7 (1) would no longer be in force. In my view no agreement has been concluded. Neither the United Nations nor any one of its organs has stepped into the shoes of the League Council as the authority whose consent is required far modification of the terms of the Mandate. [p 215]

4. In conclusion, I may add that Applicants in their final address to this Court relied solely on Respondent's refusal to submit to international supervision as a ground for contending that a declaration should be made in terms of Submission No. 9. My view in this respect is similar to that which I have expressed with regard to other submissions in support of which the same contention was advanced, namely that, even if Applicants would be entitled to a declaration in terms of their Submission No. 2, that would not, in my view, justify a declaration that Respondent has violated other provisions of the Mandate, for example, that Respondent has attempted to modify the terms of the Mandate in contravention of Article 7 (1) thereof.

(Signed) J. T. van Wyk.

[p 216] DISSENTING OPINION OF VICE-PRESIDENT WELLINGTON KOO

I regret to be unable to concur in the Judgment of the Court which "finds that the Applicants cannot be considered to have established any substantive right or legal interest appertaining to them in the subject-matter of the present claims". Nor am I able to agree with the reasons upon which it is based. Pursuant to Article 57 of the Statute I propose to state the grounds for my dissent.

I

In the first phase of the instant cases, it will be recalled, the Government of South Africa, in response to the Applications and Memorials of Ethiopia and Liberia, filed four preliminary objections, submitting "that the Governments of Ethiopia and Liberia have no locus standi in these contentious proceedings and that the honourable Court has no jurisdiction to hear, or adjudicate upon, the questions of law and fact raised in the Applications and Memorials . ..". The third objection as finally presented in the oral proceedings of 1962 states that:

"the conflict or disagreement alleged by the Governments of Ethiopia and Liberia to exist between them and the Government of the Republic of South Africa, is by reason of its nature and content not a 'dispute' as envisaged in Article 7 of the Mandate for South West Africa, more particularly in that no material interests of the Governments of Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby".

The Court by its Judgment of 21 July 1962 rejected all the four objections and stated separate reasons for each rejection. With reference to the third objection, the Court stated, inter alia:

"For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest 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." (I.C.J. Reports 1962, p. 343.)

In its operative clause the Judgment states that "The Court, by eight votes to seven, finds that it has jurisdiction to adjudicate upon the merits of the dispute".

The principal question considered in the present Judgment is, again, whether the Applicants in the instant cases have a legal right or interest [p 217]in the subject-matter of their claims. The Judgment finds that the Applicants have no such right or interest in the performance provisions of the Mandate for South West Africa. It seems to me that the main arguments in support of this finding are largely derived from the concepts of guardianship or tutelle in municipal law with its restricted notions of contract, parties and interests.

But the mandates system, while it bears some resemblance to, and was probably inspired by, the concept of guardianship or tutelle in private law, the similarity is very limited. Unlike the municipal law concept with its simple characteristics and limited scope, the mandates system has a complex character all of its own, with a set of general and particular obligations for the mandatory to observe or carry out, and with a scheme of multiple control and supervision by the League of Nations with its Council, Assembly, member States and the Permanent Mandates Commission and with judicial protection in the last resort by the Permanent Court. It is a novel international institution. Nothing of the kind had existed before. It is sui generis.

At this juncture I think a few words about the historical background of the creation of the mandates system will be useful to enable a full understanding and appreciation of its nature, spirit and purport. As we all know, it was President Wilson, author of the- Fourteen Points, who first made the radical proposal in the Council of Ten of the Versailles Peace Conference to renounce in fact the time-honoured principle of annexation by conquest and to set up in its stead a new international mandates system to be operated by the League 6f Nations and based upon the concept of a sacred trust entirely in the interest of the inhabitants of the territories to be thus placed under mandate. He had at first even proposed direct administration by the League of Nations of the territories taken from the Central Powers. He advocated the mandates system so strongly as to make it practically a sine qua non in the peace settlement. It was, however, opposed at first with equal firmness by some of his principal allies in the war, notably some of the British Dominions. The confrontation of the two opposing theses became so serious as to constitute not only a deadlock but even to threaten for a time the break-up of the Peace Conference. It was largely through the conciliatory efforts of Lloyd George that an agreement was finally reached on this difficult question.

The resulting compromise was that the "securities for the performance of this trust should be embodied in this Covenant" of the League of Nations. While paragraphs 7 and 9 of Article 22 of this instrument provide respectively for the rendering to the Council of the League an annual report by the mandatory "in reference to the territory com-[p 218]mitted to its charge" and for the constitution of a permanent commission "to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the Mandates", not all securities were spelled out in the same instrument. On the contrary by paragraph 8 "the degree of authority, control or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be expressly defined in each case by the Council". Thus, for example, Article 6 of the Mandate for South West Africa provides for the making of annual reports by the Mandatory "to the satisfaction of the Council", and Article 7 of the same Mandate provides in the first paragraph that "the consent of the Council of the League of Nations is required for any modification of the terms of the present Mandate" and in the second paragraph (the adjudication clause) that—

"The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations."

The whole system was inspired by, and built upon, the cardinal purpose of protecting and promoting the welfare of the peoples of the territories placed under mandate. It constituted an international joint enterprise, the success of which was predicated upon the co-operation of alll the parts and parties to it under the League—the Council, the Permanent Mandates Commission, the Assembly, the member States and the mandatories. In order to ensure success various securities were provided both in Article 22 of the Covenant and in the respective mandate instruments. The examination and consideration of the mandatories' annual reports on the administration of their respective territories under mandate by the Council with the assistance and advice of the Permanent Commission and the discussion and debate in the annual session of the Assembly on the chapter on mandate administrations in the Council's own yearly report, in both cases with the participation of the representatives of the Mandatory Powers, constituted the normal operation of the supervisory functions of the League of Nations. The harmonious and effective working of the securities for the protection of the overriding interests of the inhabitants of the mandated territories manifestly depended . upon the whole-hearted co-operation of the mandatory States. But, in view of paragraph 5 of Article 4 of the Covenant requiring representation of a Member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League; paragraph 6 of the same provision conferring the right to cast one vote, and paragraph 1 of Article 5 of the same instrument requiring "the agreement of all the Members of the League represented at the meeting" for decisions at any meeting of the [p 219] Assembly or the Council, the authors of the mandates system could not have been unaware of human frailties and therefore the unrealistic nature of any hope and faith on their part that every mandatory could always be relied upon to show an identity of views with the Council on a given matter relating to the particular mandate, or to manifest a never failing spirit of accommodation to yield to the views of the Council in the interest of the peoples of the territories under mandate. To meet such a contingency, however rare it might be, and equally conscious of the primary purpose of the mandates system, the authors of the mandate instruments, appointed by the Principal Allied and Associated Powers in 1919, introduced the adjudication clause first in 'B' mandates and later in 'C' mandates, and used the same text for both categories, in order to provide a means of judicial protection of the interests of the said inhabitants through the exercise by individual Members of the League of their substantive right or legal interest in the observance of the mandate obligations toward them by the respective mandatories.

In other words the legal right or interest of the League Members individually as well as collectively through the Assembly of the League in the observance of the mandates by the mandatories originated with and inherent in the mandates system, as has been demonstrated above, and an adjudication clause was inserted in each mandate not to confer this right or interest, which is already necessarily implied in Article 22 of the Covenant and in the mandate agreement, but to bear testimony to its possession by the League Members and to enable them, if need be, to invoke in the last resort, judicial protection of the sacred trust.

That the above finding of the Applicants' possession of a legal right or interest in the performance of the Mandate for South West Africa is correct is also borne out by the provision and language of Article 7 (2), the text of which has already been cited earlier.

This right or interest is not, as affirmed in effect by the Judgment, limited to the material or national interests of the individual League Members as provided for in Article 5 of the Mandate for South West Africa relating to freedom of missionaries "to enter into, travel and reside in the territory for the purpose of prosecuting their calling". The broad, plain and comprehensive language of the provision implies that the content and scope of the legal right or interest of the Members of the League of Nations is CO-extensive with the obligations of the Mandatory under the Mandate; it is not restricted to the content of the said Article 5.

If it were to be interpreted as so limited, such interpretation would obviously be incompatible with the all-embracing term "the provisions of the Mandate". If it had been intended by the authors of the instrument to be so restricted in meaning and content, it would have been a simple [p 220] thing to mention "Article 5" instead of the actual term "the provisions of the Mandate”—as stated in the compromissory clause. There is a Chinese proverb put in the form of a question: Why write a long and big essay on such a small subject? The alleged limited purport and scope of the terms employed in Article 7 (2), such as the term "any dispute" or the "provisions of the Mandate", if the allegation were well-founded, would certainly make the actual language of the compromissory clause appear to be extravagant. And yet we know as a fact that the draft 'B' and 'C' mandates, both containing a similarly worded compromissory clause, were considered by several bodies of the Paris Peace Conference composed of eminent statesmen over a period of several months, such as the Milner Commission and the Council of Heads of Delegations in Paris and later by the Council of the League of Nations— all deeply concerned in the matter of the mandates and the proposed mandates system. In fact, within the membership of these bodies, most, if not all, of the principal mandatory Powers were represented.

Moreover, before the draft 'B' and 'C' mandates were sent to the Council of the League of Nations, they had also been referred to the legal experts of the Drafting Committee of the Peace Conference for the purpose of putting them into the proper legal form. Though these experts were not called upon to discuss the content of the drafts, it is reasonable to assume that if the purport of the compromissory clause had been understood by them to be something much more limited than the actual language employed in the drafts, they would certainly have suggested some revision. But they did not make any such suggestion and left the broad, comprehensive language of the clause as it had been presented to them.

Furthermore, the origin of the compromissory clause and the evolution of its present form of wording as to its content is also significant and throws light on the intention of its authors. As brought out in the separate opinion of Judge Jessup appended to the 1962 Judgment, the compro-missory clause was first proposed in the United States' alternative draft for 'B' mandates submitted to the Milner Commission. The representatives of Great Britain and France "both said that they had no objection to the principle of recourse to the international Court" but they objected to the grant of a right to individuals to invoke the jurisdiction of the Court for decision relating to infractions of the rights conferred on them by certain provisions of the draft mandates. However, further discussion resulted in the deletion of the references to the specific articles concerning rights of individuals. All this related to the draft for 'B' mandates, which was, after revision, duly approved by the Commission. Shortly afterwards, a draft was adopted to serve as a pattern for 'C mandates with a paragraph concerning reference to the Court which "was identical with the first paragraph of the United States' draft", which had embodied the principle of recourse to the international Court and to which the British and French representatives had said that they had no objection. (See Judge Jessup's separate opinion, I.C.J. [p 221] Reports 1962, p. 388.) The revision by the Council of the League of Nations of the phrase "any dispute whatever between the members of the League of Nations ..." into the phrase now found in Article 7, namely "if any dispute whatever between the Mandatory and another Member of the League of Nations" was explained by Viscount Ishii, the Rapporteur, on the ground that the members of the League other than the Mandatory "could not be forced against their will to submit their difficulties to the Permanent Court". This change was adopted by the Council and the whole Mandate for South West Africa was approved on 17 December 1920. It is thus seen that all those who had anything to do with the original drafting or the final revision of the clause took the implicit principle of judicial protection relating to the observance of the mandate obligations by the respective mandatory Powers as a matter of course and raised no objections whatever.

It should be stated, in addition, that the same adjudication clause with its broad, comprehensive language and a practically identical text, is embodied in all the 'B' and 'C' mandates, notwithstanding the marked difference between the great variety of national or material interests of the member States, as in the case of the Mandate for Palestine, and the one single kind of national or individual interests relating to missionaries and their freedom to practise their calling, as in the case of the Mandate for South West Africa (Article 5). This fact would seem to support the view that Article 7 (2) of the latter Mandate, like similar provisions in the other mandates of 'B' and 'C' categories, is intended to provide a means primarily for the exercise by League Members of their legal right or interest, through the judicial process, in the performance of the mandate by the mandatory as to its obligations toward the inhabitants of the mandated territory and toward the League of Nations, and only secondarily for the judicial protection of the national or material interests of the Members of the League of Nations.

There is indeed yet another fact which throws light on the point of issue under consideration. The order in which the various obligations of the Mandatory are stipulated in the mandate instrument for South West Africa is not without significance. Thus the unquestionably most important of these obligations—those relating to the promotion to the utmost of the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate—are provided for in Article 2. Then follows Article 3 providing for the prohibition of slave-trade and forced labour and the control of the arms traffic and the prohibition of the supply of intoxicating spirits and beverages to the Natives. Article 4 prohibits the military training of the Natives, etc., and finally Article 5 for ensuring in the Territory freedom of conscience and the free exercise of all forms of worship and the admission of all missionaries, nationals of any States Members of the League of Nations, to enter into, travel and reside in the territory [p 222] for the purpose of prosecuting their calling. After the stipulation of these substantive obligations of the Mandatory follows Article 6 relating to its adjectival obligations of submitting annual reports to the satisfaction of the Council of the League, etc. At the end of the mandate instrument comes Article 7, of which paragraph 1 stipulates the condition for any modification of the terms of the Mandate and paragraph 2 provides the compromissory clause worded in broad comprehensive terms as already noted above. It is therefore not unreasonable to infer from this arrangement the varying degrees of importance which the authors of the instrument attached in their minds to the different categories of obligations of the Mandatory and to conclude that the fact that the compromissory provision with its all-embracing language comes at the end, was intended to apply to all obligations undertaken by the Mandatory and not merely to those under Article 5, thus further confirming the comprehensive scope and purport of Article 7, paragraph 2, as to "any dispute whatever . .. relating to the interpretation or the application of the provisions of the Mandate".

It will also be recalled that the possession of this legal right or interest by the Applicants is the basis of the Court's finding in the 1962 Judgment that the dispute is one envisaged within the purport of Article 7, to establish its jurisdiction. After recalling the rule of construction based upon the natural and ordinary meaning of a provision and referring to the provisions of Article 7 of the Mandate, which mentions "any dispute whatever" arising between the Mandatory and another Member of the League of Nations "relating to the interpretation or the application of the provisions of the Mandate", the Court said:

"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 Article 7 itself." (I.C.J. Reports 1962, p. 343.)
In fact earlier the Advisory Opinion of 1950 by emphasizing simultaneously "the essentially international character of the functions which had been entrusted to the Union of South Africa" and the fact that any Member of the League of Nations could, according to Article 7 of the Mandate, submit to the Permanent Court of International Justice any dispute with the Union Government relating to the interpretation or the application of the provisions of the Mandate, undoubtedly implied the existence of a legal right or interest of the League Members in the performance of the Mandate. Even the two judges who alone [p 223] dissented with the Opinion of 1950 on the question of transfer of the League's supervisory functions to the General Assembly of the United Nations, affirmed the possession of a legal interest by the members of the League of Nations in the observance of the obligations of the Mandatory. Thus Sir Arnold (now Lord) McNair stated:

"Although there is no longer any League to supervise the exercise of the Mandate, it would be an error to think that there is no control over the Mandatory. Every State which was a Member of the League at the time of its dissolution still has a legal interest in the proper exercise of the Mandate. The Mandate provides two kinds of machinery for its supervision—judicial, by means of the right of any Member of the League under Article 7 to bring the Mandatory compulsorily before the Permanent Court, and administrative, by means of annual reports and their examination by the Permanent Mandates Commission of the League." (I.C.J. Reports, 1950, p. 158.)

Judge Read, in his separate opinion appended to the same Advisory Opinion of 1950, put the matter of the legal rights of the members of the League even more strongly. He stated:

"As a result of the foregoing considerations, it is possible to summarize the position, as regards the international status of South-West Africa and the international obligations of the Union arising therefrom, after the termination of the existence of the League:

First: the Mandate survived, together with all of the essential and substantive obligations of the Union.

Second: the legal rights and interests of the Members of the League, in respect of the Mandate, survived with one important exception—in the case of Members that did not become parties to the Statute of this Court, their right to implead the Union before the Permanent Court lapsed." (Italics added.) (Ibid., p. 169.)

It is also to be noted that the resolution of the Assembly of the League of Nations on mandates adopted on 18 April 1946 at its final session before dissolution, corroborates the above finding. As it will be recalled, the final paragraph of this resolution reads:

"4. Takes note of the expressed intentions of the Members of the League now administering territories under mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective Mandates, until other arrangements have been [p 224] agreed between the United Nations and the respective mandatory Powers."

The "expressed intentions" evidently refer to the official declarations made by the representatives of the various mandatory Powers at the meetings of the Assembly, 9-13 April 1946. It is unnecessary to reproduce them here, since they were fully cited in the text of the 1962 Judgment. Suffice it to say that they were all of the nature of a pledge to continue to administer the respective mandated territories in accordance with their international obligations and with the spirit of the respective mandates.

This League session and the resolution it passed on the mandates has more than ordinary meaning and significance with reference to the question now under consideration. In the first place the Council of the League which normally would, as its proper function, deal with the question of the mandates held no meeting for the purpose and instead "with the concurrence of all the members of the Council which are represented at its present session joined the Assembly" in deciding "that, so far as required, it will, during the present session, assume the functions falling within the competence of the Council". This would seem to confirm that the right to ensure the performance of the mandate obligations by the mandatory Powers had always been understood to be shared by the Assembly. Secondly, the pledges of the various mandatory Powers to continue to administer their respective mandates in accordance with the obligations stipulated thereunder as far as possible were in effect made not so much to the Assembly as a body as to the member States. For while the latter were meeting collectively as the Assembly, it was the last time they assumed this character. The dissolution of the League of Nations was by its own resolution to take effect the day following and with it the Assembly, as well as the Council and the Permanent Mandates Commission, equally disappeared for good. If the pledges were to serve any purpose at all as to ensure the observance of the Mandates by the mandatory Powers, they must have been, and were in fact, intended to be addressed more effectively to the individual member States, thereby confirming once more the possession by the latter of a substantive right or legal interest in the mandate performance in all cases.

Indeed on the whole question of the existence of a legal interest of each Member of the League of Nations in the mandates the analysis and conclusion of Judge Read in connection with the Court's Advisory Opinion in 1950, to which some reference has just been made above, are significant and illuminating. He divided the mandate obligations into three classes.

"The first, and the most important, were obligations designed to secure and protect the well-being of the inhabitants. They did not enure to the benefit of the Members of the League, although [p 225] each and every Member had a legal right to insist upon their discharge. The most important, the corner-stone of the mandates system, was 'the principle that the well-being and development of such peoples forms a sacred trust of civilization' a principle which was established in paragraph 1 of Article 22 of the Covenant.

The second kind of obligation comprised those which were due to, and enure to, the benefit of the Members of the League: e.g., in respect of missionaries and nationals.

The third kind of obligation comprised the legal duties which were concerned with the supervision and enforcement of the first and second. There was the compulsory jurisdiction of the Permanent Court, established by Article 7 of the Mandate Agreement; and there was the system of reports, accountability, supervision and modification, under paragraphs 7, 8 and 9 of Article 22 and Articles 6 and 7 of the Mandate Agreement. .. .

These obligations have one point in common. Each Member of the League had a legal interest, vis-à-vis the Mandatory Power, in matters 'relating to the interpretation or the application of the provisions of the Mandate'; and had a legal right to assert its interest against the Union by invoking the compulsory jurisdiction of the Permanent Court (Article 7 of the Mandate Agreement). Further, each member, at the time of dissolution, had substantive legal rights against the Union in respect of the Mandate." (I.C.J. Reports 1950, pp. 164-165.)

A little further on he said that he regarded "as significant the survival of the rights and legal interests of the Members of the League"; with regard to this point, he observed:

". .. the same reasons which justify the conclusion that the Mandate and the obligations of the Union were not brought to an end by the dissolution of the League, lead inevitably to the conclusion that the legal rights and interests of the Members, under the Mandate, survived. If the obligations of the Union, one of the 'Mandatories on behalf of the League', continued, the legal rights and interests of the Members of the League must, by parity of reasoning, have been maintained." (Ibid., p. 166.)

Thus from the foregoing account of the origin of the basic concept of the mandates system, the background of events and circumstances which contributed to its establishment, the history of the drafting and incorporation of the adjudication clause in all the 'B' and 'C' mandates and the meaning and purport of the 18 April 1946 resolution of the last session of the Assembly of the League of Nations as well as the broad, comprehensive language of the provisions of Article 7 (2) of the Mandate under consideration (and indeed of similar articles in the other mandates) all point to the existence of a common intention of [p 226] the authors of the mandate system and the parties to the mandate agreements to make it work and to ensure its effective working with the necessary guarantees in the form of administrative supervision and control by the Council of the League and judicial protection by the Permanent Court through the exercise by Members of the League of their legal right or interest in the performance of the mandates.

It has been maintained that the existence of such a common intention was most unlikely when account is taken of the state of development of the concept and institution of compulsory jurisdiction in the period of the early twenties and the general reluctance to assume such an extensive and onerous obligation. But it should be noted that the whole mandates system was at the time a new and novel idea. It was contemporary with the incorporation of the principle of international protection of labour in the Constitution of the International Labour Organisation and a series of conventions which followed, recognizing a legal interest of member States and conferring upon them "the right to file a complaint with the International Labour Office" against any other Member for "effective observance of any convention which both have ratified". (Articles 26, 411 and 423 of the said Constitution of the International Labour Organisation.) The minorities treaties concluded during the same period for the protection of minority populations in the newly created States and the newly transferred territories recognized the legal interest of a Member of the Council of the League of Nations in the observance of these treaties and obligated the State responsible for the protection to accept compulsory jurisdiction of the Permanent Court of International Justice in a dispute brought before it by the other party thereto. (Hudson, International Legislation, Vol. 1, pp. 312-319.)

The basis concept of the mandates system was strongly opposed by the prospective mandatories at first but it was insisted upon with equal determination more particularly by its primary author, President Wilson. However, once the principle was agreed upon, all parties appeared to be in earnest to make the operation of the system an assured success with its multiple guarantees for the observance of the mandate obligations. It would be incompatible with the principle of good faith to suppose that the mandatory Powers (including the Respondent) having voluntarily accepted the system did not intend really to co-operate for its complete success by respecting the principle of judicial protection embodied in it. That the opposite was the situation is evidenced by the fact that neither the authors of the draft mandates nor the mandatory Powers in approving the respective mandate agreements raised any objection to the plain, all-embracing language of the adjudication clause. On the contrary, the fact of uniform absence of objection on their part to this language of the clause only makes it clear beyond doubt that they all accepted the implicit principle as a matter of course— as an inherently requisite feature of the mandates system itself. [p 227]

On this point of ascertaining the common intention of the parties to a legal instrument, it is pertinent to cite here what Judge Lauterpacht wrote:

"Undoubtedly the treaty is the law of the adjudicating agencies. But, at the same time, the treaty is law; it is part of international law. As such it knows of no gaps. The completeness of the law when administered by legal tribunals is a fundamental—the most fundamental—rule not only of customary but also of conventional international law. It is possible for the parties to adopt no regulation at all. They may expressly disclaim any intention of regulating the particular subject-matter. But, in the absence of such explicit precaution, once they have clothed in the form of a legal rule and once they have found themselves in a position in which that subject-matter is legitimately within the competence of a legal tribunal, the latter is bound and entitled to assume an effective common intention of the parties and to decide the issue. That common intention is no mere fiction."

After citing the Advisory Opinion of the Permanent Court of International Justice on the Interpretation of the Convention of 1919 concerning Employment of Women during the Night and the Advisory Opinion of the same Court on the Competence of the International Labour Organi-sation to Regulate Incidentally the Personal Work of the Employer, he continued:

"The Court admitted that the treaty in question did not contain a provision expressly conferring upon the Organisation jurisdiction in such a very special case as the present. But it gave an affirmative answer to the question put to it for the reason that such competence of the International Labour Organisation was essential to the accomplishment of the purpose of the Organisation as revealed in the constitution.

In these and similar cases the common intention in relation to the particular case must be derived from the common intention of the Treaty as a whole—from its policy, its object and its spirit. . ." ("Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties", in British Year Book of International Law, 1949, Vol. XXVI, pp. 48-85, at p. 79.)

The principle stressed in the above passage is a fortiori applicable to the point of issue under consideration. There is no explicit provision wanting. On the contrary, Article 7 (2) of the Mandate for South West Africa stands out not only to sanction the right of action in the case of the Applicants as Members of the League of Nations but also to bear witness to the implicit existence of a common intention of the parties to the mandate agreement to recognize a legal right or interest [p 228] of such Members in the observance of the mandate agreement by the Respondent.
Moreover, while it may be true that acceptance of the concept of a sacred trust of civilization in and of itself does not necessarily imply more than a moral or humanitarian obligation to respect it, once this concept is made the "corner-stone" of the mandates system and implemented in the legal instruments based upon it such as Article 22 of the Covenant and Article 7 (2) of the Mandate Agreement for South West Africa, full account must be taken of this fact in interpreting the legal relations, the rights and obligations of the parties to these instruments. Such a course does not mean, nor could be said to imply, judicial legislation. It is only a legitimate application 'of the recognized canons of interpretation, in order to give full effect, as regards the Mandate, to "its policy, its object and its spirit".

In this connection it is also appropriate to recall what this Court said of the Genocide Convention:

"In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d'être of the Convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions." (I.C.J. Reports 1951, p. 23.)

The Mandate for South West Africa, like all other mandates, is based upon the principles and provisions of the mandates system as conceived by its authors and as subscribed to by all Members of the League of Nations, including the Respondent, as parties to the Covenant, which is a multilateral treaty. By their common will the high ideals which inspired Article 22 of this treaty, provide "the foundation and measure of all its provisions".

The fact that only one case was brought to the Permanent Court of International Justice by any Member of the League of Nations during the 25 years of its existence under an adjudication clause similar to Article 7 of the Mandate for South West Africa (Article 26 of the Palestine Mandate) in respect of alleged injury to the material interests of a national of the Applicant and that no recourse was ever made to the Court to invoke its protection and ensure due observance by the mandatory Power of its substantive obligations under a given mandate towards the inhabitants of the mandated territory does not necessarily prove that individual League Members had no legal right or interest in such observance. As stated by Judge Read in his separate opinion in 1950, when referring to the obligation of the Union of South Africa [p 229] to submit to the compulsory jurisdiction of this Court in the case of a dispute relating to the interpretation or the application of the provisions of the Mandate under the provisions of Article 7 of the mandate agreement and Article 37 of the Statute, reinforced by Article 94 of the charter:

"The importance of these provisions cannot be measured by the frequency of their exercise. The very existence of a judicial tribunal, clothed with compulsory jurisdiction, is enough to ensure respect for legal obligations." (I.C.J. Reports 1950, p. 169.)

The legal right or interest of the League Members in the performance of the mandate obligations by the Mandatory has always existed though it might appear to be latent. For so long as the conflict of views on a given subject-matter between the Council of the League of Nations and the Mandatory, either as an ad hoc or as a regular member of it, continued to be under discussion and the possibility of reaching an eventual agreement remained, there was no occasion for any member State to resort to judicial action under Article 7, paragraph 2, of the Mandate. For example, the objection of the Mandates Commission to the statement in the preamble of a Frontier Agreement concluded between the Union and Portugal relating to the boundary between Portuguese Angola and the mandated territory that "the Government of the Union of South Africa, subject to the terms of the Mandate, possesses sovereignty over the Territory of South West Africa" was raised at its meetings every year in 1926, 1927, 1929 and 1930. After the Council adopted resolutions on the basis of the Commission's reports and no word of acceptance came from the Mandatory Power, the Commission continued to press for a reply. Finally, "the Union of South Africa, by a letter of 16 April 1930, stated its acceptance of the definition of the powers of the Mandatory contained in, the Reports of the Council". (I.C.J. Pleadings, 1950, p. 198.) However, if the Mandatory had persisted in its own view on this question to the end even after the Council should have obtained an advisory opinion of the Court confirming the interpretation by the Council as being in complete conformity with the Covenant and the mandate agreement, there was no certainty that no member State of the League of Nations, in the exercise of its substantive right or legal interest in the performance of this Mandate, would have brought an action in the Permanent Court to obtain a binding decision on the legal question involved in the dispute with the Mandatory. The infrequency of exercising this legal right or interest does not in any sense prove its non-existence.

Nor is it easy to appreciate the cogency or relevance of the argument to the effect that if there were a necessity for judicial protection of the sacred trust under the mandates system the same necessity must exist under the trusteeship system, on the ground that the resolutions of the United Nations General Assembly, although they can be adopted without the concurrence of the administering authority are, when so [p 230] adopted, only recommendatory in character and have no binding force and yet the jurisdictional clause embodying the right of action of in-dividual member States to invoke the Court is wholly absent from certain trusteeship agreements falling within the functions of the General Assembly.

Manifestly this argument underestimates the significance of the differences in the basic scheme of supervision and control relating to the implementation of the trusteeship agreements as compared with that which was embodied in the mandates system. It is not necessary to enumerate them here; it suffices to note briefly that under Article 18 of the United Nations Charter decisions of the General Assembly on important questions are made simply by a two-thirds majority in contrast with the requirement of a unanimous vote in the Council of the League of Nations, as also in the Assembly, including, in any matter relating to a Mandate, the affirmative or non-dissent vote of the mandatory Power, particularly, in the Council, either as a regular or ad hoc member. Although it is true that the resolutions of the General Assembly relating to trust territories as in many other matters are usually passed in the form of recommendations, the latter are far from being only of the character of a pious wish or moral persuasion. Pursuant to Article 88 of the Charter the Trusteeship Council formulates a questionnaire on the political, economic, social and educational advancement of the inhabitants of each trust territory and, in the language of this provision:

"the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire".

In the individual trusteeship agreements it is either expressly stipulated, as, for example, by Article 16 of the Trusteeship Agreement for the Territory of Togoland under British Administration, of 13 December 1946, that:

"The Administering Authority shall make to the General Assembly of the United Nations, an annual report on the basis of a questionnaire drawn up by the Trusteeship Council in accordance with Article 88 of the United Nations Charter. Such reports shall include information concerning the measures taken to give effect to suggestions and recommendations of the General Assembly and the Trusteeship Council. . ." (Italics added.)

Or it is implicitly provided, as in Article 8 of the Trusteeship Agreement for the Territory of New Guinea of 13 December 1946:

"The Administering Authority undertakes, in the discharge of its obligations under Article 3 of this agreement [undertaking to administer the Territory in accordance with the provisions of the [p 231] Charter and in such a manner as to achieve, in the Territory, the basic objectives of the International Trusteeship System which are set forth in Article 76 of the Charter]:

1. To co-operate with the Trusteeship Council in the discharge of all the Council's functions under Articles 87 and 88 of the Charter;.. ."

In practice the General Assembly also keeps a close watch and calls upon each administering authority concerned through the Trusteeship Council to indicate in its annual report what measures it has adopted to implement the suggestions and recommendations of the General Assembly and the Trusteeship Council. For example, resolution 323 (IV) of the General Assembly of 15 November 1949 resolves:

"6. To ask the Trusteeship Council to include in its annual reports to the General Assembly a special section dealing with the implementation by the administering authorities of its recommendations concerning the improvement of social conditions in Trust Territories, the abolition of corporal punishment and, in particular, the action taken in pursuance of the recommendations contained in paragraph 5 [abolition of all discriminatory laws or practices]."

Again, paragraph 7 of General Assembly resolution 324 (IV) of 15 November 1949 recommends to the Trusteeship Council—

"to include in its annual reports to the General Assembly a special section on the manner in which the Administering Authorities have implemented resolution 36 (III) on the provision of information concerning the United Nations to the peoples of the Trust Terri-tories, resolution 83 (IV) on educational advancement in Trust Territories, free primary education and the training of indigenous teachers, and resolution 110 (V) on higher education in Trust Territories in Africa and, generally, on the implementation of the Council's recommendations in the field of education".

The few illustrations given above suffice to show that in matters relating to the observance of the Charter and the obligations under the trusteeship agreements the resolutions of the General Assembly, though put in the form of recommendations, constitute general directives which the respective administering authorities are expected to observe and implement in practice. Whether these recommendations are to be considered as embodying legal obligations or quasi-legal obligations, is of little practical import in view of the power and authority of the General Assembly under the Charter in general and under the trusteeship system in particular to exercise its supervisory functions over the administration of the trust territories other than those placed under the supervision of the Security Council. In all events, they are expected to be observed and implemented by the administering authorities concerned. If the latter should fail to implement a recommendation, they must give satisfactory reasons, failing which the General [p 232] Assembly continues to call on them to implement the recommendation or recommendations in question. There may be or are one or more administering authorities who continue to disregard a given recommendation, but such failure to respect their own undertaking to co-operate, as is called for by Article 88 of the Charter or the relevant provision of a given trusteeship agreement, do not constitute proof that a recommendation of the General Assembly in and of itself has no binding force; it only demonstrates their unwillingness for one reason or another to discharge their freely accepted duty of co-operation.

Even on the general question of the binding force of the resolutions of the General Assembly, it has been affirmed in conclusion on the basis of a comprehensive study that although there is in the Charter no express undertaking to accept recommendations of the General Assembly similar to the agreement in Article 25 to accept and carry out decisions of the Security Council, "it cannot be said that the Charter specifically negates such an obligation, and it may be possible to deduce certain obligations from the Charter as a whole which it would be impossible to establish from an express undertaking". (''The Binding Force of a Recommendation of the General Assembly of the United Nations" by F. B. Sloan, in British Year Book of International Law, 1948, pp. 1-34, at p. 14.) This is a fortiori true in respect of a recommendation of the General Assembly dealing with matters connected with the trusteeship system and trusteeship agreements, under which the administering authorities have expressly undertaken to Co-operate with the General Assembly and the Trusteeship Council in the exercise of their functions of supervision and control.

Moreover, the fact that under the trusteeship system, because of the differences in its voting procedure for taking decisions as compared with the unanimity rule under the mandates system both in the Council and the Assembly of the League of Nations, there is no necessity for judicial protection of the sacred trust assigned to the administering authority, does not assist in any way to demonstrate the claimed non-existence of a vital need for such protection under the mandates system. The basic structures of the two systems are different though their underlying concepts and principles correspond to each other.

For the reasons stated above, it is to be concluded that the Applicants as member States of the League of Nations under the mandates system as stipulated in Article 22 of the Covenant and implemented in respect of South West Africa by the Mandate Instrument of 17 December 1920, possess a substantive right or legal interest in the observance by the Respondent of all its obligations thereunder.

II

Having arrived at the foregoing conclusion, I deem it incumbent upon me, if not to deal with all the issues presented in the submissions [p 233] of the two Parties, at least to reiterate and further elucidate the two cardinal principles of the mandates system, for they constitute the broad basis of the Mandate for South West Africa, as it was also that of all the other mandates. They are the pillars of the whole system. Their importance cannot be over-stressed: full account of them must be taken in determining the intentions of its authors or in interpreting any of its provisions. It is the more necessary, in my view, to emphasize them here again because the question of this Mandate in one aspect or another has been raised before the Court at least five times in the past 15 years. The instant cases alone have lasted over five years since the Applications were first filed on 4 November 1960.

One of the two principles is, in the words of Article 22, paragraph 1, of the Covenant, "the principle that the well-being and development of such peoples form a sacred trust of civilization". Manifestly, it was consideration of this basic principle which accounts for the fact that the very first obligation of the Mandatory is stated in the second paragraph of Article 2 of the mandate agreement as follows:

"The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate."

Whatever power and authority the Mandatory possesses under the Mandate are clearly not conferred to serve its own ends or to enure to its own benefit or advantage, but solely for the purpose of enabling it to fulfil its obligations. Any policy it adopts to administer the mandated Territory is subject, among others, to this overriding obligation. Thus the policy of apartheid or separate development (here I refer, not to such policy as is in operation in South Africa, with which the Court is not called upon to deal, but only to that which has been and is pursued in South West Africa) should be examined in the light of this primary obligation. The laws, regulations and measures of the Union (now Republic) of South Africa are relevant to the instant cases only in so far as they, by official proclamations, have been and are applied or made applicable to the mandated Territory.

From the undisputed facts presented in the written and oral pleadings of the Parties and in the testimony and cross-examination of the witnesses and experts before the Court, it appears that this policy, as constituted by the said laws, regulations and measures applied or applicable to South West Africa, consecrates an unjustifiable principle of discrimination based on grounds of race, colour or ethnic origin in establishing the rights and duties of the inhabitants of the Territory. It is applied to the life, work, travel and residence of a non-White or a Native in the Territory. It is enforced in matters relating, for example, [p 234] to the ownership of land in the so-called Police Zone, mining and the mining industry, employment in the Railways and Harbours Administration, vocational training and education.

Quite apart from considerations of an international norm or standard of non-discrimination in general international law of today or in the particular sphere of the trusteeship system of the United Nations, such discrimination as practised by the Mandatory was consistently criticized and deprecated even in the days of the Permanent Mandates Commission of the League of Nations.

The ill effects and general detriment produced by the policy of apartheid or separate development upon the vast majority of the people (452,254 non-Whites: 73,464 Whites) of the Territory are great and far-reaching. They are neither marginal nor minimal, as has been claimed. Nor are they justified by arguments based upon the principle of protection, the principle of reciprocity, or the principle of compensation. It is a self-evident truth that a whole consists of its parts and the parts make up the whole. Any nation, community or society is made up of its indi-vidual members. It can be a contented, progressive and developed nation or community or society only when the mass of its individual members enjoy well-being and achieve progress and advancement on the basis of equality before the law. The individuals' dissatisfaction and detriment arising from their discriminatory treatment by law inevitably produce adverse effects, however marginal, on the collectivity. In view of the "sacred" mission to enable the peoples of the mandated territories "to stand by themselves under the strenuous conditions of this modern world" (Article 22 of the Covenant), and of the explicit obligations of the Mandatory, stipulated in Article 2 of the Mandate for South West Africa, to do its utmost to attain the objective of self-determination, it is not unreasonable to expect that after 40 years of administration of the Territory by the Mandatory, the people thereof would have attained a substantial degree of political development. Yet it appears from the record that with the possible exception of the Rehoboth Basters (11,257) who have a semblance of limited local self-government in their district, none of the non-White groups are granted any significant measure of the franchise. Even the Ovambos (1960 census figures: 239,363), whose group makes up more than 40 per cent. of the total population of the Territory (526,004) do not enjoy any substantial measure of local self-government. As the Odendaal Commission of Enquiry, a government-appointed body, has reported (January 1964) in connection with its recommendation to relax the control on the liquor traffic: "today they have progressed so far on the road of development that the Commission has recommended that they be granted an advanced form of self-government ; and, secondly, that if the Commission failed to comply with the strong representation made by all groups, the latter would not only be bitterly disappointed but would even be aggrieved." (Odendaal Report, p. 487.)[p 235]

On the other hand the White group, since the enactment of the South West Africa Constitution Act, 1925, has been exercising a right of self-government through the Legislative Assembly of South West Africa constituted by members they elect periodically. This legislative organ, to which the non-White groups are not entitled to elect representatives, is empowered to make laws for the Territory to cover all matters except those reserved in the said Act, including Native Affairs, railways and harbours, and certain other matters.

The record thus shows that the policy of apartheid or separate development, as pursued in South West Africa, as far as the non-White groups are concerned, has not been and is not compatible with the basic principle of the "sacred trust of civilization" or with the Respondent's obligation under Article 2 of the Mandate "to promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate".

The second cardinal principle of the mandates system is international accountability for the performance of the sacred trust. It is broadly sanctioned by paragraphs 7, 8 and 9 of Article 22 of the Covenant and more concretely by the provisions of Articles 6 and 7 of the mandate agreement. By virtue of the said Article 6 requiring the Mandatory to "make to the Council of the League of Nations an annual report to the satisfaction of the Council" on its administration of the mandated territory and similar provisions in the other Mandates, this body, by its resolution of 31 January 1923, also adopted a set of rules calling upon the Mandatories to transmit petitions from the inhabitants of each mandated territory to the Permanent Mandates Commission. In short, international accountability necessarily comprises the essential obligations of submission to international supervision and control of the mandatory's administration of the mandated territory and acceptance of the compulsory jurisdiction of the Permanent Court in any dispute between it and another Member of the League of Nations relating to the interpretation or the application of the provisions of a given mandate.

These obligations constitute a fundamental feature of the mandates system. The dissolution of the League of Nations and the disappearance of the Council and the Permanent Court did not terminate them. By virtue of Article 37 of the Statute the compulsory jurisdiction of the Permanent Court was transferred to the present Court. In regard to the obligation of international accountability as embodied in the relevant provisions of the Covenant and the Mandate for South West Africa, it had, by virtue of the principle of severability under international law, remained in existence, though latent after the disappearance of the Council and the Permanent Mandates Commission of the League. It only required an arrangement as envisaged in the resolution on mandates unanimously adopted by the Assembly of the League of Nations at its last meeting on 18 April 1946, including the concurrence of the Respondent. [p 236]

It will be recalled that as early as April 1945 at San Francisco, about a year before the dissolution of the League of Nations, when the Charter of the United Nations was being drafted, the Respondent had apparently considered the proposed new international organization to be of an importance equal with, if not greater than, that of the League at Geneva, and announced to the San Francisco Conference its intention to incorporate South West Africa as part of the Union of South Africa. In the first General Assembly of the United Nations in 1946 it submitted a formal proposal of incorporation for approval. When this proposal was rejected, it, while expressing regret and disappointment, announced that it would continue to submit reports on its administration of the mandated territory of South West Africa as it had done before vis-à-vis the League of Nations.

Although the Respondent, in submitting the reports, stated that the action was voluntary on its part and for information only such as provided for by Article 73 (e) of the Charter of the United Nations regarding non-self-governing territories, the legal effect of its declaration and act acknowledging the General Assembly as the competent international organ in the matter of the Mandate for South West Africa, in view of its obligation of international accountability under Article 6 of the Mandate, obviously cannot be determined unilaterally by it alone (Article 7 (l)), just as the content and scope of its obligations under that instrument cannot be governed by its own interpretation of Article 7 (2) of the Mandate. Nor could the question of the validity of its subsequent declaration to discontinue further reports to the General Assembly on its administration of the mandated territory, in the actual circumstances, be resolved solely by itself without regard to the attitude and action of the General Assembly.

The General Assembly, on its part, notwithstanding its earlier hesitation (resolution XIV-1, clause 3C, of 12 February 1946), definitely undertook to exercise its powers and functions under the Charter and to deal with the matter of the Mandate for South West Africa, as evidenced by resolution 65 (1) of 14 December 1946, declaring itself "unable to accede to the incorporation of the territory of South West Africa in the Union of South Africa". By resolution 141 (II) of 1 November 1947, it took note of the Respondent's decision not to proceed with the incorporation but to maintain the status quo. In fact the competence and determination of the General Assembly to exercise supervision and to receive and examine reports relating to the administration of South West Africa under the Mandate were also confirmed by resolutions 227 (III) of 26 November 1948 and 337 (IV) of 6 December 1949.

It appears clear from the foregoing statements and official acts of the Mandatory as well as the General Assembly that there was, by necessary implication, consent and agreement on the part of both parties in the matter of exercise of supervisory functions by the latter of the administration of the Territory by the former.[p 237]

Moreover, as an original Member of the United Nations, the Respondent had not only participated in the drafting of the Charter including Chapters XII and XIII relating to the international trusteeship system as well as Chapter XI regarding non-self-governing territories and accepted the principles underlying it, but had, by joining in the unanimous vote of the Assembly of the League of Nations to adopt the final resolution of 18 April 1946 on mandates also accepted the understanding embodied in this act. Paragraphs 3 and 4 of this resolution read:

"3. Recognizes that on the termination of the League's existence, its functions with respect to the mandated territories will come to an end, but notes that Chapters XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League;

5. Takes note of the expressed intentions of the Members of the League now administering territories under Mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective Mandates, until other arrangements have been agreed between the United Nations and the respective mandatory Powers."

For by paragraph 3 of the above-cited resolution, the Respondent, like the other mandatory Powers and remaining Members of the League, recognized the correspondence to each other of the principles of the trusteeship system and the mandates system and by paragraph 4 it undertook to make an arrangement with the United Nations by mutual agreement, relating to the Mandate for South West Africa.

It is true that the arrangement which the Respondent had envisaged then was for incorporation of the mandated territory into the Union of South Africa. But, as seen earlier, the Respondent, having failed to obtain approval of the proposed incorporation, expressly undertook to continue to send annual reports on its administration in recognition of the General Assembly's supervisory power over the Mandate, because, to quote its earlier words in the Assembly of the League of Nations:

"The Union Government will nevertheless regard the dissolution of the League as in no way diminishing its obligations under the Mandate, which it will continue to discharge with the full and proper appreciation of its responsibilities, until such time as other arrangements are agreed upon concerning the future status of the Territory."

By its own initiative the Respondent effected an arrangement with the General Assembly as seen above and as envisaged in paragraph 4 of the League resolution as cited earlier. Further, in a memorandum sent by the South Africa Legation in Washington to the Secretary-General of the United Nations on 17 October 1946, it was likewise stated, though the League had at that time already disappeared: "This responsibility [p 238]of the Union Government as Mandatory is necessarily inalienable."

The declaration of the Mandatory's representative in the League Assembly cited above was likewise repeated by the Prime Minister of the Union in a statement to the Fourth Committee of the General Assembly of the United Nations on 4 November 1946.

In view of the foregoing account of the declarations and conduct of the Respondent, expressly or implicitly recognizing the competence and the supervisory authority of the United Nations General Assembly in the matter of the Mandate of South West Africa, its present failure to continue to submit annual reports to it and to accept its supervision is incompatible not only with its basic obligation under Article 6 of the Mandate and with its undertaking toward the League Assembly at its final session but also with its obligations under the United Nations Charter and its undertaking toward the General Assembly.

(Signed) V. K. Wellington Koo.

[p 239] DISSENTING OPINION OF JUDGE KORETSKY

I can in no way concur in the present Judgment mainly because the Court reverts in essence to its Judgment of 21 December 1962 on the same cases and in fact revises it even without observing Article 61 of the Statute and without the procedure envisaged in Article 78 of the Rules of Court.
The Court has said in the operative part of its Judgment that "the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims ...".

But the question of the Applicants' "legal right or interest" (referred to in short as their "interest") in their claims as a ground for instituting proceedings against the Respondent as Mandatory for South West Africa was decided already in 1962 in the first phase (the jurisdictional phase) of these cases.

At that time, the Respondent, asserting in its third preliminary objection that the conflict between the Parties "is by reason of its nature and content not a 'dispute' as envisaged in Article 7 of the Mandate for South West Africa", added, "more particularly in that no material interests of the Governments of Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby" (italics added). The adjective "material" (interests) was evidently used not in its narrow sense—as a property interest.

In dismissing the preliminary objection of the Respondent the Court then said that "the manifest scope and purport of the provisions of this Article (i.e., Article 7) indicate that the Members of the League were understood to have a legal right or interest 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". (Italics added.) (P. 343.) And a little later the Court said: "Protection of the material interests of the Members of their nationals is of course included within its compass, but the well-being and development of the inhabitants of the mandated territory are not less important" (p. 344).

So the question of the Applicants' interests in their claims was decided as, one might Say, it should have been decided, by the Court in 1962. The question of an applicant's "interest" (as a question of a "qualité") even in national-law systems is considered as a jurisdictional question. For example, "le défaut d'intérêt" of an applicant is considered in the French law system as a ground for "fin de non-recevoir de procédure".[p 240]

The Rules of Court, and the practice of the Court, do not recognize any direct line of demarcation between questions of the merits and those of jurisdiction. The circumstances of the case and the formulation of the submissions of the parties are of guiding if not decisive significance.

The Respondent, as noted above, raised the question of the Applicants' interests. The Court decided this question at that time. It did not consider it necessary to join it to the merits as the character of the Applicants' interests in the subject-matter of their claims was evident. Both Parties dealt with this question in a sufficiently complete manner. The Applicants, as will be noted later, did not seek anything for themselves ; they asserted only that they have a "legal interest to seeing to it through judicial process that the sacred trust of civilization created by the Mandate is not violated". To join the question of the Applicants' "interests" in their claims to the merits would not "reveal" anything new, as became evident at this stage of the cases. And it is worthy of note that in the dissenting opinion of President Winiarski (pp. 455 ff.), in the joint dissenting opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice (pp. 548 K.) and in the dissenting opinion of Judge ad hoc van Wyk pp. 660 ff.), the question of the Applicants' interests was considered on a jurisdictional plane.

The Respondent did not raise this question in its final submissions at this stage of the merits. The Court itself has now raised the question which was resolved in 1962 and has thereby reverted from the stage of the merits to the stage of jurisdiction. And thus the "door" to the Court which was opened in 1962 to decide the dispute (as the function of the Court demands (Article 38 of the Statute)), the decision of which would have been of vital importance for the peoples of South West Africa and to peoples of other countries where an official policy of racial discrimination still exists, was locked by the Court with the same key which had opened it in 1962.

Has the 1962 Judgment of the Court a binding force for the Court itself?

The Judgment has not only a binding force between the parties (Article 59 of the Statute), it is final (Article 60 of the Statute). Being final, it is —one may say—final for the Court itself unless revised by the Court under the conditions and in accordance with the procedure prescribed in Article 61 of the Statute and Article 78 of the Rules of Court.

In discussing the meaning of the principle of res judicata, and its applicability in international judicial practice, its significance is often limited by the statement that a given judgment could not be considered as binding upon other States or in other disputes. One may sometimes easily fail to take into consideration the fact that res judicata has been said to be not only pro obligatione habetur, but pro veritate as well. And it cannot be said that what today was for the Court a veritas, will tomorrow be a non-veritas. A decision binds not only the parties to a given case, but the Court itself. One cannot forget that the principle of immuta-[p 241]bility, of the consistency of final judicial decisions, which is so important for national courts, is still more important for international courts. The practice of the Permanent Court and of this Court shows the great attention they pay to former judgments, their reasons and opinions. Consideration must be given even to the, question whether an advisory opinion of the Court, which is not binding for the body which requested it, is binding for the Court itself not only vi rationis but ratione vis as well.

Could it possibly be considered that in a judgment only its operative part but not the reasons for it has a binding force? It could be said that the operative part of a judgment seldom contains points of law. Moreover, the reasons, motives, grounds, for a given judgment may be said to be the "reasons part" of the judgment. The two parts of a judgment—the operative part and the reasons—do not "stand apart" one from another. Each of them is a constituent part of the judgment in its entirety. It will be recalled that Article 56 of the Statute says: "The judgment shall state the reasons on which it is based" (italics added). These words are evidence that the reasons have a binding force as an obligatory part of a judgment and, at the same time, they determine the character of reasons which should have a binding force. They are reasons which substantiate the operative conclusion directly ("on which it is based"). They have sometimes been called "consideranda". These are reasons which play a role as the grounds of a given decision of the Court—a role such that if these grounds were changed or altered in such a way that this decision in its operative part would be left without grounds on which it was based, the decision would fall to the ground like a building which has lost its foundation.

To define the binding force of the reasons for a judgment a reference has sometimes been made to the Advisory Opinion of the Permanent Court relating to Polish Postal Service in Danzig (1925, P.C.I.J., Series B, No. II, p. 30). But the Permanent Court said on that occasion "by no means . . . every reason given in a decision constitutes a decision". It is evident that the Court did not assert then that reasons—as a part of a decision—have no binding force at all. It considered that not all reasons for a decision constitute a binding part of it. Somewhat earlier it contrasted "binding" reasons and "non-binding" ones; it said: "it is certain that the reasons contained in a decision, at least in so far as they go beyond the operative part, have no binding force as between the parties concerned."

The reason of the 1962 Judgment relating to "a legal right or interest" of the Applicants served as a ground for the Court's decision to dismiss the third preliminary objection submitted by the Respondent. And what was then decided with the reasons "on which it is based" is finally not provisionally decided. And I repeat that these reasons cannot be reversed in the way chosen by the Court. [p 242]

The 1962 Judgment met with a somewhat widespread response in legal periodicals. I consider it worthwhile to cite at least from one article as it came from juridical circles in South Africa. I have in mind an article which was published in The South Africa Law Journal, 1964. The author (R. Ballinger) said there, almost paraphrasing the words of the Judgment:

"The broad, clear and precise language (of Article 7) made it obvious that Members of the League had been understood to have a legal interest in the observance of its obligations towards the inhabitants of South West Africa by the Mandatory." (P. 46.)

And some pages later he wrote, evaluating the Judgment in a general way:

"We must accept that one thing has been finally settled in international law by the Judgment on the Preliminary Objections: the Mandate as a whole is still legally in force and the Republic cannot unilaterally rule in the territory."

***

But since the Court based its judgment on the assumption of an absence of any legal right or interest on the part of the Applicants in their claims and since they, in the Court's words "cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims . .." one has to return to the question of the nature of the Applicants' interest in their claims.

One might accept an old principle “pas d'intérêt, pas d'action". But the question is how to define a notion of "interest" and how to Say what an interest is about. Should we have recourse to the notion which was developed in civil law doctrine and practice, of which the inherent characteristic was and still is to regard all interests in the light of material, property interest, a man's personal (subjective), proper, own interest (which, though sometimes a moral interest, is more often expressed "in cash" as well)?

Long ago there were warnings against the danger of an unreserved transference of the principles of civil law and process into international (public) law and into the procedure of international courts. Here the character of relations and rights is of another kind. Here one cannot think in civil law categories. The notion of a "general interest" finds wider scope in international law. It may be seen that the notion of a "general interest" and actions in a general interest are now not alien to national law systems (particularly in socialist law systems, even in their civil-law procedures).
The French authors H. Solus and R. Perrot (in their Droit judiciaire privé, 1961), speaking (p. 98) about the Roman principle "no right, [p 243] no action”—"this early concept of the action lived on after the Roman procedure, and endured through the passing centuries”—have noted further:

[Translation]

"Throughout the whole of the nineteenth century, this concept was admitted without difficulty by private law theorists until the time when the intense development of contentious business in the administrative courts, at the beginning of the twentieth century, made it necessary for the theorists to reconsider the traditional concept, which was a legacy from Roman law and which the classical doctrine had conserved. It was indeed no longer adapted to proceedings ultra vires the essential object of which is not to settle a dispute between two individuals who claim concurrent rights, but to ensure respect for legality", .. . and, for that purpose, "it was necessary to assimilate proceedings ultra vires to a real action at law; the theorists of public law strove to fit the structure of those proceedings into the notion of action but concerned themselves only with the seisin of the court and carefully avoided all reference to any subjective right" (italics added).

Might one Say, paraphrasing the Solus-Perrot words, that the essential object of the Applicants was to ensure respect for a proper interpretation and application of the provisions of the Mandate and that they had and have a right to apply to the Court without making any reference to "any subjective right"?

It is necessary to turn to the history of the inclusion of: the jurisdictional clause in the mandate instrument. It is a fact that the Mandates Commission (usually called the Milner Commission) was set up in June 1919 for the purpose of drafting mandates instruments 'B' and 'C There were two tendencies that arose at once (a) to defend first of all the interests of commercial and industrial circles (this was reflected in seeking to include in the drafts clauses concerning the "open-door", and "commercial equality"), and (b) to protect indigenous peoples. The French member of the Commission (M. Simon) expressed the view "that the idea of commercial equality preceded that of the Mandates, that it embraced the whole theory of the Mandates, that the Mandates had been devised to ensure: (1) commercial equality; (2) the protection of indigenous populations" and that "the Mandate could not exist without those two conditions". [Translation.] But the President of the Commission (Lord Milner) did not agree with this.

He said:

[Translation]

"He maintained that the 'C' Mandate differed from the 'B' Mandate precisely in respect of commercial equality. Territories which came within the category of the 'C' Mandate were attached to the State of the mandatory Power and were consequently subject [p 244] only to the stipulations concerning the protection of indigenous peoples ..." (italics added).

And this difference between the two kinds of mandates 'B' and 'C resulted in two kinds of jurisdictional clauses in drafts relating to them.

The draft of mandate 'B' had Article 15 which consisted of two paragraphs : one which corresponds to the present Article 7 (2) of the Mandate and a second which read as follows:

[Translation]

"The subjects or citizens of States Members of the League of Nations may likewise bring claims concerning infractions of the rights conferred on them by Articles 5, 6, 7, 7a and 7b of this Mandate before the said Court for decision."

The draft of mandate 'C' contained a jurisdictional clause (Article VI) consisting of one paragraph only, which repeated the wording of the corresponding (first) paragraph of Article 15 of the draft of mandate 'B'.

As this might have some importance for the interpretation of Article 7 (2) of the present Mandate it is worthy of note that Article 15 (2) dealt not with national rights of member States but with the rights of nationals of such States. An attempt was then made on the basis of this paragraph to allow private persons and companies to be parties in cases before the Court. But that idea met with strong objection, and then, on Lord Cecil's proposal, the paragraph was drafted as follows:

[Translation]

"The Members of the League of Nations will likewise be entitled on behalf of their subjects or citizens to refer claims for breaches of their rights, etc."

This was a typical formula for a clause providing for diplomatic (judicial) intervention.

The Cecil formula did not omit any references (see "etc.") to Article 5 (about the commercial and industrial rights of citizens), Article 6 (about the freedom of conscience and religion), Article 7 (about equal treatment), Article 7a (about concessions), Article 7b (about tariffs), and it is clear that possible claims based on those Articles, which were transformed by the new text from being rights of nationals of member States to being national (special) rights of these States, did not and do not limit the rights of member States which were envisaged in other Articles of the drafts, such as Articles 3, 4 and 10 (obligations in relation to indigenous peoples), Article 8 (about the prohibition of the traffic in opium), etc.

The wording of paragraph 2 was omitted in the subsequent texts of the Mandates (except that of Tanganyika) but one cannot interpret the omission as a ground for asserting that Article 7 (2) confers on a member State the right to submit to the Court a dispute with the Mandatory relating to the interpretation and application of the Mandate only if [p 245] it can establish its own legal right or interest in its claim. The Court in its 1962 Judgment stated rightly in this connection: "Protection of the material interests of the Members or their nationals is of course included within its [Article 7] compass, but the well-being and development of the inhabitants of the Mandated territory are not less important." (P. 344.)

All this relates to a 'B' mandate. A 'C' mandate had (and has) no provisions which could be connected (directly at least) with the specific legal rights and interests of member States or their nationals (save perhaps in some measure Article 5, which was added for reasons which were not aimed at protecting direct State interests). And accordingly the draft of a 'C' mandate had no paragraph 2 analogous to that of a 'B' mandate.

But why at that time was a system of judicial supervision in regard to the correctness of the interpretation and the application of the provisions of the Mandate introduced into the mandates system?

Some general considerations are necessary by way of explanation.

The mandates system arose in the conflicting conditions of the post-War 1 international situation, when the Principal Allied and Associated Powers, or some of them, realized that they should try—parallel with their endeavour to reconcile their contradictions—to mitigate the colonial forms of undisguised domination, to respond, in the epoch of national liberation movements in colonial territories, to the struggle of dependent peoples striving for independence, to pacify them, to give a hope to those peoples that they would be able to achieve their freedom by peaceful means, through the mandates system. It was then that the notion of a sacred trust of civilization found expression.

This made it possible for the Court to Say in its 1950 Advisory Opinion (p. 132): "The Mandate was created in the interest of the inhabitants of the territory and of humanity in general, as an international institution with an international object—a sacred trust of civilization." Reference was made in the Court to President Wilson's words: "The fundamental idea would be that the world was acting as trustee through a mandatory."

To defend such a system (as created in the interest of indigenous peoples), seemed to some to be a "common cause".

Two kinds of securities for the performance of this trust were created: (a) political supervision by the Council of the League of Nations, to whose satisfaction the Mandatory was required to make an annual report, and (b) judicial supervision by the Permanent Court, which had to decide whether the Mandatory's interpretation or application of the provisions of the Mandate were correct.

It is not necessary to dwell at any length on the concrete reasons why [p 246] the task of supervision was divided between the Council of the League and the Permanent Court. It was said that it was rather difficult to settle disputes relating to the Mandate in the Council as under the unanimity rule the vote of a Mandatory was a deciding one, that it would sometimes be more convenient to turn a dispute relating to the interpretation or the application of the provisions of the Mandate into the channel of calm judicial consideration.

But who was entitled to institute proceedings against a Mandatory? Neither the League itself nor its Council could bring an action in the Court. And then the right to apply to the Court in defending the "common cause" was entrusted to any Member of the League.

Was this something strange at that time? I venture to cite an excerpt from a pamphlet of the League: La Cour permanente de Justice internationale (Geneva, 1921, p. 19):

[Translation]

"The question has been raised whether the principal organs of the League—above all, the Council—should not be able, as such, to be a party to a dispute before the Court. This idea has, however, been discarded both by the Council at its Brussels meeting and by the Assembly. On the other hand, it is understood, as is expressly stated in the report on the Statute approved by the Assembly, that groups of States may appear as a party. Consequently, there is nothing to prevent the individual States represented at a given moment on the Council from instituting an action collectively, but not as the Council of the League. This possibility may prove to be of special value when it comes to enforcing certain stipulations of the treaties concerning the protection of racial, religious, etc. minorities."

And one could find in the minorities treaties, which were concluded afterwards, a jurisdictional clause, for example in the declaration, concerning the Protection of Minorities in Albania, 2 October 1921, Article 7.

"Any difference of opinion as to questions of law or fact arising out of these Articles [of the Treaty] between the Albanian Government and any Power a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. Any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice . . ."

It is important to emphasize that any Member of the Council of the League had a right to apply to the Permanent Court in regard to questions connected with any of the provisions of the Treaty without requiring any specific personal interest of a given Member or its nationals in a dispute with the government concerned. The Article mentioned [p 247] only "any difference of opinion as to questions of law or fact . ..". The fact that in the minorities treaties the circle of possible Applicants was limited does not prevent their jurisdictional clauses from being considered as a manifestation of a new (in international judicial procedure) principle of the recognition of actions in a general interest.

This principle had to be developed in the mandates system. And that was done. It is relevant to cite Judge Oda, who said in his dissenting opinion in the Mavrommatis case (P.C.I.J., Series A, No. 2, p. 86):

"Since the Mandate establishes a special legal relationship it is natural that the League of Nations, which issues the Mandate, should have rights of supervision as regards the Mandatory. Under the Mandate, in addition to the direct supervision of the Council of the League of Nations (Articles 24 and 25) provision is made for indirect supervision by the Court; but the latter may only be exercised at the request of a Member of the League of Nations (Article 26). It is therefore to be supposed than an application by such a Member must be made exclusively with a view to the protection of general interests..." (Italics added.)

These "general interests" in relation to a 'C' mandate might be only the interest of protecting the indigenous peoples, which were (and are) under the Mandate. And if the judgment of the Court insists that the Applicants had to establish their own legal interests in the subject-matter of their claims, one might say that the general interest in a proper observance of the provisions of the Mandate became the interest of any Member of the League on his own, as his proper interest.

This is confirmed by what might appear to be merely a detail: Article 7 (2) of the Mandate puts the word the "provisions of the Mandate" in the plural—that is to say, the Applicants possessed the right to apply to the Court on questions relating to the interpretation or the application of all provisions of the Mandate (and not merely relating to provision 5 (the missionaries clause)).

But this does not mean that the Applicants could be considered as some kind of individual control organ. The Court itself was and is a judicial supervisory organ in respect of the questions envisaged in Article 7 (2) of the Mandate, but the right to institute proceedings against a Mandatory by bringing an application against him was in the hands of any Member of the League. When Judge Nyholm (P.C.I.J., Series A, No. 11, p. 26) spoke of "a right of control which a State Member of the League may exercise", he added "by applying to the Court" (italics added), so a State Member did not "by applying to the Court" convert itself into an organ of judicial control. It was endowed with a right, one may say, of judicial initiative within the limits defined by Article 7 (2) [p 248]

To exercise this judicial initiative was the real interest of the Applicants in these cases. They have, from the very beginning, asserted (Memorials, pp. 91-92) that they have a "legal interest to seeing to it through judicial process that the sacred trust of civilization created by the Mandate is not violated".

And, to prove the Applicants' right to apply to the Court on this ground, it is not necessary to assert that the Mandate was established "on behalf of the Members of the League in their individual capacities" (Judgment, para. 20), or that the Applicants (as former Members of the League) were separate parties to the instrument of mandate as such, that they had a status, analogous to that of a beneficiary or—which is much the same—that they were tertii in favorem of whom the Mandate' was instituted. To lay down these conditions would be beside the point as the Applicants themselves did not rest their right to invoke the jurisdiction of the Court upon such grounds.

Article 7 (2) does not call for such conditions. Its wording is quite clear to anyone who is not seeking to read into it what it does not contain. It provides for the Submission to the Permanent Court of "any dispute whatever ... between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate". This is the basic legal criterion (to use the words of the Judgment in the Mavrommatis case (P.C.I.J., Series A, No. 2, p. 16)) which (as was said there) determined and limited the jurisdiction of the Court in cases related to Mandates. If one wants to differentiate in these cases between a right to invoke the jurisdiction of the Court and the substantive right (which underlies the claims) it is practically impossible to do so as in these cases the substantive right of the Applicants, their legal right or interest, in the subject-matter of the claims, one may say, coincides with their right to submit to the Court their dispute relating to the interpretation or the application of the provision. In the Applications they did not seek anything for themselves. They asked the Court to declare and adjudge (if we generalize their final submissions) mainly on the question of the rightful interpretation and application of the provisions of the Mandate, as the Respondent denied that its official policy of apartheid is inconsistent with Article 22 of the Covenant and more especially with Article 2 of the Mandate. Here the question is not that of claiming from the Mandatory the carrying out of the "conduct of the Mandate" provisions of the Mandate. This would be in some sense a "displacement" of the real position of the Applicants.

They do not dictate to the Mandatory how to carry out the Mandate; they have laid before the Court the question of how to interpret the provisions of the Mandate; whether they are rightly applied by the Mandatory; whether the Mandatory's policy in the Territory of South West Africa, which has caused so much concern to world public opinion and to Members of the United Nations, is consistent with the provisions of the Mandate and with its purpose and principles. Such a right of [p 249] the Applicants to apply to the Court on these matters was established not aliter vel aliunde (see para. 65), but in Article 7 (2). This right is a right of judicial initiative, which one might compare mutatis mutandis with legislative initiative.

(Signed) V. Koretsky.

[p 250] DISSENTING OPINION OF JUDGE TANAKA

I

On 4 November 1960, the Governments of Liberia and Ethiopia (hereinafter referred to as the "Applicants") submitted an Application to this Court to institute proceedings against the Union of South Africa, now the Republic of South Africa (hereinafter referred to as the "Respondent"). The Respondent filed four preliminary objections relating to the jurisdiction of the Court. These objections having been dismissed by a Judgment dated 21 December 1962 and the written and oral pleadings on the merits being completed, the Court has now to decide on the submissions of the Applicants presented to the Court in the Memorials and amended by the Applicants during the course of the oral proceedings (on 19 May 1965).

One of these preliminary objections rejected by the 1962 Judgment was the third preliminary objection which related to the nature of the dispute brought before the Court by the Applicants, namely to the question of the existence of their legal right or interest. This matter again, at this stage of the proceedings, has been taken up by the Court and examined, but from the viewpoint of the merits.

Here, attention must be drawn to the Court's characterization of the question of the Applicants' legal interest, namely its statement that "there was one matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicants' standing in the present phase of the proceedings .. . the question ... of their legal right or interest regarding the subject-matter of their claim, as set out in their final submissions".

The result is that the Applicants' claims are declared to be rejected on the ground of the lack of any legal right or interest appertaining to them in the subject-matter of the present claims and that the 1962 Judgment is substantively overruled concerning its decision on the third preliminary objection.

Although we do not deny the power of the Court to re-examine jurisdictional and other preliminary matters at any stage of proceedings proprio motu, we consider that there are not sufficient reasons to overrule on this point the 1962 Judgment and that the Court should proceed to decide the questions of the "ultimate" merits which have arisen from the Applicants' final submissions.

We are again confronted with the question whether the Applicants possess a legal right or interest in the proper discharge by the Respondent, as the Mandatory, of the obligations incumbent upon it by virtue of the "conduct clauses" in the mandate agreement. [p 251]

A negative conclusion is derived either from the nature of the interest, or from the capacity of the Applicants.

It is argued that the dispute brought before the Court by the Applicants does not affect any material interest of the Applicant States or their nationals and is not envisaged in Article 7, paragraph 2, of the Mandate.

The Mandate, as is stated in more detail below, presents itself, economically and sociologically, as an aggregate of several kinds of interest.
The personal structure of the mandates system is very complicated and sui generis; besides the mandatory, the League and the inhabitants of the territories, there are persons who are connected with the mandate in some way, particularly those who collaborate in the establishment or in the proper functioning of this system, such as the Principal Allied and Associated Powers and the Members of the League.

The interests corresponding to the categories of persons mentioned are multiple. Here, only the interest of Members of the League is in question, since the question of the existence of a legal interest of the Applicants as former Members of the League has now to be determined.

The interests which may be possessed by the member States of the League in connection with the mandates system, are usually classified in two categories. The first one is the so-called national interest which includes both the interest of the member States as States and the interest of their nationals (Article 5 of the Mandate). The second one is the common or general interest, which the member States possess in the proper performance by the mandatory of the mandate obligations.

Whether the adjudication clause, namely Article 7, paragraph 2, of the Mandate can cover both kinds of interests, or only the first one, namely national interest, is the question that has to be answered in the present cases.

Here, we must recognize the fact that the above-mentioned two kinds of interests are different from each other. The first category of interest although related to the Mandate, is of an individual nature and each member State of the League may possess such an interest regarding the mandated territory, incidentally, that is to say, for some reason other than the Mandate itself. The second category of interest emanates from the sphere of social or corporate law concerning the function of the League in regard to the Mandate. The member States of the League are in the position of constituting a personal element of the League and its organs and, consequently, are interested in the realization of the objectives of the mandates system and in the proper administration of mandated territories. The interest which the member States possess concerning the Mandate is, in its content, the same for all Members of the League, and is therefore general and uniform in the case of each member State, thereby differing from the first category of interest, which emanates from the individual sphere. However, the fact that it is of this nature does not prevent it from possessing the [p 252] nature of interest. There is no reason why an immaterial, intangible interest, particularly one inspired by the lofty humanitarian idea of a "sacred trust of civilization" cannot be called "interest".

In short, the interest possessed by the member States of the League as its Members is corporate and, at the same time, idealistic. However, this does not prevent it from being "interest".

The interest which the member States of the League possess regarding the proper administration of the mandated territory by the Mandatory is possessed by Members of the League individually, but it is vested with a corporate character. Each Member of the League has this kind of interest as a Member of the League, that is to say, in the capacity of an organ of the League which is destined to carry out a function of the League.

The question is, whether this kind of interest can be called "legal interest", and whether law recognizes it as such.

The historical development of law demonstrates the continual process of the cultural enrichment of the legal order by taking into consideration values or interests which had previously been excluded from the sphere of law. In particular, the extension of the object of rights to cultural, and therefore intangible, matters and the legalization of social justice and of humanitarian ideas which cannot be separated from the gradual realization of world peace, are worthy of our attention.

The fact that international law has long recognized that States may have legal interests in matters which do not affect their financial, economic, or other "material" or so-called "physical" or "tangible" interests was exhaustively pointed out by Judge Jessup in his separate opinion in the South West Africa cases, 1962 Judgment (I.C.J. Reports 1962, pp. 425-428). As outstanding examples of the recognition of the legal interests of States in general humanitarian causes, the international efforts to suppress the slave trade, the minorities treaties, the Genocide Convention and the Constitution of the International Labour Organisation are cited.

We consider that in these treaties and organizations common and humanitarian interests are incorporated. By being given organizational form, these interests take the nature of "legal interest" and require to be protected by specific procedural means.

The mandates system which was created under the League, presents itself as nothing other than an historical manifestation of the trend of thought which contributed to establish the above-mentioned treaties and organizations. The mandates system as a whole, by incorporating humanitarian and other interests, can be said to be a "legal interest".

However, what is in question is not whether the Mandate is a legal interest or not. What we are considering is not legal interest in itself, [p 253] but its relationship with persons who possess it, that is to say, the question of the existence of a legal interest as a condition on which the Applicants, as Members of the League, possess the right to have recourse to the International Court.

Each member of a human society—whether domestic or international —is interested in the realization of social justice and humanitarian ideas. The State which belongs as a member to an international organization incorporating such ideas must necessarily be interested. So far as the interest in this case affects the rights and obligations of a State, it may be called a legal interest. The State may become the subject or holder of a legal interest regarding social justice and humanitarian matters, but this interest includes its profound concern with the attitude of other States, particularly member States belonging to the same treaty or organization. In short, each State may possess a legal interest in the observance of the obligations by other States.

In the mechanism of the above-mentioned treaties and organizations, the procedural means to guarantee the observance are provided, although not in a uniform way, taking into consideration the difference in the objective and structure of each treaty and organization.

The question is whether under Article 7, paragraph 2, of the Mandate, the Applicants possess a right to have recourse to the Court by reason of a violation by the Respondent of certain conduct clauses provided by the Mandate, namely whether the Applicants have a legal interest in invoking the Court's jurisdiction concerning the obligations imposed on the Respondent by the conduct clauses.

One of the arguments in denial of the Applicants' legal interest in the Respondent's observance of the conduct clauses is that the Applicants do not suffer any injuries from non-observance of the conduct clauses. The Applicants, however, may not suffer any injuries in the sense that their own State interests or the interests of their nationals are injured. The injuries need not be physical and material, but may be psychological and immaterial, and this latter kind of injuries may exist for the Applicants in the case of non-observance by the Respondent of the conduct clauses.

The supreme objectives of the mandates system, namely the promotion of the well-being and social progress of the inhabitants of the Territory mentioned in Article 2, paragraph 2, of the Mandate, in spite of their highly abstract nature, cannot be denied the nature of a legal interest in which all Members of the League participate.

As we have seen above, there exist two categories of legal relationships in the mandates system from the viewpoint of the Members of the League: the one is its individual side and the other is its corporate side. [p 254]

Now, the existence of the corporate side in regard to the Mandate is in question.

One ground for denying to a Member of the League the right to have recourse to the International Court of Justice under Article 7, paragraph 2, of the Mandate, seems to be that this right, being of a public nature, cannot be exercised by a Member of the League. Only the League could possess such right and exercise it notwithstanding the fact that States only may become parties in cases before the Court. If a Member of the League exercises a right which should belong to the League as a whole, this would be nothing but an act ultra vires.

Here we must consider whether it is not legally impossible that in the case of an organization an individual member of it can act as an organ of the whole.

In the field of corporation law, such phenomena are highly developed. In some countries we find the institution of a representative suit by a shareholder against the administration. Each shareholder not only possesses individual rights in respect of dividends and rights to participate in the assembly and to vote, but can behave independently of the administration and of the assembly in bringing a law suit on behalf of the corporation. In this case, in the position of a shareholder, the corporate and individual elements are intermingled. As a result, even if a Member of the League has a right to have recourse to the International Court by virtue of Article 7, paragraph 2, on the ground of non-compliance by the Mandatory with the obligations of Article 2, paragraph 2, of the Mandate, it cannot be considered as unjuristic. In the present cases, the Applicants appear formally in an individual capacity as Members of the League, but they are acting substantially in a representative capacity. That not only the Council, but the Member States of the League are equally interested in the proper administration of the mandated territory, is quite natural and significant. In this respect, the individual Member States of the League penetrate the corporate veil of the League and function independently of the League.

There are two main reasonings upon which the Court's denial of the Applicants' legal right now appears to be based. The one is the juridical character and structure of the institution, the League of Nations, within the framework of which the mandates system is both created and enshrined. The League functions "through the instrumentality of an Assembly and a Council" and "no role was reserved either by the Covenant or the mandate instruments to individual members . ..".
We cannot deny that the League and the mandates system possess such structure that the member States as individuals are fundamentally excluded from participation in the functioning of the League and the mandates system and that rights cannot be derived from the mere fact of membership of the organization in itself. The question remains as [p 255] to whether the corporate structure of the League excludes the possibility that the mandate instrument may confer upon the individual member States the right to have recourse to the International Court on matters concerning the "conduct" clause. The answer depends upon the interpretation of Article 7, paragraph 2, of the Mandate.

The other reasoning is, that, in the Court's opinion, the Applicants do not possess a legal right directly or by a clearly necessary implication, through a substantive and not merely adjectival provision of the Mandate in the same way as they possess it by virtue of Article 5 of the Mandate which is concerned with the so-called "national rights" of the Member States. But in this case, whether a substantive right is conferred on member States by that provision or not, is highly doubtful.

It seems that by the effect of this provision the member States and their nationals are simply accorded an interest as beneficiaries in connection with the proper administration of the Mandate. This fact is clear from the first half of the said Article which is concerned with the guarantee of freedom of conscience and the free exercise of all forms of worship—matters which concern the inhabitants in general, and not only the member States.

Although Article 5 of the Mandate is partly concerned with the national interest of the member States of the League, the nature of this provision is not fundamentally different from that of the rest of the provisions of the Mandate. It possesses the same nature as the "conduct" clause. It does not confer upon the member States any substantive right. They receive only a certain benefit as a "reflective" effect of the mandate instrument, but not any right as an effect of an independent juridical act which does not exist.

Incidentally, Article 5 of the Mandate mentions "all missionaries, nationals of any State Member of the League of Nations". But this phrase does not mean that any member State possesses a right concerning its missionaries and nationals, because it is used simply to identify the missionaries and nationals. Whether the member States of the League possess the right of diplomatic protection is another matter.

Accordingly, the distinction between the "conduct" clause and the "national" clause is not an essential one. The latter must be considered as an integral part of the Mandatory's obligations which are derived from the objectives of the mandates system, namely the promotion of material and moral well-being and social progress. Whether some of the obligations are related to the interest of some of the member States of the League or not, is quite immaterial to the nature of Article 5 of the Mandate.

Therefore the classification of the mandate provisions into two categories, namely the conduct clause and the national clause is of secondary importance.

As to the argument that the substantive right of the Applicants must [p 256] be found, not in the jurisdictional, adjectival provision but in the substantive provision, we feel we should point out that in the Mandate the substantive and procedural elements are inseparably intermingled and that Article 7, paragraph 2, can confer substantive rights on the individual member States of the League. This conclusion must be justified, if we approve the above-mentioned viewpoint that Article 5 of the Mandate does not confer upon the member States of the League any substantive right. The source of their right cannot be sought elsewhere than in Article 7, paragraph 2, in connection with other provisions of the Mandate.

In this connection, we cannot overlook the dissenting opinions of Judges de Bustamante and Oda appended to the Judgment of the Mavrommatis Concessions case. Both emphasize what they consider as essential in the compromissory clause. Judge de Bustamante says:

"As the latter [the League of Nations] could not appear as a party to a dispute concerning the application or interpretation of the Mandate, having regard to the restrictive terms of Article 34 of the Court's Statute, it is the Members of the League who have been authorized, in their capacity as Members, to bring before the Court questions regarding the interpretation or application of the Mandate." (P.C.I.J., Series A, No. 2, p. 81.)

"Whenever Great Britain as Mandatory performs in Palestine under the Mandate acts of a general nature affecting the public interest, the Members of the League—from which she holds the Mandate—are entitled, provided that all other conditions are fulfilled, to have recourse to the Permanent Court. On the other hand, when Great Britain takes action affecting private interests and in respect of individuals and private companies in her capacity as the Administration of Palestine, there is no question of juridical relations between the Mandatory and the Members of the League from which she holds the Mandate, but of legal relations between third parties who have nothing to do with the Mandate itself from the standpoint of public law." (Ibid., pp. 81-82.)

Next, Judge Oda, pursuing the same idea more clearly, says:

"Since the Mandate establishes a special legal relationship, it is natural that the League of Nations, which issued the Mandate, should have rights of supervision as regards the Mandatory. Under the Mandate, in addition to the direct supervision of the Council of the League of Nations (Articles 24 and 25) provision is made for indirect supervision by the Court; but the latter may only be exercised at the request of a Member of the League of Nations (Article 26). It is therefore to be supposed that an application by such a Member must be made exclusively with a view to the protection of general interests and that it is not admissible for a state [p 257] simply to substitute itself for a private person in order to assert his private claims." (Ibid., p. 86).

Although these views of the two dissenting Judges have remained minority opinions on this matter and were recently criticized by Judge Winiarski (dissenting opinion in South West Africa cases, I.C.J. Reports 1962, pp. 450, 451), we cannot fail to attach importance to the fact that, shortly after the inception of the mandates system, such opinions even if they were minority, existed.

Another strong argument raised by Judges Sir Percy Spender and Sir Gerald Fitzmaurice in the joint dissenting opinion to the 1962 Judgment (I.C.J. Reports 1962, pp. 552, 553), against the admissibility of the Applicants' claim is related to the character of interest which, it is contended, does not allow a settlement to be achieved. The arguments are related to the question of competence with regard to settlement.

The dispute within the meaning of Article 7, paragraph 2, must be one which cannot be settled by negotiation.

Well, in the present cases, the dispute in which the interest is incorporated is of a humanitarian character which does not appear to be compatible with the possibility of settlement by negotiation. It will furnish a strong reason to support the argument denying the admissibility of the claim in the present cases, because the law suit is in some sense an act of disposal of interest and, in this case, the dispute is mainly concerned with fundamental human rights which are called inalienable.

The joint dissenting opinion (ibid., p. 551), denies the possibility of settlement of the dispute by negotiation inter se—namely between the Applicant and Respondent States. The reason seems to be based, on the one hand on the nature of the dispute which does not relate to their own State interests or those of their nationals, but belongs to the "conduct of the Mandate" type—the "sacred trust"; on the other hand, on the incapability of any settlement negotiated between single States, such as the Applicant States and the Mandatory.

The inherent incapability of settlement of subject-matter such as the sacred trust, to be settled by negotiation, however, does not exclude the possibility of compromise concerning detailed policies and measures in order to implement the fundamental principles of the Mandate. Implementation is essentially a matter of degree and is therefore susceptible of compromise. Accordingly, we cannot consider that the nature of a dispute which is concerned with the sacred trust is incompatible with settlement by negotiation.

The question of competence to settle by negotiation must be decided from the point of view that the Applicants as Members of the League individually and at the same time as its organ possess a legal interest in the realization of the sacred trust and therefore competence to settle the dispute by negotiation. [p 258]

It may reasonably be feared that, if each individual Member of the League possesses a right to institute proceedings against the Mandatory by reason of non-compliance with the conduct clauses, repetitious suits against the Mandatory would arise, procedural chaos would prevail and the legal situation of the Mandatory would be highly precarious.

In circumstances in which the binding power, erga omnes effect, of a decision of this category is lacking, one is obliged to rely solely upon the possibility of intervention (Articles 62, 63 of the Statute), the wisdom of the Court and the common-sense of those concerned until legislative arrangement and adjustment will be made to attain uniformity of decision. These possible abnormalities, arising from the defect of the machinery, however, should not be a reason for denying a right to have recourse to the International Court by reason of non-compliance by the Mandatory of the conduct clauses of the Mandate.

As we have seen above, the interests involved in the mandates system are multiple. The Applicants in their capacity as Members of the League possess a legal interest in compliance by the Respondent with the obligations imposed by the conduct clauses of the Mandate. The Applicants, on the other side, can have individual interests which are classified in two categories: on the one hand, State interests and on the other, the interests of their own nationals. Although these interests may exist in connection with the administration of the Mandate, they are only incidental to the mandates system. Far more important are the general interests which are inherent in the Mandate itself and which cannot be ignored in the interpretation of the compromissory clause in the Mandate.

As we have seen above, it is argued that the supervision of the Mandate belongs to the Council of the League and to this body only, not to individual Members of the League; therefore they possess no right to invoke the Court's jurisdiction in matters concerning the general ad-ministration of the Mandate, nor does the Court possess power to adjudicate on such matters.

However, the existence of the Council as a supervisory organ of the Mandate cannot be considered as contradictory to the existence of the Court as an organ of judicial protection of the Mandate. The former, being in charge of the policies and administration of the Mandatory and the latter, being in charge of the legal aspects of the Mandate, they cannot be substituted the one for the other and their activities need not necessarily overlap or contradict one another. They belong to different planes. The one cannot be regarded as exercising appellate jurisdiction over the other.

As long as the compromissory clause is adopted in a mandate agreement and the scope and limit of its application are by reason of the vagueness of the terms of the provision not clear, it is quite natural [p 259] that we should seek the just criterion of interpretation in the principle of the Mandate, that the well-being and development of peoples not yet able to stand by themselves form a sacred trust of civilization. This principle presents itself as a criterion of interpretation of the provisions of the Mandate including Article 7, paragraph 2. Such is the conclusion of a teleological interpretation of Article 7, paragraph 2, of the Mandate. Article 7, paragraph 2, does not specify the dispute; it says, "any dispute whatever". The dispute may relate to the interpretation or the application of the "provisions" of the Mandate. There is no reason for concluding that this dispute should be limited to the kinds of dispute involving the individual interests of the member States of the League and that the provisions should mean only those which protect such kinds of interest.

The above-mentioned conclusion is precisely in conformity with a literal interpretation of Article 7, paragraph 2, namely the "natural and ordinary meaning" of the terms of its text.

In sum, Article 7, paragraph 2, as the means of judicial protection of the Mandate cannot be interpreted in such a way that it ignores the most fundamental and essential obligations of the Mandatory to carry out the "sacred trust" and excludes the "conduct clauses" from the "provisions" to which Article 7, paragraph 2, shall be applied. We must not lose sight of what is essential in the face of what is incidental.

For the above-mentioned reasons, we consider that the Applicants are entitled to have recourse to the International Court of Justice, because our view is that the present dispute, involving a legal interest of the Applicants, falls within the scope and limit of the application of Article 7, paragraph 2, of the Mandate. Accordingly, we are unable to concur in the Court's opinion that the Applicants' claims are, on the ground of the lack of any legal right or interest, to be rejected.

II

Before going into the examination on the merits of the present cases, we are confronted with a preliminary question concerning the res judicata which shall be recognized or denied to the Court's foregoing decisions on identical matters.
The first question which we must decide at the stage of the merits, is the question of the existence or otherwise of the Mandate after the dissolution of the League. This question is, without doubt, the core of the present cases in the sense that whole obligations and rights of the Respondent as Mandatory depend on the solution of this question.

This question has been envisaged by the Court twice. The Advisory Opinion of 11 July 1950 denied the annihilative effect of the dissolution of the League and recognized the continuance of the obligations of the [p 260] Respondent under the Mandate. Next, in the preliminary objections stage of the present cases the Respondent's first preliminary objection was the denial to the Mandate of the character of "a treaty or convention in force" within the meaning of Article 37 of the Statute, an argument based on the doctrine of the lapse of the Mandate automatically caused by the dissolution of the League. This objection, however, was dismissed by the Judgment of 1962.

The effect of the dissolution of the League upon the survival of the Mandate is questioned for the third time in the proceedings on the merits of the present cases.

Before we go into the examination of the issue of the survival or otherwise of the Mandate, we must solve a question concerning the effect of the Court's Advisory Opinion in 1950 and the decision of the Court in 1962. If the Court's finding of 1950 or the decision of 1962 establish any res judicata the examination de novo of this issue would become as a whole or partially impermissible or at least superfluous.

Firstly, concerning the Advisory Opinion of 1950, it has no binding force upon those concerned, namely no res judicata results from an advisory opinion for the purposes of subsequent litigation, even if the issue is identical. This point constitutes a difference between advisory and contentious proceedings. The structure of the proceedings is not the same, and the concept of parties in the same sense as in the latter does not exist in the former. This legal nature of an advisory opinion does not prevent that, as an authoritative pronouncement of what the law is, its content will have an influence upon the Court's decision on the same legal issue, irrespective of whether or not this issue constitutes a part of a subsequent stage of the same affairs.

Judge Sir Hersch Lauterpacht expressed in a separate opinion his view that:

"The Opinion of 11 July 1950 has been accepted and approved by the General Assembly. Whatever may be its binding force as part of international law—a question upon which the Court need not express a view—it is the law recognized by the United Nations. It continues to be so although the Government of South Africa has declined to accept it as binding upon it and although it has acted in disregard of the international obligations as declared by the Court in that Opinion." (I.C.J. Reports 1956, pp. 46-47.)

The opinion of Judge Lauterpacht does not appear to attribute res judicata to the 1950 Opinion, but to recognize its authoritative meaning as to the interpretation of an issue of the same kind.

There is no doubt that—

". . . the International Court does not adhere to the doctrine of stare decisis; nevertheless it will not readily depart from a prior ruling, especially if the subsequent proceeding involves issues of fact and law identical in every respect to those in the prior proceeding". (Memorials, p. 97.) [p 261]

The advisory opinion has de facto authority upon which the Court may rely in deciding subsequent cases which are identical with it or which involve the same kind of issue.

Judge Winiarski stated:

"Opinions are not formally binding on States nor on the organ which requests them, they do not have the authority of res judicata; but the Court must, in view of its high mission, attribute to them great legal value and a moral authority." (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, I.C.J. Reports 1950, p. 91.)

Next, the decision of 1962 needs to be considered.

It may be thought that the Court's finding in the 1962 Judgment in favour of the survival of the Mandate would have the force of res judicata (Article 59 of the Statute), but that the effect of res judicata of this Judgment should be limited to the operative part of the Judgment and not extend to the reasons underlying it.

The effect of res judicata concerning a judgment on jurisdictional matters must be confined to the point of the existence or otherwise of the Court's jurisdiction. In case of an affirmative decision, the only effect is that the Court shall proceed to examine the question of the merits. To the preliminary stage must not be attached more meaning than this.

At the preliminary objection stage of the present cases the question of the survival of the Mandate was examined. But this examination was made from the viewpoint of Article 7, paragraph 2, of the Mandate and Article 37 of the Statute, i.e., mainly from the angle of the jurisdiction of the Court and more thorough and exhaustive investigations and arguments might be expected at the merits stage. Therefore, the Court's reasoning underlying its finding in the 1962 Judgment does not prohibit or make superfluous de novo arguments on the question of the survival or otherwise of the Mandate after the dissolution of the League. We could consider that the first preliminary objection which was linked with the question of the survival or otherwise of the Mandate could have been more appropriately joined to the merits.

This conclusion is justified by the distinction between preliminary objection proceedings and proceedings on the merits from the viewpoint of their objectives. What was decided in a finding in the preliminary objection proceedings as a basis of jurisdiction, must not be prejudicial to the decision on the merits, therefore may not have binding force vis-à-vis the parties; accordingly, in the present cases, it is permissible that the Respondent should deny and continue to deny the survival of the Mandate after the dissolution of the League, despite the fact that this issue was dealt with by the Court at the stage on jurisdiction, and despite the fact that the arguments might become repetitive.

Incidentally it should be indicated that the Applicants conceded that the 1950 Advisory Opinion was not binding upon the Respondent in the strict sense of res judicata, and that the Court's 1962 Judgment [p 262] related to the issue of competence and did not constitute an adjudication upon the merits of the dispute (Reply, p. 303).

Before going into an examination of the individual items of the Applicants' submissions, we must solve another question of a preliminary nature which is concerned with the matter of the scope and limit, freedom of expression for a dissenting judge. In the present cases, a question arises as to whether a dissenting judge is permitted to deal in his opinion with matters which are not included in the majority opinion, particularly questions regarding the alleged violations by the Respondent of the obligations under Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant, the policy of apartheid, Respondent's accountability to the United Nations, etc.

This question is concerned with the interpretation of Article 57 of the Statute. As regards this question, we must first consider it from a general point of view.

In countries where the institution of separate (concurring and dissenting) opinions is adopted, an individual judge is not absorbed in an anonymous majority even in the system where an incognito majority opinion is elaborated, but he can maintain his own individual viewpoint by appending a concurring opinion. The opinion of the majority is nothing but the common denominator among the opinions of judges who constitute the majority, but do not necessarily agree on the reasoning.

From what is indicated above, we may Say that the majority opinion presupposes the existence of diverse individual opinions which are common at least in the operative part of the decision, and that the free individual opinions of judges are logically foregoing to the majority opinion, notwithstanding the fact that the former may be gradually formulated during the process of the deliberations. Accordingly, we consider that the majority opinion cannot be conceived to establish any limits to the separate opinions of individual judges. The latter are perfectly independent of the former. This point must particularly be emphasized in the case of a dissenting opinion, because standing on a quite different footing from the majority opinion, its freedom must be greater.

Next, we shall consider this matter in the light of the present proceedings. The proceedings have gone through the preliminary objection stage and are at the stage of the merits. Now the Court has decided on the merits, but on a preliminary question of the legal interest leaving the rest of the questions on the merits undecided. The reason that the Court rejected the Applicants' claims, is the lack of their legal right or interest.

Disagreement between the dissenting view and the majority view is not limited to the matter of legal right or interest but it is concerned with the whole attitude vis-à-vis all questions on the merits. The dissenting judges are able to argue on the hypothesis that their contention regarding the existence of the Applicants' legal right or interest is well-founded. [p 263]

This position is not the same as the position of a dissenting judge in a decision rejecting an application by reason of the lack of the Court's jurisdiction, In that case the dissenting judge cannot deal with the matters on the merits on the hypothesis that his view is right, because the proceedings are limited to the preliminary objection and the proceedings on the merits have been suspended. The stage of the question of legal right or interest. however, does not constitute independent proceedings like preliminary objection proceedings, but is an integral part of the pro-ceedings on the merits. Therefore, this question has not been dealt with distinctly from other questions on the merits in the pleadings and oral arguments.

In short, for the foregoing reasons the majority opinion cannot place a limitation upon the separate and dissenting opinions; therefore judges are entitled to deal with all matters on the merits entirely irrespective of the content of the majority opinion.

***
The controversy between the Applicants and the Respondent on the survival of the Mandate was the starting point of the preliminary objection proceedings of the present cases; the same applies to the proceedings on the merits. All claims and complaints of the Applicants, being concerned with the interpretation and application of the Mandate, are based on the continual existence of the Mandate; consequently, if its existence could not be proved, they would necessarily fall away.

The Applicants' Final Submissions Nos. 1 and 2 deal with the matter of the survival of the Mandate. Submission No. 1 reads as follows:

"South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by His Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on December 17, 1920."

By Submission No. 1, the Applicants define the international status of the Territory of South West Africa and contend that this status is not merely an historical fact, but continues to the present time.

By Submission No. 2 the Applicants further contend the continuation of the international obligations of the Respondent as Mandatory. It reads as follows:

"Respondent continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and [p 264] in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and petitions are to be submitted."

The Respondent's final submissions (C.R. 65/95, pp. 53-54) which are the same as set forth in the Counter-Memorial, Book 1, page 6, and the Rejoinder, Volume II, page 483, particularly contend in regard to the question of the lapse or otherwise of the Mandate on the dissolution of the League as follows:

"1. That the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations, and that Respondent is, in consequence thereof, no longer subject to any legal obligations thereunder.

2. In the alternative to (1) above, and in the event of it being held that the Mandate as such continued in existence despite the dissolution of the League of Nations;

(a) Relative to Applicants' Submissions Nos. 2, 7 and 8,

that Respondent's former obligations under the Mandate to report and account to, and to submit to the supervision of, the Council of the League of Nations, lapsed upon the dissolution of the League .. .

(b) Relative to Applicants' Submissions Nos. 3, 4, 5, 6 and 9,

that Respondent has not, in any of the respects alleged, violated its obligations..."

***
To resolve the question of the lapse or otherwise of the Mandate on the dissolution of the League, some preliminary observations are required concerning the legal and social nature and characteristics of the mandates system.

The mandates system, established by the Covenant of the League of Nations, can be considered as an original method of administering certain underdeveloped overseas possessions which formerly belonged to States in the First World War. "The essential principles of the mandates system" says the 1962 Judgment in the South West Africa cases—

"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 [p 265] 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." (I.C.J. Reports 1962, p. 329.)

The idea that it belongs to the noble obligation of conquering powers to treat indigenous peoples of conquered territories and to promote their well-being has existed for many hundred years, at least since the era of Vitoria. But we had to wait for the Treaty of Peace with Germany, signed at Versailles in 1919, and the creation of the League of Nations for this idea to take the concrete form of an international institution, namely the mandates system, and to be realized by a large and complicated machinery of implementation. After the dissolution of the League the same idea and principles have been continued in the "International Trusteeship System" in the Charter of the United Nations.

The above-mentioned essential principles of the mandates system are important to decide the nature and characteristics of the Mandate as a legal institution.

Here, we are not going to construct a more-or-less perfect definition or concept of the Mandate. We must be satisfied to limit ourselves to the points of which clarification would be necessary or useful to decide the issue now in question.

The mandates system is from the viewpoint of its objectives, as well of its structure, highly complicated. Since its objectives are the promotion of the well-being and social progress of the inhabitants of certain territories as a sacred trust of civilization, its content and function are inti-mately related to almost all branches of the social and cultural aspects of human life. Politics, law, morality, religion, education, strategy, economy and history are intermingled with one another in inseparable complexity. From the point of view of the Court the question is how to draw the line of demarcation between what is law and what is extra-legal matter, particularly politics which must be kept outside of justiciability (we intend to deal with this question below).
The mandates system is from the structural viewpoint very complicated The parties to the Mandate, as a treaty or convention, are on the one side the League of Nations and on the other the Mandatory—in the present cases the Respondent. The latter accepted the Mandate in respect of the Territory of South West Africa "on behalf of the League of Nations". Besides these parties, there are persons who are connected with the Mandate in some way, particularly who collaborate in the establishment or the proper functioning of this system, such as the Principal Allied and Associated Powers, to which these territories had been ceded by the Peace Treaty, Members of the League, and those who are interested as beneficiaries, namely the inhabitants of the mandated territories. Whether or not, and to what degree the United Nations and [p 266] its Members can be considered as concerned, belongs to the matters which fall to be decided by the Court.

The Mandate, constituting an aggregate of the said diverse personal elements, as we have seen above, presents itself as a complex of many kinds of interests. The League and Mandatory, as parties to the Mandate, have a common interest in the proper performance of the provisions of the Mandate. The inhabitants of the mandated territories possess, as beneficiaries, a most vital interest in the performance of the Mandate.

The Mandatory does not exercise the rights of tutelage of peoples entrusted to it on behalf of itself, but on behalf of the League. The realization of the "sacred trust of civilization" is an interest of a public nature. The League is to serve as the existing political organ of the international community by guarding this kind of public interest.

The Mandate, being of the said personal and real structure, possesses in many points characteristics which distinguish it from other kinds of treaties.

Firstly, the Mandate is intended to establish between parties a certain legal relationship of which the aims and purposes are different from those we find in the case of commercial treaties in which two different kinds of operations stand reciprocally against each other and which are extinguished with simultaneous performance by the parties. They are a realization of identical aims, which is a "sacred trust of civilization". In this sense, the Mandate has characteristics similar to law-making treaties, defined by Oppenheim as those "concluded for the purpose of establishing new rules for the law of nations". (Quincy Wright, Mandates under the League of Nations, 1930, p. 357.)

What is intended by the parties of the mandate agreement as a "sacred trust of civilization" is the promotion of the material and moral well-being and social progress of the inhabitants of the territory who are "not yet able to stand by themselves under the strenuous conditions of the modern world".

The Mandate is a legal method or machinery for achieving the above-mentioned humanitarian purposes. Therefore, between the two parties to the mandate agreement there does not exist a fundamental conflict of interests or "exchange of balancing services" such as we recognize in synallagmatic contracts (cf. Judge Bustamante's separate opinion on South West Africa cases, I.C.J. Reports 1962, pp. 357 and 359) or contracts of the type do-ut-des. The mandate agreement can be characterized rather as a union of two unilateral declarations, the one by the League, the other by the Mandatory, a phenomenon which we find in cases of creation of partnerships or corporations. Incidentally, this conclusion, in our view, does not prevent the construction of the mandate agreement as a kind of treaty or convention.
This characteristic is clearly manifest in the fact that the League can be considered as a collaborator of the Mandatory by its power of super-[p 267] vision and an adviser in the performance of the obligations of the latter.

If we seek some type of legal concept analogous to the mandate agreement in the field of private law, we can mention the terms "man-datum", "tutelage" and "trust". These institutions possess some common elements with the mandates system, although the principles governing the latter cannot be exhaustively explained by those governing the former. The point which we indicated above, namely the identity of aims between the parties, exists in the case of guardianship, tutelage and trust.

Secondly, the long-term nature of the mandate agreement is what characterizes it from the other contracts. This character derives from the nature of the purposes of the mandates system, namely the promotion of material and moral well-being and social progress of the mandated territories, which cannot be realized instantaneously or within a foreseeable space of time.

Thirdly, the mandate agreement requires from the Mandatory a strong sense of moral conscience in fulfilling its responsibility as is required in the case of guardianship, tutelage and trust. "The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory ..." The obligations incumbent upon the Mandatory are of an ethical nature, therefore unlimited. The mandate agreement is of the nature of a bona fide con-tract. For its performance the utmost wisdom and delicacy are required.

From what is indicated above, it follows that, although the Mandatory is conferred "full power of administration and legislation over the territory", the weight of the mandates system shall be put on the obligations of the Mandatory rather than on its rights.

The 1962 Judgment, clarifying this characteristic of the mandates system, declares as follows:

"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." (I.C.J. Reports 1962, p. 329.)

Judge Bustamante emphasized very appropriately (ibid., p. 357) the more important aspect of responsibility rather than of rights regarding the function of the Mandatory. The Mandatory must exercise its power only for the purpose of realizing the well-being and progress of the inhabitants of the territory and not for the purpose of serving its egoistic ends. As Professor Quincy Wright puts it, "it has been recognized that the conception of mandates in the Covenant requires that the Mandatory receive no direct profit from its administration of the territory". This is called the "principle of gratuitous administration" (Quincy Wright, op. cit., pp. 452-453).

From the nature and characteristics of the mandates system and the mandate agreement, indicated above, we can conclude that, although the existence of contractual elements in the Mandate cannot be denied, the institutional elements predominate over the former. We cannot [p 268] explain all the contents and functions of the mandates system from the contractual, namely the individualistic, and subjective viewpoint, but we are required to consider them from the institutional, namely collectivistic, and objective viewpoint also. This latter viewpoint is, ac-cording to Lord McNair, that of—

"... certain rights of possession and government (administrative and legislative) which are valid in rem—erga omnes, that is against the whole world, or at any rate against every State which was a Member of the League or in any other way recognized the Mandate". (I.C.J. Reports 1950, p. 156.)

From the purely contractual and individualistic viewpoint the Mandate would be a personal relationship between the two parties, the existence of which depends upon the continuance of the same parties. For instance, a mandate contract in private law lapses by reason of the death of the mandator. But the international mandate does not remain, as we have seen above, purely a relationship, but an objective institution, in which several kinds of interests and values are incorporated and which maintains independent existence against third parties. The Mandate, as an institution, being deprived of personal character, must be placed outside of the free disposal of the original parties, because its content includes a humanitarian value, namely the promotion of the material and moral well-being of the inhabitants of the territories. Therefore, there shall exist a certain limitation, derived from the characteristics of the Mandate, upon the possibility of modification for which the consent of the Council of the League of Nations is required (Article 7, paragraph 1, of the Mandate).

***
We shall now envisage the question whether, despite the dissolution of the League of Nations the Mandate for South West Africa still exists, and if so, whether the supervisory function of the League has passed to the United Nations.

Let us consider, firstly, the question whether the Mandate still exists despite the dissolution of the League.

The solution of this question may depend upon the question of the essentiality or otherwise of the supervision of the Mandate, but it can be answered independently of the latter, because if the Mandate as a whole lapsed for some other reasons; there would be no question of its supervision. The question of supervision presupposes the prima facie continued existence of the Mandate. That is why this matter was dealt with in detail in the 1950 Advisory Opinion and discussed at length in the preliminary objection stage of the present cases in connection with the survival of Article 7, paragraph 2, of the Mandate, which is concerned with judicial supervision. Because we can, in the main, agree with what was decided by the Court in 1950 and 1962, we need not go into the [p 269] details of the question. We are satisfied to state simply the reasons why we agree with the decisions of the Court.

The controversy concerning the survival or lapse of the Mandate on the dissolution of the League, and accordingly of rights and obligations created by it, may be, in its final instance, attributed to the fundamental difference of methods existing in regard to the interpretation of law, namely the antagonism between voluntarism and objectivism. Controversies present themselves as to whether law cannot attribute certain effects to a treaty or a convention—which the parties did not or could not foresee at the moment of its inception—or whether law, on the contrary through its interpretation may be expected to play the function of filling the lacuna of juridical acts by creating certain legal effects uncovered by the original intent of the parties.

From the point of view of purely juridical formalism, there is the conclusion that, so far as the Mandate is conceived as a contract between the two parties, namely the League of Nations on the one hand and the Mandatory on the other, the dissolution of the League would produce, as a necessary consequence, the absolute extinction of the Mandate with all its legal vincula and that nothing remains thereafter. This is the fundamental standpoint upon which the arguments of the Respondent are based. This pure logicism is combined with strict voluntarism according to which all legal consequences attached to a juridical act are conceived as the effect of the will or intent of the parties. This is the reason why the Respondent, since the preliminary objections stage, has, concerning the interpretation of the Mandate, consistently attached importance to the question of joint or common intent of the parties, and why the Respondent has repeatedly invoked the "crucial new facts" to refute the conclusion of the Advisory Opinion of 1950, which recognized the transfer of international supervision from the League of Nations to the United Nations.

It seems that the Respondent, analysing the Opinion, and assuming that its conclusion of the transfer of the obligations is based on the tacit consent of the parties, believes it has found a clue to re-examine and reverse the 1950 Advisory Opinion by the presentation of the "crucial new facts". The essential viewpoint of the Opinion, however, is based on the idea of "international institution with international object—a sacred trust of civilization", not much on consensual elements.

In accordance with the above analysis, we must attach more importance to the institutional side of the Mandate, which, according to Lord McNair, is "valid in rem—erga omnes". The 1950 Opinion says "the object of the Mandate regulated by international rules far exceeded that of contractual relations regulated by national law" (I.C.J. Reports 1950, p. 132). The Mandate as an institution is the starting point of the Opinion and the most influential reason to justify the survival of the Mandate notwithstanding the dissolution of the League. [p 270]

The vital interests of the inhabitants of the mandated territories, being of primary importance, require that the Mandate shall not be affected by the vicissitudes of international circumstances. In a mandate, the matter of who the mandator is not so important as who is the mandatory. The position of mandatory, different from that of mandator, for the reasons of special obligations which are incumbent upon him, is highly personal and unable to be substituted by any other persons. From the standpoint of the inhabitants, therefore, whether the mandate is established on behalf of the League or whether it exists on behalf of the United Nations is quite immaterial.

As a theoretical construction, the concept of the "organized international community" may be referred to in order to explain the legal position of the mandatory. The mandatory owes obligations on behalf of the League, but in the formal sense. Substantively, the mandatory is responsible to an international entity which underlies the League as a sociological reality, namely the organized international community, which was represented by the League, and, after its dissolution, has been represented by the United Nations. In short, we may conceive that, after the dissolution of the League, the mandatory continues to have obligations in relation to an impersonal entity, namely the organized international community as before, which is personified as the United Nations.

The only important matter is that a "sacred trust of civilization" is conscientiously carried out by the mandatories. The mandate, inspired by the spirit of a "sacred trust of civilization", once created by an international agreement between the two parties, the League on the one hand and the mandatory on the other, enjoys its perpetual objective existence. The continual existence of the organized international community guarantees the objectivity and perpetuity of the mandate as an international institution.
Lord McNair described this very appropriately in his separate opinion—

".. . the Mandate created a status for South-West Africa. This fact is important in assessing the effect of the dissolution of the League. This status—valid in rem—supplies the element of permanence which would enable the legal condition of the Territory to survive the disappearance of the League, even if there were no surviving personal obligations between the Union and other former Members of the League. 'Real' rights created by an international agreement have a greater degree of permanence than personal rights . . ." (I.C.J. Reports 1950, pp. 156-157.)

The Mandate, being an institution, incorporates the above-mentioned [p 271] several interests and values. It is a social organism and as such must be maintained and protected.

In general, once condensed and conglomerated, social energies under juridical techniques, such as a juridical person', partnership, Company, etc., cannot easily be dismembered and disorganized by some external or internal event. To avoid the loss of social and economic energies and values of an enterprise which would be caused by liquidation, the law establishes an institution of amalgamation or fusion which has an effect analogous to universal succession in the case of a physical person. This principle is the "Erhaltung des Unternehmens" (maintenance of enterprise) as put forward by Rudolf Müller-Erzbach, which, according to him is one of the important principles of commercial law (Die Erhaltung des Unternehmens, Z.f. Handelsr., Vol. 61, 1911, pp. 530 ff.; Deutsches Handelsrecht, 2nd ed., 1927, pp. 71 ff.). The application of this idea is not limited to matters of commercial law, but may be extended to other social entities.

In short, the Mandate as a social entity must be maintained and protected. From this viewpoint, we consider the Mandate does not lapse; it continues to function. The existence of the League of Nations itself is immaterial to the existence of the Mandate, on behalf of whom the Mandate is carried out, apart from the question of supervision which is dealt with below.

Moreover, under the hypothesis of the lapse of the Mandate caused by the dissolution of the League, it cannot be asserted that the Mandate suddenly ceased to exist at the moment of the dissolution of the League. For the purpose of carrying out the liquidation of an entity the continued existence of some of the functions is recognized by the law of both Anglo-American as well as civil law countries (Observations, p. 447). Both the defunct entities, the League and the Mandate, maintain their de facto existence. From the viewpoint of the League, it is to be conceived that its responsibilities concerning the Mandate still survive until its future status is definitively established (for instance, the conclusion of a trusteeship agreement); parallel with this, the continued existence of the Mandate can be recognized for the same space of time.

In short, the doctrine of "carry-over" referred to by the Applicants is a logical consequence of the aforesaid argument of the Mandate as an institution. It may assist the Applicants' cases in a supplementary way.

The above-mentioned conclusions may coincide with what the parties to the mandate agreement or those concerned with it really intended, or they may not be necessarily so. The tacit intent of parties which is referred to by the Applicants, if it is proved, may serve as a corroborating ground to reach the same conclusion. But the Court will establish its [p 272] conclusion on the theoretical basis independently of the psychological intents of the parties or those concerned, which do not necessarily coincide and from which it is not easy to derive any definite conclusion, be it positive or negative. In this sense, the Court's reference (I.C.J. Reports 1950, p. 134; ibid., 1962, p. 340) to the resolution of the League of Nations of 18 April 1946, which said, inter alia:

"4. Takes note of the expressed intention of the Members of the League now administering territories under Mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective Mandates, until other arrangements have been agreed between the United Nations and the respective mandatory",

is to be considered as possessing only subsidiary significance in the reasoning of the Court.

***
What is stated above is concerned with the survival of the Mandate despite the dissolution of the League. We have arrived at the affirmative conclusion, like the 1950 Advisory Opinion, but apart from the question of international supervision of the Mandatory. We are required to re-examine the issue in the light of international supervision, because even if the survival of the Mandate can be recognized in general, it may be denied in certain respects.

From the viewpoint of the Respondent, the international supervision to which the Mandatory was subjected fell away with the disappearance of the League, because the supervisory organ also disappeared with the League, without being validly replaced by a corresponding organ of the United Nations. The Respondent's argument is based upon the viewpoint that the international supervision under the League cannot be replaced by the United Nations, because this supervision does not mean international supervision in abstracto but means supervision by a specific organ of the League only.

The 1950 Opinion recognizes that the obligations of the Mandatory to submit to international supervision survive with the Mandate and that the supervisory function is exercised by the organ of the United Nations. The Opinion rules as follows:

"The necessity for supervision continues to exist despite the disappearance of the supervisory organ under the Mandates System. It cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist, when the United Nations has another international organ [p 273] performing similar, though not identical, supervisory functions." (I.C.J. Reports 1950, p. 136.)

The fundamental viewpoint of the Advisory Opinion is the recognition of the non-severability of the obligations of the Mandatory to submit to international supervision from its authority to administer the mandated territory. This viewpoint can be maintained for the following reasons:

1. Continuous international supervision is required from the essence of the mandates system. As the interests involved in the Mandate are of a humanitarian and important nature, and as the power conferred upon the mandatories is very extensive and mandatories possess wide discretionary power (cf. Article 2, paragraph 1, of the Mandate) as indicated below, the performance of obligations incumbent upon mandatories cannot be unrestricted and unsupervised and left only to the bona fide of mandatories. The mandatories possess no sovereignty over the territories, but they have conferred on them very broad discretionary powers in the administration of the mandated territories. Therefore, without some kind of supervision the attainment of the aim and purpose of the mandates system must be illusory. The mechanism of effective supervision is the necessity to prevent this system from becoming simple lex imperfecta or the abuse of power. This mechanism constitutes an integral part of the mandates system as a social institution, a social organism. Therefore, the contention of severability of the Respondent is illogical.

2. The rights of tutelage of mandated areas are exercised by mandatories but they are exercised on behalf of the League. They have no sovereign powers; they are responsible to the League for the execution of the term of the mandate (Quincy Wright, op. cit., p. 22). In this case the League must have supervisory power as a guardian of public interest of the organized international community of which the League constitutes the organ.

3. The mandates system is generally recognized as a product of compromise, at the period of its inception, between two principles: annexation and internationalization. The principle of international supervision by the League can be conceived as a product of compromise between the two extremes. So long as the mandate survives, international supervision as a factor of compromise must be continued by some possible means to prevent the mandate from being transformed into a kind of annexation.

4. The Respondent, while denying its obligations to submit to supervision, insists on preserving its rights or authority to administer the Territory. It seems that the Respondent recognizes the severability of its rights from its obligations, an attitude which is not in conformity with the spirit of the mandates system. The 19.50 Opinion declares: [p 274]

"The authority which the Union Government exercises over the Territory is based on the Mandate. If the Mandate lapsed, as the Union Government contends, the latter's authority would equally have lapsed. To retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified." (Ibid., p. 133.)

The Respondent cannot properly defend itself against the Applicants' argument criticizing its attitude as the "doctrine of partial lapse".

***
The survival of the Mandate as an institution, on the one hand, requires, on the other hand, an international supervision because supervision is essential to the proper functioning of the mandates system. The question is whether the mechanism of international supervision which existed under the League disappeared with its dissolution, not being replaced by a similar mechanism. In the case of an affirmative answer, the Mandate being paralysed, its proper administration would become impossible and it would be highly undesirable from the viewpoint of the well-being and progress of the inhabitants of the Territory.

Fortunately, the problem of supervisory mechanism for the existing Mandate is solved by the unforeseeable appearance of an international organization, namely the United Nations which, in so far as the main purposes are concerned, i.e., the maintenance of international peace and security and the realization of humanitarian ideas, possesses a high degree of similarity and homogeneity with the League of Nations. Furthermore, we can assert that the United Nations constitutes a more advanced form of international organization from several viewpoints, namely scope and extension of the organized international community, its organization and functions. The same can be said about the two systems—trusteeship under the United Nations and the mandate under the League of Nations. So far as a "sacred trust of civilisation" regarding territories whose peoples have not yet attained a full measure of self-government is concerned, the international trusteeship system is established under the United Nations. This system can be said to be the more advanced continuation of the mandates system under the League of Nations.

Therefore, it is not very unnatural and unreasonable to recognize in the United Nations and the trusteeship system the successor of the League and the mandates system respectively.

Nevertheless, we cannot recognize universal succession in the juridical sense in these cases. Universal succession between the two entities, namely the League and the United Nations did not occur. Neither can the application of the provisions of the trusteeship system on the Mandate be recognized without the conclusion of a trusteeship agreement. But nobody would wonder that the Mandatory's power once exercised on [p 275] behalf of the League, from the necessity of circumstances, becomes exercised on behalf of the United Nations, and consequently that international supervisory power, once belonging to the League, now belongs to the United Nations. The acceptance of this power and with it the responsibility by the United Nations does not appear to constitute ultra vires because the matter concerning the tutelage of backward peoples without doubt lies within the scope and limit of the objectives of the United Nations.

Neither is the replacement of the supervision by the League by that of the United Nations detrimental to the Mandatory. The Respondent invokes the difference between the way of supervision under the League and that under the United Nations, namely the different composition between the Permanent Mandates Commission and the Trusteeship Council—composition by political elements or experts—and the difference in the voting method as between the Council of the League and the General Assembly, that is, the unanimity or majority rule.

The last-mentioned points cannot be recognized in themselves as an onerous burden imposed on the Respondent; the difference of the method of composition as well as the voting method may affect in both a favourable and unfavourable way. The absence of precise identity between the two supervisory mechanisms cannot be considered as a reason for denying the supervision itself.
As the mechanism of implementation of international supervision, the majority opinion of 1950 refers to the United Nations as its organ (I.C.J. Reports 1950, pp. 136-137) contrary to the views of Lord McNair (ibid., pp. 159-160) and Judge Read (ibid., pp. 166-169). This conclusion cannot be derived from the express or tacit intent of the parties to the mandate agreement and those concerned, because at the period of the inception of the Mandate an event such as the dissolution of the League surely could not be foreseen by them, and because the intention of the parties and those concerned, and the surrounding circumstances at the period of the dissolution of the League are susceptible of diverse interpretations. There was a lacuna in the mandate agreement which should be filled by the theoretical or logical interpretation by the Court.

The replacement of the League as a supervisory organ by the United Nations is not normal; it is an exceptional phenomenon of the transitional period which was produced by the non-conclusion of a trusteeship agreement by the Respondent. What the Charter provided for the future of existing mandates was the conclusion of trusteeship agreements which, according to the majority opinion of 1950, the Respondent as Mandatory was not legally obliged, but expected, to make.

The attitude of the Respondent that, on the one hand, it did not enter into the trusteeship agreement which it would normally have been expected under the Charter to conclude and that, on the other hand. [p 276] it refuses to submit to international supervision because of the difference of the mechanism of its implementation, is contrary to the spirit of the Mandate and the Charter and cannot be justified.

In short, the maintenance and continuation of international supervision by the United Nations is derived from the nature of the Mandate as an international institution aimed at the promotion of the material and moral well-being and social progress of the inhabitants of territories and independent of and notwithstanding its contractual origin. The Mandate survives independently of the League and the necessity for the supervision remains with the Mandate—this necessity being satisfied by the United Nations as the above-cited 1950 Opinion points out.

***
We have reached an affirmative conclusion as to the survival of the Mandate as an international institution despite the dissolution of the League. This conclusion was reached by the 1950 Advisory Opinion and approved by the 1962 Judgment. Apart from the doctrinal basis of this proposition, the continual existence of the Mandate as an institution, notwithstanding the dissolution of the League, is admitted even by the Respondent. From the Respondent's standpoint the denial of the existence of the Mandate would mean denial of its rights to administer the mandated territory also.

The recognition of the institutional side of the Mandate beside its contractual side by the 1950 Advisory Opinion and the 1962 Judgment can confer on the mandates system a durability beyond the life of the League and an objective existence independent of the original or ulterior intent of the parties. This recognition is nothing else but a product of a scientific method of interpretation of the mandates system, in which the consideration of spirit and objectives as well as social reality of this system play important roles. This method of interpretation may be called sociological or teleological, in contrast with strict juristic formalism. Relying on the concept of the Mandate as an institution of a sociological nature, we take a step forward out of traditional conceptional jurisprudence, which would easily assert the lapse of the Mandate on the dissolution of the League.

What has been said about the question of the survival of the Mandate can be applied to the continuation of international supervision and the replacement by the United Nations of the Council of the League. The solution of the latter question is to be found in the same direction as the former. The continuation of international supervision of the Mandate by the United Nations is a logical conclusion of the survival of the Mandate as an international institution.

It is argued that the Court's Opinion on the existence of international supervision, namely the Respondent's accountability to the United Nations, is based on the doctrine of "necessity", and that the [p 277] Court cannot exceed the limitation incumbent upon it as a court of law.

Undoubtedly a court of law declares what is the law, but does not legislate. In reality, however, where the borderline can be drawn is a very delicate and difficult matter. Of course, judges declare the law, but they do not function automatically. We cannot deny the possibility of some degree of creative element in their judicial activities. What is not permitted to judges, is to establish law independently of an existing legal system, institution or norm. What is permitted to them is to declare what can be logically inferred from the raison d'être of a legal system, legal institution or norm. In the latter case the lacuna in the intent of legislation or parties can be filled.
So far as the continuance of international supervision is concerned, the above-mentioned conclusion cannot be criticized as exceeding the function of the Court to interpret law. The Court's Opinion of 1950 on this question is not creating law simply for the reason of necessity or desirability without being founded in law and fact. The survival of the Mandate despite the dissolution of the League, the importance of international supervision in the mandates system, the appearance of the United Nations which, as the organized international community, it characterized by political and social homogeneity with the defunct League of Nations, particularly in respect of the "sacred trust" for peoples who have not yet attained a full measure of self-government, and the establishment of the international trusteeship system, the Res-pondent's membership in the United Nations, and, finally, the refusal by the Respondent to conclude a trusteeship agreement as expected by the Charter: these factors, individually and as a whole, are enough to establish the continuation of international supervision by the United Nations.

Consideration of the necessity that the paralysis of mandate without supervision must be avoided, can by no means be denied. But we are not going to deduce the above-mentioned conclusion from mere necessity or desirability but from the raison d'être and the theoretical construction of the mandates system as a whole.

We, therefore, must recognize that social and individual necessity constitutes one of the guiding factors for the development of law by the way of interpretation as well as legislation. The principle of effectiveness often referred to, may be applied to explain the viewpoint of the "necessity" argument of the 1950 Advisory Opinion recognizing the continued existence of the Mandate as well as international supervision (cf. Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, pp. 277-280).

In this case, we cannot deny that the necessity created the law independently of the will of the parties and those concerned. The explanation by the reasonably assumed intention of the parties (Oppenheim-Lauterpacht, International Law, Vol. 1, 8th ed., p. 168) seems a compromise [p 278] with voluntarism. "The reasonably assumed intention" is not identical with the psychological intention which very probably did not exist. The former shall be assumed by the Court taking into consideration all legal and extra-legal factors, from which the "necessity" is not excluded. These kinds of activities of judges are not very far from those of legislators.

In parentheses, although the Court does not possess the power to decide a case ex aequo et bono without the parties' agreement (Article 38, paragraph 2, of the Statute), the result of the interpretation mentioned above can satisfy the requirement of justice and good sense. The contrary solution shall be striking to most of those concerned and the public at large.

Such attitude of interpretation has been known as a method of "libre recherche scientifique" or "Freirecht", mainly in civil-law countries for three-quarters of a century as emancipating judges from the rigid interpretation of written laws and emphasizing the creative role in their judicial activities. There is no reason to believe that the same method should be denied in the field of international law except the opposing tendency of strong voluntarism derived from the concept of sovereignty and not being in conformity with the concept of law which attributes to law an objective and independent existence from the will and intention of those to whom law is addressed.

In short the difference of opinions on the questions before us is in the final instance attributed to the difference between two methods of interpretation: teleological or sociological and conceptional or formalistic.

***
For the above-mentioned reasons (1) South West Africa is a territory under the Mandate, and (2) Respondent continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa, the supervisory functions to be exercised by the United Nations, to which the annual reports are to be submitted. (As to the obligation to transmit petitions mentioned in the Applicants' Submission No. 2, we will deal with it below.) So far as these matters are concerned, the Applicants' Submissions Nos. 1 and 2 are well-founded.

III

Now we must proceed to examine the Applicants' Final Submissions Nos. 3 and 4, which constitute the core of the present cases in the sense that they are concerned with the fundamental obligations stipulated in Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant of the League of Nations.

The submissions presented to the Court by the Applicants in the [p 279] Memorials, supplemented in the Reply and amended during the oral proceedings on 19 May 1965, are concerned with the complaints raised against the Respondent as the Mandatory of the Territory of South West Africa; they are fundamentally concerned with the allegations by the Applicants that the Respondent has violated the obligations incumbent upon it by Article 22 of the Covenant of the League of Nations and by the Mandate for South West Africa.

Although the submissions of Applicants include multiple obligations resulting from the various provisions of the Covenant and the Mandate, i.e., Article 2, paragraph 2, Articles 4, 6 and 7, paragraph 1, the main legal questions involved in the present cases are undoubtedly those concerning the obligations of the Respondent as the Mandatory stipulated in Article 2, paragraph 2, of the Mandate: obligations to "promote to the utmost the material and moral well-being and the social progress of the inhabitants of the Territory".

In the following statement of Our view, we consider that it is more convenient, in dealing with the submissions of the Applicants, to distinguish general questions, namely the matters concerning the general obligations of the Respondent as Mandatory as provided for in Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant from those stipulated in particular provisions of the Mandate and the Covenant, and to deal with the former before the latter.

Briefly, the legal issues of the present cases are centred in the final analysis on the question of compliance or otherwise by the Respondent as Mandatory with the obligations declared in Article 2, paragraph 2, of the Mandate for the Territory of South West Africa, which is nothing else but the concrete application to this Territory of the principle enunciated in Article 22, paragraph 1, of the Covenant concerning the mandates system in general.

Before examining the Applicants' Submissions Nos. 3 and 4 in detail, we must envisage the question of the justiciability raised by the Respondent of the dispute of the present cases. If the dispute of these cases is political, administrative, technical or otherwise in character, and not of legal character, the Court will have no power to exercise its jurisdiction over it.
Regarding this matter, it must be recalled that the contention of the political character of the dispute was not raised by the Respondent to the Court at the stage of the preliminary objection proceedings and that it was made later during the first stage of the oral proceedings by counsel for the Respondent (C.R. 65/18, pp. 6 ff.). It is to be noted that this contention is related only to the general obligations incumbent upon the Respondent by Article 2, paragraph 2, and Article 22 of the Covenant as Mandatory and not to specific obligations provided for in Articles 3, 4, 5, 6 and 7 of the Mandate. Accordingly, the arguments between the Parties concerning the justiciability of the dispute of the present cases have particular significance only in relation to the Applicants' Submissions Nos. 3 and 4 which are concerned with the general principles and objectives of the mandates system. [p 280]

The Mandate cannot be conceived as divorced from political, administrative, economic, technical and cultural factors and as a result this consideration makes the question of justiciability more complicated.

The Respondent denies the justiciability of matters pertaining to Article 2, paragraph 2, of the Mandate. The reason thereof is found in the nature of the power of the Mandatory which is political and technical, therefore wide, general and, accordingly, discretionary.

The objectives of the mandates system are declared to be "the well-being and development" of such peoples, namely "peoples not yet able to stand by themselves under the strenuous conditions of the modern world".

The "well-being and development" mean "the material and moral well-being and the social progress". (Article 2, paragraph 2, of the Mandate.) That these objectives form a "sacred trust of civilization" and "that securities for the performance of this trust should be embodied in this Covenant", is the principle which should be applied to the colonies and territories under the mandates system. The securities for the performance of the trust are provided in the Covenant as well as in the individual mandate instruments, but the objectives of the mandates system are broad, abstract and comprehensive as is shown by the use of words such as "well-being", ''development" and "progress".

Strictly speaking, these concepts having the character of a value judgment are susceptible of taking different contents according to various philosophical, theological, political systems and ways of thinking, and consequently it may be extremely difficult for everybody to agree on what is meant or implied by these terms, and on the degree of importance which should be attached to a value in the whole hierarchy of values. What is meant by well-being or progress? Which one has priority in case of conflict between material and moral well-being? Is there any difference between "progress" and "development"? Concerning the latter two concepts there may be great divergence of standpoints between evolutionists or pragmatists and conservatives. Concerning the appreciation of the moral well-being and what it consists of idealists and materialists may differ one from the other.

The creators of Article 22 and the drafters of the Mandate agreement, however, do not appear to have scrutinized these matters from the above-mentioned point of view. They wanted to indicate by this simple formula the goal of good government as it should be applied to the administration of mandated territories. They wanted to find some idea or principle which could be considered a common denominator among divergent political ideas and thoughts on good government just as it is inevitable in the case of indicating a constitutional aim of a democratic State or, in an analogous case, of an international organization whose purposes are as general as those of the League of Nations or the United Nations.

Let us suppose that the legislators of a certain political community [p 281] succeeded in finding a constitutional formula which the majority of its members could agree to adopt. Still one cannot be optimistic about its interpretation. Everyone would interpret it according to his own philosophical or political viewpoint; each would attach a different meaning to the same slogan. The necessary conclusion would be subjectivism, relativism and anarchism in the interpretation and multiplicity of political parties in a democratic society.

The fact that, in most cases, political communities under abstract principles which would indicate general orientation to the politics and administration, stand, survive, maintain and even prosper, is not attributable to the legislative technique or the manner in which the objectives of the communities in their constitutions are expressed, but, in final instance, to the common-sense and political wisdom of the leaders and constituents of the respective communities.

From what has been mentioned above, we are inclined to conclude that the concept of the promotion of "material and moral well-being and social progress of the inhabitants" which constitutes the objectives of the Mandate for South West Africa (Article 2, paragraph 2), is in itself of political character and cannot be recognized as susceptible of judicial determination and execution.

By saying so we do not assert that Article 2, paragraph 2, of the Mandate does not possess the character of a legal norm. Legislators can adopt in the system of legal norms other cultural norms, which are socially relevant, namely moral, political, economic, technical norms, etc., as distinct from the juridical value judgment. In such cases, a cultural norm quite heterogeneous in character to legal norm, e.g., in the control of traffic or architecture, is incorporated in the system of law. In such cases, we may Say that a technique is vested with juridical value, or that a technique is "naturalized" in the system of law.

Such "naturalization" between legal and other cultural norms occurs most frequently between law on the one hand and morals and politics on the other. The article with which we are now confronted is one of the typical examples of such "naturalization".

The promotion of the material and moral well-being and the social progress of the inhabitants, are the ultimate objectives which the Mandatory is obliged to realize. These objectives are essentially of a political nature, but moral and humanitarian as well. In this case the political and moral obligations of the Mandatory, as an effect of the mandate agreement, are incorporated into the law.

The obligations incumbent upon the Respondent as Mandatory are different from its specific duties enumerated in the Covenant and mandate agreement and, clearly defined from the viewpoint of their content, present themselves as the supreme goal of the mandates system which is of political character. These obligations are therefore general, vague and abstract, and, accordingly, they are not susceptible of judicial execution, in spite of the fact that we cannot deny the legal character of the mandate agreement in its entirety. [p 282]

This is a reason why, even in countries where the institution of constitutional judicial review is adopted, some of the higher principles of the constitution are by doctrine and practice excluded from the function of courts of law. The execution of some constitutional provisions is not guaranteed as in the case of lex imperfecta.

This is a consequence of the essential difference between law and politics or administration.

The essential difference between law and politics or administration lies in the fact that law distinguishes in a categorical way what is right and just from what is wrong and unjust, while politics and administration, being the means to attain specific purposes, and dominated by considerations of expediency, make a distinction between the practical and the unpractical, the efficient and the inefficient. Consequently, in the judgment of law there is no possibility apart from what is just or unjust (tertium non datur), in the case of politics and administration there are many possibilities of choice from the viewpoint of expediency and efficiency. Politics are susceptible of gradation, in contrast to law which is categorical and absolute.

As has been mentioned above, the purposes and content of a good government are vague and are not precisely defined. Suppose we indicate it by a formula such as the promotion of "the material and moral well-being and social progress" as in the case of the Mandate for South West Africa. An infinite number of policies can be conceived that would achieve the purposes of good government, which are general and abstract. In concrete, individual cases, the objectives which should be achieved may be spiritual or material, direct or indirect, important or less important, essential or non-essential, urgent or non-urgent. Good government is concerned with the choice of means to attain certain ends. This is a characteristic of politics and administration where the discretionary power of the competent authorities prevails, and since the Mandate aims at the well-being and progress of the inhabitants, it therefore belongs to the category of politics and administration, is characterized by the discretionary nature of the Mandatory's activities.

Briefly, to promote the well-being and progress of the inhabitants, many policies and measures are conceivable. The Mandatory has a discretionary power to choose those it considers to be the most appropriate and efficient means of realizing the said objectives of the Mandate.

There is a question, posed by Judge Sir Gerald Fitzmaurice on 7 May 1965 (C.R. 65/27, pp. 57-59) to both Parties, in relation to whether the requirement of the "promotion of well-being and social progress" can be satisfied by any total increase, namely by considering the progress ."on balance", or whether the existence of a total increase on the one side cannot itself be considered as the achievement of "promotion of the well-being and progress", if, on the other side, there exists, on the part of the government, any failure to promote well-being and progress. If one takes the view that the Mandatory is in principle given [p 283] discretionary power to perform the obligations imposed by Article 2, paragraph 2, of the Mandate, namely the well-being and progress of the inhabitants, it follows that it can choose quite freely any policies or measures which it considers appropriate to realize this objective; accordingly, any partial failure in respect of specific policies or measures cannot necessarily be considered to constitute a breach of the Mandate. The reason therefor is that the discretionary power recognized as being conferred on the Mandatory includes its capacity of value judgment as between various possible policies and measures to be taken to realize the objectives of the Mandate.

Furthermore, the concept of the well-being and progress involves a quantitative factor. One cannot ascertain whether, at a certain point of time, the well-being and progress have been achieved or not. That the Mandatory is required to promote "to the utmost" (English) or 'par tous les moyens en son pouvoir" (French) means that the obligations of the Mandatory provided by Article 2, paragraph 2, are elastic and that there exists a possibility of wide discretion for their performance.

Investigation of the degree of expediency is not a matter for courts of law to deal with. The appropriateness of the exercise of a discretionary power by the Mandatory does not belong to matters subject to the jurisdiction of a court of law. Therefore the contention of the Respondent that the exercise of the Mandatory's power is discretionary, and that it is not justiciable unless the power has been exercised in bad faith, can be recognized as being fundamentally right. The political obligations are in themselves incompatible with judicial review.

That the Mandatory has discretionary power concerning the administration of the Territory is declared by Article 2, paragraph 1, which provides: "The Mandatory shall have full power of administration and legislation over the territory . . ."

What has been said above does not mean that the Mandatory has an unlimited right to exercise the discretionary power conferred upon it for the performance of the obligations imposed by the Mandate. The exercise of this power is primarily limited by the individual provisions of the mandate instrument and Article 22 of the Covenant. Article 2, paragraph 1, provides that "... the full power of administration and legislation . . . subject to the present Mandate ...". The Applicants indeed based their Submissions Nos. 5, 6, 7 and 9 on Article 2, paragraph 1, of the Mandate, Article 22 of the Covenant, Article 6 of the Mandate and Article 22 of the Covenant, and Article 7, paragraph 1, of the Mandate respectively. Concerning these points, justiciability on the Applicants' submissions cannot be denied and the Respondent does not dare to deny it. Controversy on the justiciability of the present cases would accordingly be limited to the Applicants' Submissions Nos. 3 and 4 which are related only to Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant to the extent that it is concerned with Article 2, paragraph 2, of the Mandate.[p 284]

From this viewpoint the question is whether the wide discretionary power conferred by Article 2, paragraph 1, excludes any possibility of a breach of the Mandate other than a breach of individual provisions of the Mandate and the Covenant indicated above. If any legal norm exists which is applicable to the exercise of the discretionary power of the Mandatory, then it will present itself as a limitation of this power, and the possible violation of this norm would result in a breach of the Mandate and hence the justiciability of this matter.

***

Now we shall examine Nos. 3 and 4 of the Applicants' final submissions. Submission No. 3 reads as follows:

"Respondent, by laws and regulations, and official methods and measures, which are set out in the pleadings herein, has practised apartheid, i.e., has distinguished as to race, colour, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that Respondent has the duty forthwith to cease the practice of apartheid in the Territory;" (Applicants' final submissions, C.R. 65/35, p. 69).

At the same time, Applicants have presented another submission (Submission No. 4) which states as follows:

"Respondent, by virtue of economic, political, social and educational policies applied within the Territory, by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein, has, in the light of applicable inter-national standards or international legal norm, or both, failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant; and that Respondent has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties under such Articles;" (Applicants' final submissions, 19 May 1965, C.R. 65/35, pp. 69-70).

The President, Sir Percy Spender, for the purpose of clarification, addressed a question to the Applicants in relation to Submissions 3 and 4 in the Memorials at page 197, which are not fundamentally different from the above-mentioned Final Submissions Nos. 3 and 4. He asked what was the distinction between one (i.e., Submission No. 3) and the other (i.e., Submission No. 4). (C.R. 65/23, 28 April 1965, p. 31.)[p 285]

The response of the Applicants on this point was that the distinction between the two Submissions 3 and 4 was verbal only (19 May 1965, C.R. 65/35, p. 71). This response, being made after the amendment of the Applicants' submissions, may be considered as applicable to the amended Submissions Nos. 3 and 4.

It should be pointed out that the main difference between the original and the Final Submissions Nos. 3 and 4 is that a phrase, namely: "in the light of applicable international standards or international legal norm, or both" is inserted between "has" and "failed to promote to the utmost .. ." which seems to make clear the substantive identity existing between these two submissions.

Now we shall analyse each of these submissions, which occupy the central issue of the whole of the Applicants' submissions and upon which the greater part of the arguments of the Parties has been focused. This issue is without doubt the question concerning the policy of apartheid which the Respondent as Mandatory is alleged to have practised.

First, we shall deal with the concept of apartheid. The Applicants, in defining apartheid, said: "Respondent .. . has distinguished as to race, colour, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory."

It may be said that, as between the Parties, no divergence of opinion on the concept of apartheid itself exists, notwithstanding that the Respondent prefers to use other terminology, such as "separate development", instead of "apartheid". Anyhow, it seems that there has been no argument concerning the concept of apartheid itself. Furthermore, we can also recognize that the Respondent has never denied its practice of apartheid; but it wants to establish the legality and reasonableness of this policy under the mandates system and its compatibility with the obligations of the Respondent as Mandatory, as well as its necessity to perform these obligations.

Submission No. 3 contends that such practice (i.e., the practice of apartheid) is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant. However, the Applicants' contention is not clear as to whether the violation, by the practice of apartheid, of the Respondent's obligation is conceived from the viewpoint of politics or law. If we consider Submission No. 3, only on the basis of its literal interpretation, it may be considered to be from the viewpoint of politics; this means that the policy of apartheid is not in conformity with the objectives of the Mandate, namely the promotion of well-being and social progress of the inhabitants without regard to any conceivable legal norm or standards. If the Applicants maintain this position, the issue would be a matter of discretion and the case, so far as this point is concerned, would not be justiciable, as the Respondent has contended.

Now the Applicants do not allege the violation of obligations by the Respondent independently of any legal norm or standards. Since the Applicants amended Submission No. 4 in the Memorials and inserted [p 283] a phrase "in the light of applicable international standards or international legal norm", the violation of the obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant (Submission No. 3) which is identical with the failure to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory (Submission No. 4) has come to possess a special meaning; namely of a juridical character. Applicants' cause is no longer based directly on a violation of the well-being and progress by the practice of apartheid, but on the alleged violation of certain international standards or international legal norm and not directly on the obligation to promote the well-being and social progress of the inhabitants. There is no doubt that, if such standards and norm exist, their observance in itself may constitute a part of Respondent's general obligations to promote the well-being and social progress.

From what is said above, the relationship between the Applicants' Submissions Nos. 3 and 4 may be understood as follows. The two submissions deal with the same subject-matter, namely the illegal character of the policy and practice of apartheid. However, the contents of each submission are not quite the same, consequently the distinction between the two submissions is not verbal only, as Applicants stated in answer to the question of the President; each seems to be supplementary to the other.

Briefly, the Applicants' Submissions Nos. 3 and 4, as newly formulated, rest upon a norm and/or standard. This norm or standard has been added by the Applicants to Submission No. 4. The existence of this norm or standard to be applied to the Mandate relationships, according to the Applicants' allegation, constitutes a legal limitation of the Respondent's discretionary power and makes the practice of apartheid illegal, and accordingly a violation of the obligations incumbent on the Mandatory.
What the Applicants mean by apartheid is as follows:

"Under apartheid, the status, rights, duties, opportunities and burdens of the population are determined and allotted arbitrarily on the basis of race, color and tribe, in a pattern which ignores the needs and capacities of the groups and individuals affected, and subordinates the interests and rights of the great majority of the people to the preferences of a minority ... It deals with apartheid in practice, as it actually is and as it actually has been in the life of the people of the Territory . .." (Memorials, p. 108.)

The Applicants contend the existence of a norm or standards which prohibit the practice of apartheid. These norm or standards are nothing other than those of non-discrimination or non-separation.

The Respondent denies the existence of a norm or standard to prohibit [p 287] the practice of apartheid and tries to justify this practice from the discretionary nature of the Mandatory's power. The Respondent emphasizes that the practice of apartheid is only impermissible when it is carried out in bad faith.

From the viewpoint of the Applicants, the existence, and objective validity, of a norm of non-discrimination make the question of the intention or motivation irrelevant for the purposes of determining whether there has been a violation of this norm. The principle that a legal precept, as opposed to a moral one, in so far as it is not specifically provided otherwise, shall be applied objectively, independently of motivation on the Dart of those concerned and independently of other individual circumstances, may be applicable to the Respondent's defence of bona jides.

***
Here we are concerned with the existence of a legal norm or standards regarding non-discrimination. It is a question which is concerned with the sources of international law, and, at the same time, with the mandate law. Furthermore, the question is intimately related to the essence and nature of fundamental human rights, the promotion and encouragement of respect for which constitute one of the purposes of the United Nations (Article 1, paragraph 3, Charter of the United Nations), in which the principle of equality before the law occupies the most important part —a principle, from the Applicants' view, antithetical to the policy of apartheid.

What is meant by "international norm or standards" can be understood as being related to the principle of equality before the law.

The question is whether a legal norm on equality before the law exists in the international sphere and whether it has a binding power upon the Respondent's conduct in carrying out its obligations as Mandatory. The question is whether the principle of equality before the law can find its place among the sources of international law which are referred to in Article 38, paragraph 1.

Now we shall examine one by one the sources of international law enumerated by the above-mentioned provision.

First we consider the international conventions (or treaties). Here we are not concerned with "special" or "particular" law-making bilateral treaties, but only with law-making multilateral treaties such as the Charter of the United Nations, the Constitution of the International Labour Organisation, the Genocide Convention, which have special significance as legislative methods. However, even such law-making treaties bind only signatory States and they do not bind States which are not parties to them.

The question is whether the Charter of the United Nations contains a legal norm of equality before the law and the principle of non-dis-[p 288]crimination on account of religion, race, colour, sex, language, political creed, etc. The achievement of international co-operation in "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" constitutes one of the purposes of the United Nations (Article 1, paragraph 3). Next, the General Assembly shall initiate studies and make recommendations for the purpose of: ". .. (b) . . . and assisting in the realization of human rights and fundamental freedoms without distinction as to race, sex, language, or religion" (Article 13, paragraph 1 (b)). "Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" is one of the items which shall be promoted by the United Nations in the field of international economic and social co-operation (Articles 55 (c), 56). In this field, the Economic and Social Council may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all (Article 62, paragraph 2, Charter). Finally, "to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion7' is indicated as one of the basic objectives of the trusteeship system (Article 76 (c)).

The repeated references in the Charter to the fundamental rights and freedoms—at least four times—presents itself as one of its differences from the Covenant of the League of Nations, in which the existence of intimate relationships between peace and respect for human rights were not so keenly felt as in the Charter of the United Nations. However, the Charter did not go so far as to give the definition to the fundamental rights and freedoms, nor to provide any machinery of implementation for the protection and guarantee of these rights and freedoms. The "Universal Declaration of Human Rights and Fundamental Freedoms" of 1948 which wanted to formulate each right and freedom and give them concrete content, is no more than a declaration adopted by the General Assembly and not a treaty binding on the member States. The goal of the codification on the matter of human rights and freedoms has until now not been reached Save in very limited degree, namely with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953, the validity of which is only regional and not universal and with a few special conventions, such as "genocide" and political rights of women, the application of which is limited to their respective matters.

In view of these situations, can the Applicants contend, as an interpretation of the Charter, that the existence of a legal norm on equality before the law, which prescribes non-discrimination on account of religion, race, colour, etc., accordingly forbids the practice of apartheid? Is what the Charter requires limited only "to achieve international Co-operation ... in promoting and encouraging respect for human rights and for fundamental freedoms . .." and other matters referred to above?

Under these circumstances it seems difficult to recognize that the [p 289] Charter expressly imposes on member States any legal obligation with respect to the fundamental human rights and freedoms. On the other hand, we cannot ignore the enormous importance which the Charter attaches to the realization of fundamental human rights and freedoms. Article 56 States: "All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55." (Article 55 enumerates the purposes of international economic and social co-operation, in which "universal respect for, and observance of, human rights and fundamental freedoms" is included.) Well, those who pledge themselves to take action in co-operation with the United Nations in respect of the pro-motion of universal respect for, and observance of, human rights and fundamental freedoms, cannot violate, without contradiction, these rights and freedoms. How can one, on the one hand, preach respect for human rights to others and, on the other hand, disclaim for oneself the obligation to respect them? From the provisions of the Charter referring to the human rights and fundamental freedoms it can be inferred that the legal obligation to respect human rights and fundamental freedoms is imposed on member States.

Judge Spiropoulos confirmed the binding character of the human rights provisions of the Charter:

"As the obligation to respect human rights was placed upon Member States by the Charter, it followed that any violation of human rights was a violation of the provision of the Charter." (G.A., O.R., 3rd Session, 6th Committee, 138th Meeting, 7 December 1948, p. 765.)

Judge Jessup also attributed the same character to the human rights provisions:

"Since this book is written de lege ferenda, the attempt is made throughout to distinguish between the existing law and the future goals of the law. It is already the law, at least for Members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter." (Philip C. Jessup, Modern Law of Nations, 1948, p. 91.)

Without doubt, under the present circumstances, the international protection of human rights and fundamental freedoms is very imperfect. The work of codification in this field of law has advanced little from the viewpoint of defining each human right and freedom, as well as the machinery for their realization. But there is little doubt of the existence of human rights and freedoms; if not, respect for these is logically inconceivable; the Charter presupposes the existence of human rights and freedoms which shall be respected; the existence of such rights and freedoms is unthinkable without corresponding obligations of persons concerned and a legal norm underlying them. Furthermore, there is no doubt that these obligations are not only moral ones, and that they [p 290] also have a legal character by the very nature of the subject-matter.

Therefore, the legislative imperfections in the definition of human rights and freedoms and the lack of mechanism for implementation, do not constitute a reason for denying their existence and the need for their legal protection.

Furthermore, it must be pointed out that the Charter provisions, as indicated above, repeatedly emphasize the principle of equality before the law by saying, "without distinction as to race, sex, language or religion".

Under the hypothesis that in the United Nations Charter there exists a legal norm or standards of non-discrimination, are the Applicants, referring to this norm, entitled to have recourse to the International Court of Justice according to Article 7, paragraph 2, of the Mandate? The Respondent contends that such an alleged norm does not constitute a part of the mandate agreement, and therefore the question on this norm falls outside the dispute, which, by the compromissory clause, is placed under the jurisdiction of the International Court of Justice. The Applicants' contention would amount to the introduction of a new element into the mandate agreement which is alien to this instrument.

It is evident that, as the Respondent contends, the mandate agreement does not stipulate equality before the law clause, and that this clause does not formally constitute a part of the mandate instrument. Nevertheless, the equality principle, as an integral part of the Charter of the United Nations or as an independent source of general international law, can be directly applied to the matter of the Mandate either as constituting a kind of law of the Mandate in sensu lato or, at least in respect of standards, as a principle of interpretation of the mandate agreement. Accordingly, the dispute concerning the legality of apartheid comes within the field of the interpretation and application of the provisions of the Mandate stipulated in Article 7, paragraph 2, of the Mandate.

This conclusion is justified only on the presupposition that the Respondent is bound by the Charter of the United Nations not only as a member State but also as a Mandatory. The Charter, being of the nature of special international law, or the law of the organized international community, must be applied to all matters which come within the purposes and competence of the United Nations and with which member States are concerned, including the matter of the Mandate. Logic requires that, so long as we recognize the unity of personality, the same principle must govern both the conduct of a member State in the United Nations itself and also its conduct as a mandatory, particularly in the matter of the protection and guarantee of human rights and freedoms.
*** [p 291]

Concerning the Applicants' contention attributing to the norm of non-discrimination or non-separation the character of customary international law, the following points must be noted.

The Applicants enumerate resolutions and declarations of international organs which condemn racial discrimination, segregation, separation and apartheid, and contend that the said resolutions and declarations were adopted by an overwhelming majority, and therefore have binding power in regard to an opposing State, namely the Respondent. Concerning the question whether the consent of all States is required for the creation of a customary international law or not, we consider that the answer must be in the negative for the reason that Article 38, paragraph 1 (b), of the Statute does not exclude the possibility of a few dissidents for the purpose of the creation of a customary international law and that the contrary view of a particular State or States would result in the permission of obstruction by veto, which could not have been expected by the legislator who drafted the said Article.

An important question involved in the Applicants' contention is whether resolutions and declarations of international organs can be recognized as a factor in the custom-generating process in the interpretation of Article 38, paragraph 1 (b), that is to Say, as "evidence of a general practice".

According to traditional international law, a general practice is the result of the repetition of individual acts of States constituting consensus in regard to a certain content of a rule of law. Such repetition of acts is an historical process extending over a long period of time. The process of the formation of a customary law in this case may be described as individualistic. On the contrary, this process is going to change in adapting itself to changes in the way of international life. The appearance of organizations such as the League of Nations and the United Nations, with their agencies and affiliated institutions, replacing an important part of the traditional individualistic method of international negotiation by the method of "parliamentary diplomacy" (Judgment on the South West Africa cases, I.C.J. Reports 1962, p. 346), is bound to influence the mode of generation of customary international law. A State, instead of pronouncing its view to a few States directly concerned, has the opportunity, through the medium of an organization, to declare its position to all members of the organization and to know immediately their reaction on the same matter. In former days, practice, repetition and opinio juris sive necessitatis, which are the ingredients of customary law might be combined together in a very long and slow process extending over centuries. In the contemporary age of highly developed techniques of communication and information, the formation of a custom through the medium of international organizations is greatly facilitated and accelerated; the establishment of such a custom would require no more than one generation or even far less than that. This is one of the examples of the transformation of law inevitably produced by change in the social substratum. [p 292]

Of course, we cannot admit that individual resolutions, declarations, judgments, decisions, etc., have binding force upon the members of the organization. What is required for customary international law is the repetition of the same practice; accordingly, in this case resolutions, declarations, etc., on the same matter in the same, or diverse, organizations must take place repeatedly.

Parallel with such repetition, each resolution, declaration, etc., being considered as the manifestation of the collective will of individual participant States, the will of the international community can certainly be formulated more quickly and more accurately as compared with the traditional method of the normative process. This collective, cumulative and organic process of custom-generation can be characterized as the middle way between legislation by convention and the traditional process of custom making, and can be seen to have an important role from the viewpoint of the development of international law.

In short, the accumulation of authoritative pronouncements such as resolutions, declarations, decisions, etc., concerning the interpretation of the Charter by the competent organs of the international community can be characterized as evidence of the international custom referred to in Article 38, paragraph 1 (b).

In the present case the Applicants assert the existence of the international norm and standards of non-discrimination and non-separation and refer to this source of international law. They enumerate resolutions of the General Assembly which repeatedly and strongly deny the apartheid policy of racial discrimination as an interpretation of the Charter (General Assembly resolution 1178 (XII) of 26 November 1957; resolution 1248 (XIII) of 30 October 1958; resolution 1375 (XIV) of 17 November 1959; resolution 1598 (XV) of 13 April 1961; and resolutions of the Security Council (with regard to apartheid as practised in the Republic of South Africa); resolution of 7 August 1953 which declares the inconsistency of the policy of the South African Government with the principles contained in the Charter of the United Nations and with its obligations as a member State of the United Nations; resolution of 4 December 1963 which declares ". .. the policies of apartheid and racial discrimination . .. are abhorrent to the conscience of mankind . . .". The Applicants cite also the report of the Committee on South West Africa for 1956.)

Moreover, the 11 trust territories agreements, each of them containing a provision concerning the norm of official non-discrimination or non-separation on the basis of membership in a group or race, may be considered as contributions to the development of the universal acceptance of the norm of non-discrimination, in addition to the meaning which each provision possesses in each trusteeship agreement, by virtue of Article 38, paragraph 1 (a), of the Statute. [p 293]

Furthermore, the Universal Declaration of Human Rights adopted by the General Assembly in 1948, although not binding in itself, constitutes evidence of the interpretation and application of the relevant Charter provisions. The same may be said of the Draft Declaration on Rights and Duties of States adopted by the International Law Commission in 1949, the Draft Covenant on civil and political rights, the Draft Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of all Forms of Racial Discrimination adopted by the General Assembly of the United Nations on 20 November 1963 and of regional treaties and declarations, particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms signed on 3 September 1953, the Charter of the Organization of American States signed on 30 April 1948, the American Declaration of the Rights and Duties of Man, 1948, the Draft Declaration of International Rights and Duties, 1945.

From what has been said above, we consider that the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law as is contended by the Applicants, and as a result, the Respondent's obligations as Mandatory are governed by this legal norm in its capacity as a member of the United Nations either directly or at least by way of interpretation of Article 2, paragraph 2.

One of the contentions concerning the application of the said legal norm is that, if such a legal norm exists for judging the Respondent's obligations under Article 2, paragraph 2, of the Mandate, it would be the one in existence at the time the Mandate was entrusted to the Respon-dent. This is evidently a question of inter-temporal law.

The Respondent's position is that of denying the application of a new law to a matter which arose under an old law, namely the negation of retroactivity of a new customary law. The Applicants' argument is based on "the relevance of the evolving practice and views of States, growth of experience and increasing knowledge in political and social science to the determination of obligations bearing on the nature and purpose of the Mandate in general, and Article 2, paragraph 2"; briefly, it rests on the assertion of the concept of the "continuous, dynamic and ascending growth" of the obligation of the Mandatory.

Our view on this question is substantially not very different from that of the Applicants. The reason why we recognize the retroactive application of a new customary law to a matter which started more than 40 years ago is as follows.

The matter in question is in reality not that of an old law and a new law, that is to say, it is not a question which arises out of an amendment of a law and which should be decided on the basis of the principle of the protection of droit acquis and therefore of non-retroactivity. In the present [p 294] case, the protection of the acquired rights of the Respondent is not the issue, but its obligations, because the main purposes of the mandate system are ethical and humanitarian. The Respondent has no right to behave in an inhuman way today as well as during these 40 years. Therefore, the recognition of the generation of a new customary international law on the matter of non-discrimination is not to be regarded as detrimental to the Mandatory, but as an authentic interpretation of the already existing provisions of Article 2, paragraph 2, of the Mandate and the Covenant. It is nothing other than a simple clarification of what was not so clear 40 years ago. What ought to have been clear 40 years ago has been revealed by the creation of a new customary law which plays the role of authentic interpretation the effect of which is retroactive.

Briefly, the method of the generation of customary international law is in the stage of transformation from being an individualistic process to being a collectivistic process. This phenomenon can be said to be the adaptation of the traditional creative process of international law to the reality of the growth of the organized international community. It can be characterized, considered from the sociological viewpoint, as a transition from traditional custom-making to international legislation by treaty.

***
Following the reference to Article 38, paragraph 1 (b), of the Statute, the Applicants base their contention on the legal norm alternatively on Article 38, paragraph 1 (c), of the Statute, namely "the general principles of law recognized by civilized nations".

Applicants refer to this source of international law both as an independent ground for the justification of the norm of non-discrimination and as a supplement and reinforcement of the other arguments advanced by them to demonstrate their theory.

The question is whether the legal norm of non-discrimination or non-separation denying the practice of apartheid can be recognized as a principle enunciated in the said provision.

The wording of this provision is very broad and vague; the meaning is not clear. Multiple interpretations ranging from the most strict to the most liberal are possible.

To decide this question we must clarify the meaning of "general principles of law". To restrict the meaning to private law principles or principles of procedural law seems from the viewpoint of literal interpretation untenable. So far as the "general principles of law" are not qualified, the "law" must be understood to embrace all branches of law, including municipal law, public law, constitutional and administrative law, private law, commercial law, substantive and procedural law, etc. [p 295]

Nevertheless, analogies drawn from these laws should not be made mechanically, that is to Say, to borrow the expression of Lord McNair, "by means of importing private law institutions 'lock, stock and barrel' ready-made and fully equipped with a set of rules". (I.C.J. Reports 1950, p. 148.)

What international law can with advantage borrow from these sources must be from the viewpoint of underlying or guiding "principles". These principles, therefore, must not be limited to statutory provisions and institutions of national laws: they must be extended to the funda-mental concepts of each branch of law as well as to law in general so far as these can be considered as "recognized by civilized nations."

Accordingly, the general principles of law in the sense of Article 38, paragraph 1 (c), are not limited to certain basic principles of law such as the limitation of State sovereignty, third-party judgment, limitation of the right of self-defence, pacta sunt servanda, respect for acquired rights, liability for unlawful harm to one's neighbour, the principle of good faith, etc. The word "general" may be understood to possess the same meaning as in the case of the "general theory of law", "théorie générale de droit", "die Allgemeine Rechtslehre", namely common to all branches of law. But the principles themselves are very extensive and can be interpreted to include not only the general theory of law, but the general theories of each branch of municipal law, so far as recognized by civilized nations. They may be conceived, furthermore, as including not only legal principles but the fundamental legal concepts of which the legal norms are composed such as person, right, duty, property, juristic act, contract, tort, succession, etc.

In short, they may include what can be considered as "juridical truth" (Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953, p. 24).

The question is whether a legal norm of non-discrimination and non-separation has come into existence in international society, as the Applicants contend. It is beyond all doubt that the presence of laws against racial discrimination and segregation in the municipal systems of virtually every State can be established by comparative law studies. The recognition of this norm by civilized nations can be ascertained. If the condition of "general principles" is fulfilled, namely if we can Say that the general principles include the norm concerning the protection of human rights by adopting the wide interpretation of the provision of Article 38, paragraph 1 (c), the norm will find its place among the sources of international law.

In this context we have to consider the relationship between a norm of a human rights nature and international law. Originally, general principles are considered to be certain private law principles found by [p 296] the comparative law method and applicable by way of analogy to matters of an international character. These principles are of a nature common to all nations, that is of the character of jus gentium. These principles, which originally belong to private law and have the character of jus gentium, can be incorporated in international law so as to be applied to matters of an international nature by way of analogy, as we see in the case of the application of some rules of contract law to the interpretation of treaties. In the case of the international protection of human rights, on the contrary, what is involved is not the application by analogy of a principle or a norm of private law to a matter of international character, but the recognition of the juridical validity of a similar legal fact without any distinction as between the municipal and the international legal sphere.

In short, human rights which require protection are the same; they are not the product of a particular juridical system in the hierarchy of the legal order, but the same human rights must be recognized, respected and protected everywhere man goes. The uniformity of national laws on the protection of human rights is not derived, as in the cases of the law of contracts and commercial arid maritime transactions, from considerations of expediency by the legislative organs or from the creative power of the custom of a community, but it already exists in spite of its more-or-less vague form. This is of nature jus naturale in roman law.

The unified national laws of the character of jus gentium and of the law of human rights, which is of the character of jus naturale in roman law, both constituting a part of the law of the world community which may be designated as World Law, Common Law of Mankind (Jenks), Transnational Law (Jessup), etc., at the same time constitute a part of international law through the medium of Article 38, paragraph 1 (c). But there is a difference between these two cases. In the former, the general principles are presented as common elements among diverse national laws; in the latter, only one and the same law exists and this is valid through all kinds of human societies in relationships of hierarchy and co-ordination.

This distinction between the two categories of law of an international character is important in deciding the scope and extent of Article 38, paragraph 1 (c). The Respondent contends that the suggested application by the Applicants of a principle recognized by civilized nations is not a correct analogy and application as contemplated by Article 38, paragraph 1 (c). The Respondent contends that the alleged norm of non-differentiation as between individuals within a State on the basis of membership of a race, class or group could not be transferred by way of analogy to the international relationship, otherwise it would mean that all nations are to be treated equally despite the difference of race, colour, etc.—a conclusion which is absurd. (C.R. 65/47, p. 7.) If we limit the application of Article 38, paragraph 1 (c), to a strict analogical extension of certain [p 297] principles of municipal law, we must recognize that the contention of the Respondent is well-founded. The said provision, however, does not limit its application to cases of anology with municipal, or private law which has certainly been a most important instance of the application of this provision. We must include the international protection of human rights in the application of this provision. It must not be regarded as a case of analogy. In reality, there is only one human right which is valid in the international sphere as well as in the domestic sphere.

The question here is not of an "international", that is to say, inter-State nature, but it is concerned with the question of the international validity of human rights, that is to Say, the question whether a State is obliged to protect human rights in the international sphere as it is obliged in the domestic sphere.

The principle of the protection of human rights is derived from the concept of man as a person and his relationship with society which cannot be separated from universal human nature. The existence of human rights does not depend on the will of a State; neither internally on its law or any other legislative measure, nor internationally on treaty or custom, in which the express or tacit will of a State constitutes the essential element.

A State or States are not capable of creating human rights by law or by convention; they can only confirm their existence and give them protection. The role of the State is no more than declaratory. It is exactly the same as the International Court of Justice ruling concerning the Reservations to the Genocide Convention case (I.C.J. Reports 1951, p. 23):

"The solution of these problems must be found in the special characteristics of the Genocide Convention .. . The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (resolution 96 (1) of the General Assembly, December 11th, 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the Co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)." (Italics added.)

Human rights have always existed with the human being. They existed independently of, and before, the State. Alien and even stateless persons [p 298] must not be deprived of them. Belonging to diverse kinds of communities and societies—ranging from family, club, corporation, to State and international community, the human rights of man must be protected everywhere in this social hierarchy, just as copyright is protected domestically and internationally. There must be no legal vacuum in the protection of human rights. Who can believe, as a reasonable man, that the existence of human rights depends upon the internal or international legislative measures, etc., of the State and that accordingly they can be validly abolished or modified by the will of the State?

If a law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, because it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called "natural law" in contrast to "positive law".

Provisions of the constitutions of some countries characterize fundamental human rights and freedoms as "inalienable", "sacred", "eternal", "inviolate", etc. Therefore, the guarantee of fundamental human rights and freedoms possesses a super-constitutional significance.

If we can introduce in the international field a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.

As an interpretation of Article 38, paragraph 1 (c), we consider that the concept of human rights and of their protection is included in the general principles mentioned in that Article.

Such an interpretation would necessarily be open to the criticism of falling into the error of natural law dogma. But it is undeniable that in Article 38, paragraph 1 (c), some natural law elements are inherent. It extends the concept of the source of international law beyond the limit of legal positivism according to which, the States being bound only by their own will, international law is nothing but the law of the consent and auto-limitation of the State. But this viewpoint, we believe, was clearly overruled by Article 38, paragraph 1 (c), by the fact that this provision does not require the consent of States as a condition of the recognition of the general principles. States which do not recognize this principle or even deny its validity are nevertheless subject to its rule. From this kind of source international law could have the foundation of its validity extended beyond the will of States, that is to say, into the sphere of natural law and assume an aspect of its supra-national and supra-positive character.

The above-mentioned character of Article 38, paragraph 1 (c), of the Statute is proved by the process of the drafting of this article by [p 299] the Committee of Jurists. The original proposal made by Baron Des-camps referred to "la conscience juridique des peuples civilisés", a concept which clearly indicated an idea originating in natural law. This proposal met with the opposition of the positivist members of the Committee, represented by Mr. Root. The final draft, namely Article 38, paragraph 1 (c), is the product of a compromise between two schools, naturalist and positivist, and therefore the fact that the natural law idea became incorporated therein is not difficult to discover (see particularly Jean Spiropoulos, Die Allgemeine Rechtsgrundsätze im Völkerrecht, 1928, pp. 60 ff.; Bin Cheng, op. cit., pp. 24-26).

Furthermore, an important role which can be played by Article 38, paragraph 1 (c), in filling in gaps in the positive sources in order to avoid non liquet decisions, can only be derived from the natural law character of this provision. Professor Brierly puts it, "its inclusion is important as a rejection of the positivistic doctrine, according to which international law consists solely of rules to which States have given their consent" (J. L. Brierly, The Law of Nations, 6th ed., p. 63). Mr. Rosenne comments on the general principles of law as follows:

"Having independent existence, their validity as legal no ms does not derive from the consent of the parties as such . .. The Statute places this element on a footing of formal equality with two positivist elements of custom and treaty, and thus is positivist recognitions of the Grotian concept of the CO-existence implying no subjugation of positive law and so-called natural law of nations in the Grotian sense." (Shabtai Rosenne, The International Court of Justice, 1965, Vol. II, p. 610.)

Now the question is whether the alleged norm of non-discrimination and non-separation as a kind of protection of human rights can be considered as recognized by civilized nations and included in the general principles of law.

First the recognition of a principle by civilized nations, as indicated above, does not mean recognition by all civilized nations, nor does it mean recognition by an official act such as a legislative act; therefore the recognition is of a very elastic nature. The principle of equality before the law, however, is stipulated in the list of human rights recognized by the municipal system of virtually every State no matter whether the form of government be republican or monarchical and in spite of any differences in the degree of precision of the relevant provisions. This principle has become an integral part of the constitutions of most of the civilized countries in the world. Common-law countries must be included. (According to Constitutions of Nations, 2nd ed., by Amos J. Peaslee, 1956, Vol. 1, p. 7, about 73 per cent. of the national constitutions contain clauses respecting equality.) [p 300]

The manifestation of the recognition of this principle does not need to be limited to the act of legislation as indicated above; it may include the attitude of delegations of member States in cases of participation in resolutions, declarations, etc., against racial discrimination adopted by the organs of the League of Nations, the United Nations and other organizations which, as we have seen above, constitute an important element in the generation of customary international law.

From what we have seen above, the alleged norm of non-discrimination and non-separation, being based on the United Nations Charter, particularly Articles 55 (c), 56, and on numerous resolutions and declarations of the General Assembly and other organs of the United Nations, and owing to its nature as a general principle, can be regarded as a source of international law according to the provisions of Article 38, paragraph 1 (a) - (c). In this case three kinds of sources are cumulatively functioning to defend the above-mentioned norm: (1) international convention, (2) international custom and (3) the general principles of law.

Practically the justification of any one of these is enough, but theoretically there may be a difference in the degree of importance among the three. From a positivistic, voluntaristic viewpoint, first the convention, and next the custom, is considered important, and general principles occupy merely a supplementary position. On the contrary, if we take the supra-national objective viewpoint, the general principles would come first and the two others would follow them. If we accept the fact that convention and custom are generally the manifestation and concretization of already existing general principles, we are inclined to attribute to this third source of international law the primary position vis-à-vis the other two.

To sum up, the principle of the protection of human rights has received recognition as a legal norm under three main sources of international law, namely (1) international conventions, (2) international custom and (3) the general principles of law. Now, the principle of equality before the law or equal protection by the law presents itself as a kind of human rights norm. Therefore, what has been said on human rights in general can be applied to the principle of equality. (Cf. Wilfred Jenks, The Common Law of Mankind, 1958, p. 121. The author recognizes the principle of respect for human rights including equality before the law as a general principle of law.)

Here we must consider the principle of equality in relationship to the Mandate. The contention of the Applicants is based on this principle as condemning the practice of apartheid. The Applicants contend not only that this practice is in violation of the obligations of the Respondent imposed upon it by Article 2 of the Mandate and Article 22 of the Covenant (Submission No. 3), but that the Respondent, by virtue of economic, [p 301] political, social and educational policies has, in the light of applicable international standards or international legal norms, or both, failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. What the Applicants seek to establish seems to be that the Respondent's practice of apartheid constitutes a violation of international standards and/or an international legal norm, namely the principle of equality and, as a result, a violation of the obligations to promote to the utmost, etc. If the violation of this principle exists, this will be necessarily followed by failure to promote the well-being, etc. The question is whether the principle of equality is applicable to the relationships of the Mandate or not. The Respondent denies that the Mandate includes in its content the principle of equality as to race, colour, etc.

Regarding this point, we would refer to our above-mentioned view concerning the Respondent's contention that the alleged norm of non-discrimination of the Charter does not constitute a part of the mandate agreement, and therefore the question of this norm falls outside the dispute under Article 7, paragraph 2, of the Mandate.

We consider that the principle of equality, although it is not expressly mentioned in the mandate instrument constitutes, by its nature, an integral part of the mandates system and therefore is embodied in the Mandate. From the natural-law character of this principle its inclusion in the Mandate must be justified.

It appears to be a paradox that the inhabitants of the mandated territories are internationally more protected than citizens of States by the application of Article 7, paragraph 2, but this interpretation falls outside the scope of the present proceedings.

Next, we shall consider the content of the principle of equality which must be applied to the question of apartheid.

IV

As we have seen above, the objectives of the mandates system, being the material and moral well-being and social progress of the inhabitants of the territory, are in themselves of a political nature. Their achievement must be measured by the criteria of politics and the method of their realization belongs to the matter of the discretion conferred upon the Mandatory by Article 2, paragraph 1, of the Mandate, and Article 22 of the Covenant of the League.

The discretionary power of the Mandatory however, is not unlimited. Besides the general rules which prohibit the Mandatory from abusing its power and mala fides in performing its obligations, and besides the individual provisions of the Mandate and the Covenant, the Mandatory is subject to the Charter of the United Nations as a member State, the customary international law, general principles of law, and other sources [p 302] of international law enunciated in Article 38, paragraph 1. According to the contention of the Applicants, the norm and/or standards which prohibit the practice of apartheid, are either immediately or by way of interpretation of the Mandate binding upon the discretionary power of the Mandatory. The Respondent denies the existence of such norm and/or standards.

The divergence of views between the Parties is summarized in the following formula: whether or not the policy of racial discrimination or separate development is per se incompatible with the well-being and social progress of the inhabitants, or in other terms, whether the policy of apartheid is illegal and constitutes a breach of the Mandate, or depends upon the motive (bona fides or mala fides), the result or effect. From the Respondent's standpoint apartheid is not per se prohibited but only a special kind of discrimination which leads to oppression is prohibited.

This divergence of fundamental standpoints between the Parties is reflected in their attitudes as to what extent their contentions depend on the evidence. Contrary to the Applicants' attitude in denying the necessity of calling witnesses and experts and of an inspection in loco, the Respondent abundantly utilized numerous witnesses and experts and requested the Court to visit South West Africa, South Africa and other parts of Africa to make an inspection in loco.

First, we shall examine the content of the norm and standards of which violation by the Respondent is alleged by the Applicants.

The Applicants contend, as set forth in the Memorials (p. 108) that the Respondent's violation of its obligations under the said paragraph 2 of Article 2 of the Mandate consists in a "systematic course of positive action which inhibits the well-being, prevents the social progress and thwarts the development of the overwhelming majority" of the inhabitants of the Territory. In pursuit of such course of action, and as a pervasive feature thereof, the Respondent has, by governmental action, installed and maintained the policy of apartheid, or separate development. What is meant by apartheid is as follows:

"Under apartheid, the status, rights, duties, opportunities and burdens of the population are determined and allotted arbitrarily on the basis of race, color and tribe, in a pattern which ignores the needs and capacities of the groups and individuals affected, and subordinates the interests and rights of the great majority of the people to the preferences of a minority." (Memorials, p. 108.)

Such policy, the Applicants contend, "runs counter to modern conceptions of human rights, dignities and freedom, irrespective of race, colour or creed", which conclusion is denied by the Respondent.

The alleged legal norms of non-discrimination or non-separation by [p 303] which, by way of interpretation of Article 2, paragraph 2, of the Mandate, apartheid becomes illegal, are defined by the Applicants as follows:

"In the following analysis of the relevant legal norms, the terms 'non-discrimination' or 'non-separation' are used in their prevalent and customary sense: stated negatively, the terms refer to the absence of governmental policies or actions which allot status, rights, duties, privileges or burdens on the basis of membership in a group, class or race rather than on the basis of individual merit, capacity or potential: stated affirmatively, the terms refer to governmental policies and actions the objective of which is to protect equality of opportunity and equal protection of the laws to individual persons as such." (Reply, p. 274.)

What the Applicants want to establish, are the legal norms of "non-discrimination" or "non-separation" which are of a per se, non-qualified absolute nature, namely that the decision of observance or otherwise of the norm does not depend upon the motive, result, effect, etc. Therefore from the standpoint of the Applicants, the violation of the norm of non-discrimination is established if there exists a simple fact of discrimination without regard to the intent of oppression on the part of the Mandatory.

On the other hand, the Respondent does not recognize the existence of the norm of non-discrimination of an absolute character and seeks to prove the necessity of group differentiation in the administration of a multi-racial, multi-national, or multi-lingual community. The pleadings and verbatim records are extremely rich in examples of different treatment of diverse population groups in multi-cultural societies in the world. Many examples of different treatment quoted by the Respondent and testified to by the witnesses and experts appear to belong to the system of protection of minority groups in multi-cultural communities and cover not only the field of public law but also of private law.

The doctrine of different treatment of diverse population groups constitutes a fundamental political principle by which the Respondent administers not only the Republic of South Africa, but the neighbouring Territory of South West Africa. The geographical, historical, ethnological, economic and cultural differences and varieties between several population groups, according to the contention of the Respondent, have necessitated the adoption of the policy of apartheid or "separate development". This policy is said to be required for the purpose of the promotion of the well-being and social progress of the inhabitants of the Territory. The Respondent insists that each population group developing its own characteristics and individuality, to attain self-determination, separate development should be the best way to realize the well-being and social progress of the inhabitants. The other alternative, namely the mixed integral society in the sense of Western [p 304] democracy would necessarily lead to competition, friction, struggle, chaos, bloodshed, and dictatorship as examples may be found in some other African countries. Therefore, the most appropriate method of administration of the Territory is the principle of indirect rule maintaining and utilizing the merits of tribalism.

Briefly, it seems that the idea underlying the policy of apartheid or separate development is the racial philosophy which is not entirely identical with ideological Nazism but attributes great importance to the racial or ethnological factors in the fields of politics, law, economy and culture. Next, the method of apartheid is of sociological and, therefore, strong deterministic tendency, as we can guess from the fact that at the oral proceedings the standpoint of the Respondent was energetically sustained by many witnesses—experts who were sociologists and ethnologists.

Contrary to the standpoint of the Applicants who condemn the policy of apartheid or separate development of the Respondent as illegal, the latter conceives this policy as something neutral. The Respondent says that it can be utilized as a tool to attain a particular end, good or bad, as a knife can serve a surgeon as well as a murderer.
***
Before we decide this question, general consideration of the content of the principle of equality before the law is required. Although the existence of this principle is universally recognized as we have seen above, its precise content is not very clear.

This principle has been recognized as one of the fundamental principles of modern democracy and government based on the rule of law. Judge Lauterpacht puts it :

"The claim to equality before the law is in a substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties." (Sir Hersch Lauterpacht, An International Bill of the Rights of Man, 1945, p. 115.)

Historically, this principle was derived from the Christian idea of the equality of all men before God. All mankind are children of God, and, consequently, brothers and sisters, notwithstanding their natural and social differences, namely man and woman, husband and wife, master and slave, etc. The idea of equality of man is derived from the fact that human beings "by the common possession of reason" distinguish themselves "from other living beings". (Lauterpacht, op. cit., p. 116.) This idea existed already in the Stoic philosophy, and was developed by the scholastic philosophers and treated by natural law scholars and encyclopedists of the seventeenth and eighteenth centuries. It received [p 305] legislative formulation however, at the end of the eighteenth century first by the Bills of Rights of some American States, next by the Declaration of the French Revolution, and then in the course of the nineteenth century the equality clause, as we have seen above, became one of the common elements of the constitutions of modern European and other countries.

Examining the principle of equality before the law, we consider that it is philosophically related to the concepts of freedom and justice. The freedom of individual persons, being one of the fundamental ideas of law, is not unlimited and must be restricted by the principle of equality allotting to each individual a sphere of freedom which is due to him. In other words the freedom can exist only under the premise of the equality principle.

In what way is each individual allotted his sphere of freedom by the principle of equality? What is the content of this principle? The principle is that what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference. This is what was indicated by Aristotle as justitia commutativa and justitia distributiva.

The most fundamental point in the equality principle is that all human beings as persons have an equal value in themselves, that they are the aim itself and not means for others, and that, therefore, slavery is denied. The idea of equality of men as persons and equal treatment as such is of a metaphysical nature. It underlies all modern, democratic and humanitarian law systems as a principle of natural law. This idea, however, does not exclude the different treatment of persons from the consideration of the differences of factual circurnstances such as sexy age, language, religion, economic condition, education, etc. To treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently.

We know that law serves the concrete requirements of individual human beings and societies. If individuals differ one from another and societies also, their needs will be different, and accordingly, the content of law may not be identical. Hence is derived the relativity of law to individual circumstances.

The historical development of law tells us that, parallel to the trend of generalization the tendency of individualization or differentiation is remarkable as may be exemplified by the appearance of a system of commercial law separate from the general private law in civil law coun-tries, creation of labour law. The acquisition of independent status by commercial and labour law can be conceived as the conferment of a kind of privilege or special treatment to a merchant or labour class. In the field of criminal law the recent tendency of criminal legislative policy is directed towards the individualization of the penalty.

We can say accordingly that the principle of equality before the law [p 306] does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal.

The question is, in what case equal treatment or different treatment should exist. If we attach importance to the fact that no man is strictly equal to another and he may have some particularities, the principle of equal treatment could be easily evaded by referring to any factual and legal differences and the existence of this principle would be virtually denied. A different treatment comes into question only when and to the extent that it corresponds to the nature of the difference. To treat unequal matters differently according to their inequality is not only permitted but reqired. The issue is whether the difference exists. Accordingly, not every different treatment can be justified by the existence of differences, but only such as corresponds to the differences themselves, namely that which is called for by the idea of justice—"the principle to treat equal equally and unequal according to its inequality, constitutes an essential content of the idea of justice" (Goetz Hueck, Der Grundsatz der Gleich-mässigen Behandlung in Privatrechzt, 1958, p. 106) [translation].

Briefly, a different treatment is permitted when it can be justified by the criterion of justice. One may replace justice by the concept of reasonableness generally referred to by the AngJ.0-American school of law.

Justice or reasonableness as a criterion for the different treatment logically excludes arbitrariness. The arbitrariness which is prohibited, means the purely objective fact and not the subjective condition of those concerned. Accordingly, the arbitrariness can be asserted without regard to his motive or purpose.

There is no doubt that the principle of equality is binding upon administrative organs. The discretionary power exercised on considerations of expediency by the administrative organs is restricted by the norm of equality and the infringement of this norm makes an administrative measure illegal. The judicial power also is subjected to this principle. Then, what about the legislative power? Under the constitutions which express this principle in a form such as "all citizens are equal before the law", there may be doubt whether or not the legislators also are bound by the principle of equality. From the nature of this principle the answer must be in the affirmative. The legislators cannot be permitted to exercise their power arbitrarily and unreasonably. They are bound not only in exercising the ordinary legislative power but also the power to establish the constitution. The reason therefor is that the principle of equality being in the nature of natural law and therefore of a supra-constitutional character, is placed at the summit of hierarchy of the system of law, and that all positive laws including the constitution shall be in conformity with this principle. [p 307]

The Respondent for the purpose of justifying its policy of apartheid or separate development quotes many examples of different treatment such as minorities treaties, public conveniences (between man and woman), etc. Nobody would object to the different treatment in these cases as a violation of the norm of non-discrimination or non-separation on the hypothesis that such a norm exists. The Applicants contend for the unqualified application of the norm of non-discrimination or non-separation, but even from their point of view it would be impossible to assert that the above-mentioned cases of different treatment constitute a violation of the norm of non-discrimination.

Then, what is the criterion to distinguish a permissible discrimination from an impermissible one?

In the case of the minorities treaties the norm of non-discrimination as a reverse side of the notion of equality before the law prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not.

In any event, in case of a minority, members belonging to this group, enjoying the citizenship on equal terms with members of majority groups, have conferred on them the possibility of cultivating their own religious, educational or linguistic values as a recognition of their fundamental human rights and freedoms.

The spirit of the minorities treaties, therefore, is not negative and prohibitive, but positive and permissive.

Whether the spirit of the policy of apartheid or separate development is common with that of minorities treaties to which the Respondent repeatedly refers, whether the different treatment between man and woman concerning the public conveniences can be referred to for the purpose of justifying the policy of apartheid or not, that is the question.

In the case of apartheid, we cannot deny the existence of reasonableness in some matters that diverse ethnic groups should be treated in certain aspects differently from one another. As we have seen above, differentiation in law and politics is one of the most remarkable tendencies of the modern political Society. This tendency is in itself derived from the concept of justice, therefore it cannot be judged as wrong. It is an adaptation of the idea of justice to social realities which, as its structure, is going to be more complicated and multiplicate from the viewpoint of economic, occupational, cultural and other elements.

Therefore, different treatment requires reasonableness to justify it as is stated above. The reason may be the protection of some fundamental human rights and freedoms as we have seen in the case of minorities [p 308] treaties, or of some other nature such as incapacity of minors to conclude contracts, physical differences between man and woman.

In the case of the protection of minorities, what is protected is not the religious or linguistic group as a whole but the individuals belonging to this group, the former being nothing but a name and not a group. In the case of different treatment of minors or between man and woman, it is clear that minors, disabled persons or men or women in a country do not constitute respectively a group. But whether a racial or ethnic group can be treated in the same way as categories such as minors, disabled persons, men and women, is doubtful. Our conclusion on this point is negative. The reasons therefor are that the scientific and clear-cut definition of race is not established; that what man considers as a matter of common-sense as criteria to distinguish one race from the other, are the appearance, particularly physical characteristics such as colour, hair, etc., which do not constitute in themselves relevant factors as the basis for different political or legal treatment; and that, if there exists the necessity to treat one race differently from another, this necessity is not derived from the physical characteristics or other racial qualifications but other factors, namely religious, linguistic, educational, social, etc., which in themselves are not related to race or colour.

Briefly, in these cases it is possible that the different treatment in certain aspects is reasonably required by the differences of religion, language, education, custom, etc., not by reason of race or colour. Therefore, the Respondent tries in some cases to justify the different treatment of population groups by the concept of cultural population groups. The different treatment would be justified if there really existed the need for it by reason of cultural differences. The different treatment, however, should be condemned if cultural reasons are referred to for the purpose of dissimulating the underlying racial intention.

In any case, as we have seen above, all human beings are equal before the law and have equal opportunities without regard to religion, race, language, sex, social groups, etc. As persons they have the dignity to be treated as such. This is the principle of equality which constitutes one of the fundamental human rights and freedoms which are universal to all mankind. On the other hand, human beings, being endowed with individuality, living in different surroundings and circumstances are not all alike, and they need in some aspects politically, legally and socially different treatment. Hence the above-mentioned examples of different treatment are derived. Equal treatment is a principle but its mechanical application ignoring all concrete factors engenders injustice. Accordingly, it requires different treatment, taken into consideration, of concrete circumstances of individual cases. The different treatment is permissible and required by the considerations of justice; it does not mean a disregard of justice. [p 309]

Equality being a principle and different treatment an exception, those who refer to the different treatment must prove its raison d'être and its reasonableness.

The Applicants' norm of non-discrimination or non-separation, being conceived as of a per se nature, would appear not to permit any exception. The policy of apartheid or separate development which allots status, rights, duties, privileges or burdens on the basis of membership in a group, class or race rather than on the basis of individual merit, capacity or potential is illegal whether the motive be bona fide or mala fide, oppressive or benevolent; whether its effect or result be good or bad for the inhabitants. From this viewpoint all protective measures taken in the case of minorities treaties and other matters would be included in the illegal discrimination—a conclusion which might not be expected from the Applicants. These measures, according to the Applicants, would have nothing to do with the question of discrimination. The protection the minorities treaties intended to afford to the inhabitants is concerned with life, liberty and free exercise of religion. On the contrary, the Respondent argues the existence of the same reason in the policy of apartheid—the reason of protective measures in the case of minorities treaties.

We must recognize, on the one hand, the legality of different treatment so far as justice or reasonableness exists in it. On the other hand, we cannot recognize all measures of different treatment as legal, which have been and will be performed in the name of apartheid or separate development. The Respondent tries to prove by the pleadings and the testimony of the witnesses and experts the existence of a trend of differentiation in accordance with different religious, racial, linguistic groups. From the viewpoint of the Applicants, the abundant examples quoted by the Respondent and the testimony of witnesses and experts cannot serve as the justification of the policy of apartheid, because they belong to an entirely different plane from that of apartheid and because they are of a nature quite heterogeneous to the policy of apartheid, which is based on a particular racial philosophy and group sociology.

The important question is whether there exists, from the point of view of the requirements of justice, any necessity for establishing an exception to the principle of equality, and the Respondent must prove this necessity, namely the reasonableness of different treatment.

On the aspect of "reasonableness" two considerations arise. The one is the consideration whether or not the individual necessity exists to establish an exception to the general principle of equality before the law and equal opportunity. In this sense the necessity may be conceived as of the same nature as in the case of minorities treaties of which [p 310] the objectives are protective and beneficial. The other is the consideration whether the different treatment does or does not harm the sense of dignity of individual persons.

For instance, if we consider education, on which the Parties argued extensively, we cannot deny the value of vernacular as the medium of instruction and the result thereof would be separate schooling as between children of diverse population groups, particularly between the Whites and the Natives. In this case separate education and schooling may be recognized as reasonable. This is justified by the nature of the matter in question. But even in such a case, by reason of the matter which is related to a delicate racial and ethnic problem, the manner of dealing with this matter should be extremely careful. But, so far as the public use of such facilities as hotels, buses, etc., justification of discriminatory and separate treatment by racial groups cannot be found in the same way as separation between smokers and non-smokers in a train.

We cannot condemn all measures derived from the Respondent's policy of apartheid or separate development, particularly as proposed by the Odendaal Commission, on the ground that they are motivated by the racial concept, and therefore devoid of the reasonableness. There may be some measures which are of the same character as we see in the protection measures in the case of the minorities treaties and others. We cannot approve, however, all measures constituting a kind of different treatment of apartheid policy as reasonable.

One of the characteristics of the policy of apartheid is marked by its restrictive tendency on the basis of racial distinction. The policy includes on the one hand protective measures for the benefit of the Natives as we see in the institutions of reserves and homelands connected with restrictions on land rights; however, on the other hand, several kinds of restrictions of rights and freedoms are alleged to exist regarding those Natives who live and work in the southern sector, namely the White area outside the reserves. These restrictions, if they exist, in many cases presenting themselves as violation of respective human rights and freedoms at the same time, would constitute violation of the principle of equality before the law (particularly concerning the discrimination between the Natives and the Whites).

***
Here we are not required to give answers exhaustively in respect of the Applicants' allegations of violation by the Respondent of the Mandate concerning the legislation (largo sensu) applicable in the Territory. The items enumerated by the Applicants in the Memorials (pp. 118-166) are not included in their submissions. We are not obliged to pronounce our views thereon. By way of illustration we shall examine [p 311] a few points. What is required from us is a decision on the question of whether the Respondent's policy of apartheid constitutes a violation of Article 2, paragraph 2, of the Mandate or not.

For the purpose of illustration we shall consider freedom of choice of occupations (cf. Memorials, pp. 121, 122 and 136).

In the field of civil service, participation by "Natives" in the general administration appears, in practice, to be confined to the lowest and least-skilled categories, such as messengers and cleaners. This practice of "job-reservation" for Natives is exemplified by allusion to the territorial budget, which classifies jobs as between "European" and "Natives".

In the mining industry the Natives are excluded from certain occupations, such as those of prospector for precious and base minerals, dealer in unwrought precious metals, manager, assistant manager, sectional or underground manager, etc., in mines owned by persons of "European" descent, officer in the Police Force. Concerning these occupations, "ceilings" are put on the promotion of the Natives. The role of the "Native" is confined to that of unskilled labourer.

In the fishing industry, the enterprises are essentially "European" owned and operated. The role of the "Native" is substantially confined to unskilled labour (Memorials, p. 119).

As regards railways and harbours, all graded posts in the Railway and Harbours Administration are reserved to "Europeans", subject to temporary exceptions. The official policy appears to be that "non-Europeans" should not be allowed to occupy graded posts.

The question is whether these restrictions are reasonable or not, whether there is a necessity to establish exceptions to the general application of the principle of equality or non-discrimination or not.

The matter of "ceilings" was dealt with minutely and at length in the oral proceedings by the Parties. The Respondent's defence against the condemnation of arbitrariness, injustice and unreasonableness on the part of the Applicants may be summarized in two points: the one is the reason of social security and the other is the principle of balance or reciprocity.

The Respondent contends that the Whites in general do not desire to serve under the authority of the Natives in the hierarchy of industrial or bureaucratic systems. If this fact be ignored and the Natives occupy leading positions in which they would be able to supervise Whites friction between the two groups necessarily would occur and the social peace would be disturbed. This argument of the Respondent seems to be based on a pessimistic view of the possibility of harmonious coexistence of diverse racial and ethnic elements in an integrated Society. [p 312]

It is not deniable that there may exist certain causes of friction, conflict and animosity between diverse racial and ethnic groups which produce obstacles to their coexistence and Co-operation in a friendly political community. We may recognize this as one aspect of reality of human nature and social life. It is, however, no less true that mankind aspires and strives towards the ideal of the achievement of a harmonious Society composed of racially heterogeneous elements over-coming difficulties which may result from the primitive instinctive sentiment of racial prejudice and antagonism. Such sentiment must be overcome and not approved. In modern, democratic societies we have to expect this result mainly from the progress of humanitarian education. But the mission of politics and law cannot be said to be less important in minimizing racial prejudice and antagonism and avoiding collapse and tragedy. The State is obliged to educate the people by means of legislative and administrative measures for the same purpose.

To take into consideration the psychological effect upon the Whites who would be subjected to the supervision of the Natives if a ceiling did not exist, that is nothing else but the justification or official recognition of racial prejudice or sentiment of racial superiority on the part of the White population which does harm to the dignity of man.

Furthermore, individuals who could have advanced by their personal merits if there existed no ceiling are unduly deprived of their opportunity for promotion.

It is contended by the Respondent that those who are excluded from the jobs proportionate to their capacity and ability in the White areas, can find the same jobs in their own homelands where no restriction exists in regard to them. But even if they can find jobs in their homelands the conditions may not be substantially the same and, accordingly, in most cases, they may not be inclined to go back to the northern sector, their homelands, and they cannot be forced to do so.

The Respondent probably being aware of the unreasonableness in such hard cases, tries to explain it as a necessary sacrifice which should be paid by individuals for the maintenance of social security. But it is unjust to require a sacrifice for the sake of social security when this sacrifice is of such importance as humiliation of the dignity of the personality.

The establishment of ceilings in regard to certain jobs violates human rights of the Natives in two respects: one is violation of the principle of equality before the law and equal opportunity; the other is violation of the right of free choice of employment.

The Respondent furthermore advocates the establishment of ceilings by the principle of reciprocity or balance between two legal situations, namely one existing in the White areas where certain rights and freedoms of the Natives are restricted and the other situation existing in the Native areas where the corresponding rights and freedoms of the Whites [p 313] are restricted. The Respondent seeks to prove by this logic that in such circumstances the principle of equality of the Whites and the Natives is observed. Unequal treatment unfavourable to one population group in area A, however, cannot be justified by similar treatment of the other population group in area B. Each unequal treatment constitutes an independent illegal conduct; the one cannot be counter-balanced by the other, as set-off is not permitted between two obligations resulting from illegal acts.

Besides, from the viewpoint of group interest, those of the Natives living in the White area outside the reserves are, owing to the number of the Native population, far bigger than those of the Whites living in the Native areas, the idea of counter-balance is quantitatively unjust.

It is also maintained, in respect of the restrictive policy as regards study to become an engineer by a non-White person, that the underlying purpose of this policy is to prevent the frustration on the part of the individual which he might experience when he could not find White assistants willing to serve under him. The sentiment of frustration on the part of non-White individuals, however, should not be rightly referred to as a reason for establishing a restriction on the educa-tional opportunity of non-Whites, firstly because the question is that the frustration is caused by the racial prejudice on the part of the Whites which in itself must be eliminated and secondly because a more important matter is to open to the non-Whites the future possibility of social promotion. Therefore, the reason of the frustration of non-Whites cannot be justified.

***

Finally, we wish to make the following conclusive and supplementary remarks on the matter of the Applicants' Submissions Nos. 3 and 4.

1. The principle of equality before the law requires that what are equal are to be treated equally and what are different are to be treated differently. The question arises: what is equal and what is different.

2. All human beings, notwithstanding the differences in their appearance and other minor points, are equal in their dignity as persons, Accordingly, from the point of view of human rights and fundamental freedoms, they must be treated equally.

3. The principle of equality does not mean absolute equality, but recognizes relative equality, namely different treatment proportionate to concrete individual circumstances. Different treatment must not be given arbitrarily; it requires reasonableness, or must be in conformity with justice, as in the treatment of minorities, different treatment of the sexes regarding public conveniences, etc. In these cases, the differentiation is aimed at the protection of those concerned, and it is not detrimental and therefore not against their will. [p 314]

4. Discrimination according to the criterion of "race, colour, national or tribal origin" in establishing the rights and duties of the inhabitants of the territory is not considered reasonable and just. Race, colour, etc., do not constitute in themselves factors which can influence the rights and duties of the inhabitants as in the case of sex, age, language, religion, etc. If differentiation be required, it would be derived from the difference of language, religion, custom, etc., not from the racial difference itself. In the policy of apartheid the necessary logical and material link between difference itself and different treatment, which can justify such treatment in the case of sex, minorities, etc., does not exist.

We cannot imagine in what case the distinction between Natives and Whites, namely racial distinction apart from linguistic, cultural or other differences, may necessarily have an influence on the establishment of the rights and duties of the inhabitants of the territory.

5. Consequently, the practice of apartheid is fundamentally unreasonable and unjust. The unreasonableness and injustice do not depend upon the intention or motive of the Mandatory, namely its mala fides Distinction on a racial basis is in itself contrary to the principle of equality which is of the character of natural law, and accordingly illegal.

The above-mentioned contention of the Respondent that the policy of apartheid has a neutral character, as a tool to attain a particular end, is not right. If the policy of apartheid is a means, the axiom that the end cannot justify the means can be applied to this policy.

6. As to the alleged violation by the Respondent of the obligations incumbent upon it under Article 2, paragraph 2, of the Mandate, the policy of apartheid, including in itself elements not consistent with the principle of equality before the law, constitutes a violation of the said Article, because the observance of the principle of equality before the law must be considered as a necessary condition of the promotion of the material and moral well-being and the social progress of the inhabitants of the territory.

7. As indicated above, so far as the interpretation of Article 2,paragraph 2, of the Mandate is concerned, only questions of a legal nature belong to the matter upon which the Court is competent. Diverse activities which the Respondent as Mandatory carries out as a matter of discretion, to achieve the promotion of the material and moral well-being and the social progress of the inhabitants, fall outside the scope of judicial examination as matters of a political and administrative nature.

Accordingly, questions of whether the ultimate goal of the mandates system should be independence or annexation, and in the first alternative whether a unitary or federal system in regard to the local administration is preferable, whether or in what degree the principle of indirect rule or [p 315] respect for tribal custom may or must be introduced—such questions, which have been very extensively argued in the written proceedings as well as in the oral proceedings, have, despite their substantial connection with the policy of apartheid, no relevance to a decision on the question of apartheid, from the legal viewpoint.

These questions are of a purely political or administrative character, the study and examination of which might have belonged or may belong to competent organs of the League or the United Nations.

8. The Court cannot examine and pronounce the legality or illegality of the policy of apartheid as a whole; it can decide that there exist some elements in the apartheid policy which are not in conformity with the principle of equality before the law or international standard or international nom of non-discrimination and non-separation. The Court can declare if it is requested to examine the laws, proclamations, ordinances and other governmental measures enacted to implement the policy of apartheid in the light of the principle of equality. For the purpose of the present cases, the foregoing consideration of a few points as illustrations may be sufficient to establish the Respondent's violation of the principle of equality, and accordingly its obligations incumbent upon it by Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant.

9. Measures complained of by the Applicants appear in themselves to be violations of some of the human rights and fundamental freedoms such as rights concerning the security of the person, rights of residence, freedom of movement, etc., but such measures, being applied to the "Natives" only and the "Whites" being excluded therefrom, these violations, if they exist, may constitute, at the same time, violations of the principle of equality and non-discrimination also.


In short, we interpret the Applicants' Submissions Nos. 3 and 4 in such a way that their complaints include the violation by the Respondent of two kinds of human rights, namely individual human rights and rights to equal protection of the law. There is no doubt that the Respondent as Mandatory is obliged to protect all human rights and fundamental freedoms including rights to equal protection of the law as a necessary prerequisite of the material and moral well-being and the social progress of the inhabitants of the Territory. By this reason, what has been explained above about the principle of equality in connection with Article 38, paragraph 1 (c), is applicable to human rights and fundamental freedoms in general.

10. From the procedural viewpoint, two matters must be considered. The one is concerned with the effect of the Applicants' amendment of the Submissions Nos. 3 and 4 (Memorials, 15 April 1961, pp. 197-199) by the submissions of 19 May 1965 (C.R. 65/35). Since the amendment of the submissions is allowed until the stage of oral proceedings, and the amendment was made within the scope of the claim set forth in the Applications, there is no reason to deny its effectiveness. Furthermore, [p 316] we wish to mention that the Respondent raised no objection during the course of the oral proceedings regarding the amendment.

The other is concerned with the question of choice by the Court of the reasons underlying its decisions.

Concerning this question, we consider that, although the Court is bound by the submissions of the Parties, it is entirely free to choose the reasons for its decisions. The Parties may present and develop their own argument as to the interpretation of the provisions of the Mandate, the Covenant, the Charter, etc., but the Court, so far as legal questions are concerned, quite unfettered by what has been put forward by the Parties, can exercise its power of interpretation in approving or rejecting the submissions of the Parties.

For the foregoing reasons, the Applicants' Submissions Nos. 3 and 4 are well-founded.

V

We shall now examine the Applicants' other submissions one by one.

Final Submission No. 5 alleges that the—

"Respondent, by word and by action, has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory; that such treatment is in violation of Respondent's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forthwith to cease such actions, and to refrain from similar actions in the future; and that Respondent has the duty to accord full faith and respect to the international status of the Territory;" (C.R. 65/35, p. 70).

The Respondent's acts alleged to be inconsistent with the international status of the Territory are as follows (Memorials, Chap. VIII, pp. 189-194):

(a) General conferral of Union citizenship upon inhabitants of the Territory.

(b) Inclusion of representatives from South West Africa in the Union Parliament.
(c) Administrative separation of the Eastern Caprivi Zipfel from the Territory.

(d) The vesting of South West Africa Native Reserve Land in the South Africa Native Trust and the transfer of administration of "Native" affairs to the Union's Minister of Bantu Administration and Development.

Concerning (a): that the status of the Native inhabitants of a mandated territory is distinct from that of the nationals of the mandatory power, and, therefore, that the Native inhabitants are not invested with the nationality of the mandatory Power by reason of the protection extended [p 317] to them, was made clear by a resolution of 23 April 1923 of the Council of the League of Nations. (League of Nations, Official Journal, 1923, p. 604; cited in Memorials, p. 190.) This is the natural consequence of the fact that sovereignty does not rest with a mandatory Power and that it possesses no sovereign power over the mandated territory and the inhabitants.

Concerning South West Africa, the question of the status of the inhabitants had been regulated by an Act of 1926 (No. 18 of 1926) and an Act of 1927 (No. 40 of 1927), which were repealed in 1949 by the Act at present in force—the South African Citizenship Act, 1949 (No. 44 of 1949). By the latter Act, under section 2 (2), inhabitants of South West Africa who were born there and were domiciled there automatically became citizens of the Union by virtue of their place of birth.

Of course the individual inhabitants of the Territory can voluntarily obtain naturalization from the mandatory Power. But the compulsory mass conferment of the Respondent's citizenship, having regard to the spirit of the Mandate and the international status of the mandated territory, cannot be justified. The Respondent may find it difficult to defend itself against the charge of possessing the avowed intention of piece-meal incorporation amounting to de facto annexation.

The effect of the general conferment of Union citizenship upon the inhabitants of the Territory does not remain a purely theoretical one. It may have an important significance in the matter of the right of the inhabitants to address petitions to the United Nations Organization. If the general conferment be valid and if the inhabitants of the Territory acquire citizenship of the Union, they would lose the right of petition to the United Nations which they have had, and their right of petition —being the subject's right—could only be exercised against the highest legislative and administrative authority in the land, namely South Africa.

We consider that the act of the general conferment of Union citizenship upon the inhabitants of the Territory, being inconsistent with the international status of the Territory, goes beyond the scope and limit of the discretionary power recognized by Article 2, paragraph 1, of the Mandate and that Article 2, paragraph 1, of the Mandate, which stipulates that "... the Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa to the territory" (italics added), cannot be interpreted to justify such general conferment of Union citizenship. The reason for this is supposed to be that this provision recognizes such power in respect of administrative and legislative matters in the 'C' mandate because of the technical consideration of expediency and economy whilst not allowing highly political acts which may affect the international status of the Territory.

Concerning (b): the South West Africa Amendment Act (Act No. 23 [p 318] of 1949) provides for the inclusion of elected representatives from South West Africa in both the Senate and the House of Assembly of the Union Parliament. The same Act, in addition to deleting all references to the Mandate as such from the Union Statutes, makes no distinction between the representatives of the Territory and those elected from the provinces of the Union. The representatives of the Territory possess the same right to speak and to vote on matters regarding the Union also.

Apart from the question of the discriminatory policy of the Union concerning the election of the territorial representatives, namely election only by "Europeans", we are unable to overlook the important significance of the fact of the inclusion of elected South West African representatives. This amendment does not appear to come within the Mandatory's "power of administration and legislation over the territory .. . as an integral portion of the Union of South Africa" (Article 2, paragraph 1); it means far more than a simple administrative measure which, as providing for treatment as an integral portion of the Union, is permitted by the said provision; it is an act of a constitutional nature which influences both South Africa and the Territory of South West Africa, which particularly affect> the international status of the Territory as "an important step towards the political integration of the Territory into the Union" (Report of the Committee on South West Africa, U.N., G.A., O.R., 11th Sess. Supp. No. 12 at 8 (A/3151) (1956), cited in the Memorials, pp. 192 and 193), and which implies the incorporation into South Africa of the Territory of South West Africa as a fifth province.

Therefore, the Respondent cannot justify the inclusion of the representatives from South West Africa by referring to the phrase "as an integral portion of the Union" in Article 2, paragraph 1, of the Mandate. The act of the Respondent is inconsistent with the international status of the Territory recognized by the provisions of Article 22 of the Covenant as well as by the Mandate for South West Africa.

Concerning (c): heading (c) is concerned with the question of the administrative separation of the Eastern Caprivi Zipfel from the Territory. This part of the Territory of South West Africa, a narrow strip in the north-eastern corner of the Territory, has been subject to frequent change in the mode of its administration since the inception of the Mandate on South West Africa. The main reason thereof lies in geographical factors, namely the remoteness of this region from the administrative centre of the Territory, Windhoek, and the difficulties of access to it.

In 1939, the Union enacted Proclamation No. 147, transferring administration of the Eastern Caprivi Zipfel from the Administrator of South West Africa to the Union directly. In 1955 the report of the Committee on South West Africa condemned this separation as a violation of the Mandate, the main reason thereof appears to be that—[p 319]

". .. such a separation is likely to prejudice consideration (b) of the 'General Conditions' which must be fulfilled before the Mandate régime can be brought to an end in respect of the countries placed under that régime, approved by the Council of the League on 4 September 1931, namely, that 'It [the territory] must be capable of maintaining its territorial integrity and political independence' ". (Report of the Committee on South West Africa, U.N. G.A., O.R., 10th Sess., Supp. No. 12 at p. 10 (A/2913), 1955, cited in the Memorials, pp. 193 and 194.)

We cannot deny that geographical factors can play an important role in determining systems and measures of administration. We consider that the phrase "subject to such local modifications as circumstances may require" (Article 2, paragraph 1, of the Mandate) can be referred to in considering this kind of issue and that the decision of existence or otherwise of the necessity for the separate administration of this area comes entirely within the discretionary power of the Mandatory conferred on him by the said provision of the Mandate. Furrhermore, we consider that the administrative separation, being in itself of a technical nature, cannot have an effect detrimental to what the "General Conditions" would expect to be realized.

Accordingly, the Applicants' contention on this matter is not well-founded.

Concerning (d): this heading includes two points. As to the first point, apart from the possibility of consideration from the angle of Article 2, paragraph 2, particularly as regards the policy of apartheid or separate development, the vesting of South West Africa Native Reserve Land in the South African Native Trust is a measure which is of an administrative nature and in which economic considerations are predominant; therefore, it has nothing to do with the international status of the Territory. It belongs to matters within the discretionary power of the Respondent as Mandatory, as in the case of (c). Concerning the second point, namely "the transfer of administration of 'Native' affairs to the Union's Minister of Bantu Administration and Development", we have only to refer to what has been said on (c) and the first point of(d).

For the above-mentioned reasons the Applicants' contention under (d) is not well-founded.

***
In the submissions (original as well as final) the Applicants state that the Respondent continued to have the obligation to transmit petitions from the inhabitants of the Territory (Submission No. 2) and that the Respondent has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of its obligations as [p 320] Mandatory and that the Respondent has the duty to transmit such petitions to the General Assembly (Submission No. 8).

There is no provision on petitions either in Article 22 of the Covenant or in the Mandate. The only legal basis for the reference made by the Applicants is the Rules adopted by the Council of the League of Nations on 31 January 1923, relating to petitions from mandated territories. The mandates after the First World War did not mention the right of petition, the reason being that this right was "regarded as a natural concomitant of the system established by the Covenant ... The receipt and examination of petitions became subsequently one of the main features of the system of mandates" (Sir Hersch Lauterpacht, International Law and Human Rights, 1950, pp. 244-245). If there were no guarantee through the recognition of a right of petition, the fulfillment of the protection of human rights and fundamental freedoms in general and in the mandates might be illusory. This right is inherent in the concept of the body politic and other political institutions. Even if the right of petition is not based upon any legal provision, it is "in a sense a natural right" (Duncan Hall, Mandates, Dependencies and Trusteeship, 1948, p. 198). In this sense the above-mentioned "League of Nations Rules" and the provision of the Charter concerning the competence of the Trusteeship Council (Article 87 (b)) have no more than a confirmatory meaning.

The right of petition entails the obligation of the Mandatory to transmit petitions to the supervisory organ for acceptance and examination. In this respect, what is said about the survival of international supervision, despite the dissolution of the League and the replacement of the Council of the League by the General Assembly as the supervisory organ, can be applied to the right of petition.

From what is stated above, it can be concluded that the obligation of the Mandatory to transmit to the General Assembly petitions from the inhabitants of the Territory exists; therefore Submission No. 2 concerning petitions is well-founded.

Next, it is clear from the pleadings and oral hearing that the Respondent has failed to comply with this obligation; accordingly, Submission No. 8 is well-founded.

***
The Applicants' Final Submission No. 6 reads as follows:

"Respondent has established military bases within the Territory in violation of its obligation as stated in Article 4 of the Mandate and Article 22 of the Covenant; that Respondent has the duty forthwith to remove all such military bases from within the Territory; and that Respondent has the duty to refrain from the establishment of military bases within the Territory."

Article 4 of the Mandate based on a part of Article 22 (5) provides: [p 321]

"The military training of the natives other than for purposes of internal police and the local defence of the Territory, shall be prohibited. Furthermore, no military or naval bases shall be established or fortifications erected in the Territory."

The second sentence of Article 4 characterizes the status of the mandated territory concerning militarization. It declares the military neutralization of the Territory by prohibiting the establishment of military or naval bases or the erection of fortifications. The Mandatory is not permitted to utilize the Territory, by means of bases or fortifications, for military purposes. This is a limitation imposed upon the authority of the Mandatory concerning the material element of the military functions which may be exercised by the Mandatory.

The first sentence of Article 4 of the Mandate prohibits the military training of the Natives. It may be said that the spirit of this provision is to be found in a humanitarian consideration, namely the prohibition of the militaristic exploitation of the indigenous population.

However, the prohibition of the military training of the Natives is not absolute; the military training of the Natives for the purposes of internal police and the local defence of the Territory is permissible. The reason thereof may be that the internal police and the local defence are not related to the humanitarian idea of this provision.

The first sentence of Article 4 refers only to the training of Natives; it remains silent on that of White people. Accordingly, it is doubtful whether military training in general or at least for the purposes of internal police and local defence is permissible.

That the training of Whites for the purposes of internal police and local defence is not to be deemed to be prohibited, can be assumed from the fact that the provision relates only to Natives and that there is no reason to prohibit the training of Whites for the purposes of internal police and local defence from the viewpoint of the military neutralization of the Territory.

Nevertheless, the question is whether military training otherwise than for the purposes of internal police and local defence is also permissible for the Whites. We consider that the provision aiming at the protection of Natives is not concerned with Whites, and that the military training of Whites in general is not inconsistent with the principle of neutralization of the Territory. This principle must be considered as not inconsistent with the Respondent's right and duty to defend the Territory in the event of its being attacked.

Such right and duty must be performed and exercised within the limit prescribed by Article 4, namely without establishing military bases and without erecting fortifications. Within this limit the Respondent is considered to be permitted to maintain facilities for the training of non-Natives in the Territory.

A few points must be clarified relating to the arguments between the Parties. As to whether the military bases must be related to aggressive designs or not, the conclusion must be in the negative. The Court must [p 322] decide the question objectively; it is not concerned with the examination of the Respondent's motive for establishing military bases.

The question whether a common feature of a military base is that a base is something utilized by a force, or an army for the purposes of operations or for a campaign or not, must be answered in the affirmative in the sense that the prohibition has a practical meaning mostly in time of peace and that the purposes of operations or of a campaign are inherent in the potential meaning. The question whether the place in the Respondent's administrative hierarchy and chain of command determines that it is a military base or not, must be answered in the negative. The question of administrative hierarchy and command can have no bearing on the substantive character of a military base.

As to the Applicants' submission, it is the military bases alleged to be established in the Territory by the Respondent that are in question, not the military training of the Natives. The Applicants allege that the Respondent maintains three military bases within the Territory, which are the Regiment Windhoek, a military landing ground in the Swakopmund District of South West Africa and "at least one military facility in or near the Kaokoveld" in part of the Territory.

The Applicants, however, presented no direct evidence to establish their charge. Their charge was based simply on "information and belief" (Memorials, p. 181) on which the Applicants refrained from calling evidence on the part of their informants. On the contrary, the Respondent produced direct evidence in contradiction of the evidence of the Applicants based on information and belief. Testimony given by a witness-expert, who made inspection of the three places in September 1965 and who was presented by the Respondent at the oral proceedings, made upon us a strong impression of the absence of any military base at the three places mentioned above. On the other hand, the Applicants neither produced any evidence in contradiction thereof nor disputed it in cross-examination.

On the evidence before the Court the Respondent did not establish any military or naval bases in the Territory. Therefore, Applicants' Submission No. 6 is not well-founded.

***
The Applicants' Submission No. 9 reads as follows:

"Respondent has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition precedent to attempts on the part of Respondent directly or indirectly to modify the terms of the Mandate." [p 323]

The answer to this question depends upon the nature of Article 7 (1) of the Mandate. Does this provision declare the prohibition of unilateral modification of the Mandate by the Respondent in view of the contractual nature of the Mandate or does it impose some duty upon the Respondent to abstain from conduct contrary to the provisions of the Mandate?

In Our view Article 7 (1) must be interpreted in the sense of the first alternative. This provision simply defines a condition for the modification or amendment of the terms of the Mandate, namely the consent of the Council of the League of Nations. This provision is of a purely procedural nature. Its non-observance merely produces the effect that the modification cannot take place.

The Applicants' charge in the Applications rested on the fact that the Respondent had substantially modified the terms of the Mandate and also had attempted to do so and, in the Memorials, that the Respondent attempted to modify the terms of the Mandate.

Whether the alleged conduct of the Respondent is the modification or the attempts to modify, the result is the same.

Modification is impossible so long as the consent of the United Nations is lacking. Since the attempts presuppose the possibility of modification, they are also impossible without the consent of the United Nations.

The facts relied upon by the Applicants to establish the attempts by the Respondent to modify the Mandate are not specified in Final Submission No. 9, but they are referred to in Chapters V, VI, VII and VIII of the Memorials (Submission No. 9). Chapters V, VI and VIII deal with alleged violations of Article 2 of the Mandate and Chapter VII deals with alleged violations of Article 4 of the Mandate.

If the alleged violation of these Articles exists, the violation is simply concerned with the individual provisions and not with Article 7, paragraph 1.

A few additional remarks may be made on this Article of the Mandate.

The prohibition of unilateral modification exists not only in regard to the Mandatory but in regard to the League of Nations also.

Article 7, paragraph 1, possesses essential meaning for the surviving Mandate after the dissolution of the League just as does Article 6 in regard to administrative supervision. The General Assembly of the United Nations was therefore substituted for the Council of the League.

So long as the Mandate survives on an institutional basis after the dissolution of the League, the necessity for the future amendment of the Mandate by consent of both parties does subsist. In this sense the contractual element is recognized as remaining together with the institutional elements.

Moreover, this claim of the Applicants, namely that an attempt to [p 324] modify the terms of the Mandate is a breach of Article 7, paragraph 1, can be recognized as part of the dispute between the Parties which existed prior to the Application in the sense that the claim constitutes a development of the same dispute.

For the reason indicated above, the Applicants' Submission No. 9 is not well-founded.

(Signed) Kotaro Tanaka.

[p 325] DISSENTING OPINION OF JUDGE JESSUP

Section I. Introductory

Having very great respect for the Court, it is for me a matter of profound regret to find it necessary to record the fact that I consider the Judgment which the Court has just rendered by the casting vote of the President in the South West Africa case, completely unfounded in law FN1. In my opinion, the Court is not legally justified in stopping at the threshold of the case, avoiding a decision on the fundamental question whether the policy and practice of apartheid in the mandated territory of South West Africa is compatible with the discharge of the "sacred trust" confided to the Republic of South Africa as Mandatory.

--------------------------------------------------------------------------------------------------------------------FN1 In my view, whenever the Court renders judgment in accordance with its Statute, the judgment is the judgment of the Court and not merely a bundle of opinions of individual judges. This is equally true when, in accordance with Article 55 of the Statute, the judgment results from the casting vote of the President. I do not consider it justifiable or proper to disparage opinions or judgments of the Court by stressing the size of the majority. If the Court followed the prevailing European system, the size of the majority would not be known. Throughout this opinion I shall refer to the judgment of the Court, and not to the opinion of seven of its members. Of course this is not to say that there is any impropriety in comments by a member of the Court on views expressed in the separate concurring or dissenting opinions of present or past members of the Court.
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Since it is my finding that the Court has jurisdiction, that the Applicants, Ethiopia and Liberia, have standing to press their claims in this Court and to recover judgment, I consider it my judicial duty to examine the legal issues in this case which has been before the Court for six years and on the preliminary phases of which the Court passed judgment in 1962. This full examination is the more necessary because I dissent not only from the legal reasoning and factual interpretations in the Court's Judgment but also from its entire disposition of the case. In regard to the nature and value of dissenting opinions, I am in complete agreement with the views of a great judge, a former member of this Court—the late Sir Hersch Lauterpacht—who so often and so brilliantly contributed to the cause of international law and justice his own concurring or dissenting opinions; I refer to section 23 of his book, The Development of International Law by the International Court, 1958. He quotes, with evident approval (in note 10 on p. 66), the "clear expression" of Charles Evans Hughes who was a member of the Permanent Court of Inter-national Justice and later Chief Justice of the United States: "A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to [p 326] have been betrayed." It is not out of disrespect for the Court, but out of respect for one of its great and important traditions, that, when necessary, I express my disagreement with its conclusions. It is the first time since I have been a member of the Court that I have found it necessary to dissent.

The Court's Judgment rests, as it must, on an interpretation of historical facts involved in the origin and in the operation of the mandates system of the League of Nations, in the setting of their period. Since my own study of the historical record, both of the time of the Paris Peace Conference and subsequently through the years up to 1939, leads me to believe that the Judgment misconceives the nature of the peace settlements at the close of World War 1, the nature and functioning of the League of Nations, and the nature and functioning of the mandates system, I must expound my conclusions on these matters.

The Court's Judgment says that it "must decline to give effect" to the claims of the Applicants; this conclusion naturally rests on the Court's analysis of what those claims are. Since I interpret differently the nature of Applicants' claims and submissions, I must show wherein my interpretation differs, having regard to their character and context. Only when those matters are properly understood, is it possible for me to reach a judicial conclusion whether Applicants have the legal right or interest to entitle them to receive from the Court what they request, or any part of what they request.

The Judgment bases itself on a reason not advanced in the final submissions of the Respondent—namely on Applicants' lack of "any legal right or interest appertaining to them in the subject-matter of the present claims". This is said to be a question of the "merits" of the claim and it is therefore in connection with the "merits" that the nature of the requisite legal right or interest must be analysed.

The Judgment states that the—

"... same instruments are relevant to the existence and character of the Respondent's obligations concerning the Mandate as are also relevant to the existence and character of the Applicants' legal right or interest in that regard. Certain humanitarian principles alleged to affect the character of the Mandatory's obligations in respect of the inhabitants of the mandated territory were also pleaded as a foundation for the right of the Applicants to claim in their own individual capacities the performance of those same obligations. The implications of Article 7, paragraph 1, of the Mandate ... require to be considered not only in connection with paragraph 9 and certain aspects of paragraph 2 of the Applicants' final submissions, but also, as will be seen in due course, in connection with that of the Applicants' standing relative to the merits of the case. The question of the position following upon the dissolution of [p 327] the League of Nations in 1946 has the same kind of double aspect, and so do other matters."

If—as is the case—my analysis of these "same instruments", "principles" and "the position following upon the dissolution of the League of Nations", leads me to a conclusion different from that reached by the Court, I must, with all respect, explain my chain of reasoning and why it leads me to the conclusion that the Applicants do have the requisite "legal right or interest".

At the same time it must be stated that there are aspects of the manifold issues, both procedural and substantive, presented in this case, which cannot be disposed of in a dissenting opinion, as, for example, a detailed appraisal of the relevance and materiality of all of the testimony of the 14 witnesses. Since the Court does not reach such issues as these, which were not and could not be definitively resolved during the course of the oral proceedings, the record cannot be taken as having precedental authority.

This is the fifth time the Court has given consideration to legal matters arising out of the administration by the Republic of South Africa of the mandated territory of South West Africa. In the course of three Advisory Opinions rendered in 1950, 1955 and 1956, and in its Judgment of 21 December 1962, the Court never deviated from its conclusion that the Mandate survived the dissolution of the League of Nations and that South West Africa is still a territory subject to the Mandate. By its judgment of today, the Court in effect decides that Applicants have no standing to ask the Court even for a declaration that the territory is still subject to the Mandate.

The case now decided by the Court was brought before the Court by Applications of Ethiopia and Liberia on 4 November 1960. The Court joined the two actions by an Order of 20 May 1961.
On 30 November 1961 the Respondent—the Government of South Africa—filed preliminary objections. The Applicants designated an ad hoc Judge and the Respondent did likewise. Oral arguments were heard on 2-5, 8-11, 15-17 and 19 and 22 October 1962.

In its Judgment of 21 December 1962 the Court decided that "it has jurisdiction to adjudicate upon the merits of the dispute".

In reaching that conclusion the Court had to reject the four preliminary objections filed by the Respondent. It did reject the four objections and thereby substantially held:

(1) that the Mandate for South West Africa is a "treaty or convention in force" within the meaning of Article 37 of the Statute of the Court;

(2) that despite the dissolution of the League, Ethiopia and Liberia had locus standi under Article 7, paragraph 2, of the Mandate, to invoke the jurisdiction of the Court;

(3) that the dispute between the Applicants and the Respondent was a "dispute" as envisaged in Article 7, paragraph 2, of the Mandate; and [p 328] (4) that the prolonged exchanges of differing views in the General Assembly of the United Nations constituted a "negotiation" within the meaning of Article 7, paragraph 2, of the Mandate and revealed that the dispute was one which could not be settled by negotiation within the meaning of that same provision of the Mandate.

Under Article 60 of the Statute of the Court, this Judgment of 1962 is "final and without appeal". Under Article 94, paragraph 1, of the Charter of the United Nations, both parties to the case were under a duty to comply with this decision of the Court.

After the 1962 Judgment, the Respondent filed its Counter-Memorial in ten volumes plus one supplementary volume. The Applicants in turn filed their Reply and the Respondent filed its Rejoinder in two volumes supplemented by other materials, including the so-called Odendaal Report of 557 printed foolscap pages.

Beginning on 15 March 1965, the Court devoted 99 public sessions to oral hearings which included the arguments of Agents and Counsel for both Parties and the testimony of 14 witnesses.

The voluminous record was studied by the Court and its deliberations were held over a period of some six months.

The Court now in effect sweeps away this record of 16 years and, on a theory not advanced by the Respondent in its final submissions of 5 November 1965, decides that the claim must be rejected on the ground that the Applicants have no legal right or interest.

The Applicants have not asked for an award of damages or for any other material amend for their own individual benefit. They have in effect, and in part, asked for a declaratory judgment interpreting certain provisions of the Mandate for South West Africa. The Court having decided in 1962 that they had standing (locus standi) to bring the action, they are now entitled to a declaratory judgment without any further showing of interest.

Allowing for the factual differences, the following passage from the separate opinion of Judge Sir Gerald Fitzmaurice in Northern Cameroons (I.C.J. Reports 1963, p. 99) is apt here:

"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." [p 329]

The learned Judge concluded his remarks on this particular point by saying:

"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." (Loc. cit., p. 100.)

The words which I have emphasized describe the situation in the instant South West Africa case.

Paragraph 2 of Article 7 of the Mandate gave a member of the League the right to submit to the Court a dispute relating to the interpretation of the provisions of the Mandate if the dispute cannot be settled by negotiation. As I shall show in more detail later, the Court in 1962 decided that the Applicants qualify in the category "Member of the League"; this is res judicata and the Court's Judgment of today does not purport to reverse that finding. The Court in 1962 equally held that the present case involves a dispute which cannot be settled by negotiation; this double finding has the same weight and today's decision does not purport to reverse that finding. I do not understand that it is denied that the dispute refers to the interpretation of provisions of the Mandate. I do not see how this clear picture can be clouded by describing the claims as demands for the performance or enforcement of obligations owed by the Respondent to the Applicants. The submissions may indeed involve that element also, as will be noted, but this element does not exclude the concurrent requests for interpretation of the Mandate.

Whether any further right, title or interest is requisite to support Applicants' requests in this case for orders by the Court directing Respondent to desist from certain conduct alleged to be violative of its legal obligations as Mandatory, may well be a separate question, but the Judgment of the Court denies them even the declaratory judgment. It may however be said that if the Court, properly seised, finds and declares that Respondent is violating its legal obligations in the administration of the Mandate, there is no reason in the Court's Statute or in general juridical principles, which would prevent it from ordering the Respondent to desist. But the Permanent Court and this Court have not usually framed their judgments in this fashion. Under the Statute of this Court, as already noted, the Court's judgment "is final and without appeal". By Article 94 of the Charter, "each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party". If the Court in its judgment holds that a certain line of conduct is in violation of a State's legal obligations, that State is under a duty to comply with [p 330] the decision by desisting from the illegal conduct. The Court should not act upon an assumption that a State Member of the United Nations would violate its obligation under Article 94. It may be recalled that in the very first judgment rendered by the Permanent Court of International Justice, it refused Applicants' request that it award "interim interest at a higher rate in the event of the judgment not being complied with at the expiration of the time fixed for compliance. The Court neither can nor should contemplate such a contingency." (S.S. Wimbledon, P.C.I.J., Series A, No. 1 (1923), p. 32.)

Since a dissenting opinion does not speak for the Court, there is no need for me to explore in detail the separate issue whether the Court, if it had reached the real merits of the case, should have granted requests to order Respondent to do or to cease to do certain things indicated in the submissions of the Applicants. Had the Court dealt with those matters, it would have had to consider a great deal of factual material. One of the clearest factual issues related to the sixth submission which alleged that Respondent had established military bases within the Territory; the testimony of one of Respondent's witnesses proved to my satisfaction that this charge of the Applicants was completely without foundation. In the fourth submission, Applicants make general reference to "economic, political, social and educational policies applied within the Territory by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein ...". In appraising this submission, the Court would, if it were considering issuing an order to cease and desist, have had to determine whether any changes had been introduced by the Respondent since the Applications in this case were filed with the Court on 4 November 1960. I do not pretend to make a finding on the evidence, but it appears to me probable that the Court would have found that Respondent, perhaps responsive to the general condemnation of its administration of South West Africa, has introduced numerous improvements and ameliorations. This does not mean that it has abandoned the policy of apartheid (which is covered by Applicants' Submission No. 3), nor does it mean that the Court, in a finding whether certain policies or measures were in conformity with the obligations of the Mandatory, could have overlooked the "critical date" which was the date of the filing of the Applications.

The Judgment of the Court today does not constitute a final binding judicial decision on the real merits of the controversy litigated in this case. In effect reversing its Judgment of 21 December 1962, it rejects the Applicants' claims in limine and precludes itself from passing on the real merits. The Court therefore has not decided, as Respondent submitted, "that the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations and that Respondent is, in consequence thereof, no longer subject to any legal obligations thereunder". [p 331]

Further, the Court has not decided, as submitted by the Respondent in the alternative, that the Mandatory's former obligations to report, to account and to submit to supervision had lapsed upon the dissolution of the League of Nations.

The Court has not rendered a decision contrary to the fundamental legal conclusions embodied in its Advisory Opinion of 1950 supplemented by its Advisory Opinions of 1955 and 1956 and substantially reaffirmed in its Judgment of 1962.
Even more important is the fact that the Court has not decided that the Applicants are in error in asserting that the Mandatory, the Republic of South Africa, has violated its obligations as stated in the Mandate and in Article 22 of the Covenant of the League of Nations. In other words, the charges by the Applicants of breaches of the sacred trust which the Mandate imposed on South Africa are not judicially refuted or rejected by the Court's decision.

Nevertheless, the reasoning of the Court and its conclusions on certain underlying questions of fact and of law, require an examination into aspects of all of these questions, as this opinion will demonstrate.

Section II. The Finality of the Court's Previous Pronouncements

The Judgment of 1962

I do not think it would be adequate to rest on the finalities of the 1962 Judgment of this Court. But I shall briefly indicate the legal principles which dictate attributing more authority to the prior decisions and opinions of this Court than the Court's present decision seems to reveal.

To dispel the fallacy that no decision on a preliminary objection can have finality, and as a preliminary matter of clarifying terminology, one may note that Article 94 (1) of the United Nations Charter uses the word "decision" in English and "décision" in French. In Article 94 (2) the terms are "judgment" and "arrêt"FN1*. In Article 63 (2) of the Court's Statute one finds "judgment" rendered in French as "sentence" and in Article 41 (2) of the Statute, "decision" is "arrêt" in French. In the Rules of Court, No. 64 (6) speaks of a "decision ... in the form of a judgment" (la Cour statue sur la requête par un arrêt). The same expressions in both languages are found in Article 81 of the Rules. In Rule 62 (5), [p 332] dealing with preliminary objections, the English text speaks of a "decision" and the French text again uses "statue". The "decision" (to use the term in Article 26 (5) of the Rules), of 21 December 1962 is labelled a "judgment" and recites at the outset (p. 321) that the Court "delivers the following Judgment" ("arrêt"). This use of the term "judgment" ("arrêt") is found in every ruling of the Court on a preliminary objection, beginning with the Corfu Channel case (I.C.J. Reports 1947-1948, p. 15) down through Barcelona Traction (I.C.J. Reports 1964, p. 6). After analysing passages in the Asylum case, Rosenne writes (The Law and Practice of the International Court, 1965, Vol. II, p. 627):

--------------------------------------------------------------------------------------------------------------------FN1* Article 94 of the Charter:

"1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."
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"This, it is submitted, leads to the conclusion that the word 'decision' (décision) appearing in Article 59 of the Statute is identical in meaning with the word 'judgment' (arrêt) appearing in Article 60, and refers not merely to the operative clause (dispositif) of the judgment, but to its reasons as well. This is clearly the case as regards the meaning of the word 'judgment' (sentence) appearing in Article 63."

There is no clear distinction between "decision" and "judgment"— the terms can be used interchangeably. Accordingly, after 21 December 1962, some obligation with respect to the judgment of that date must have rested upon Applicants and Respondent under Article 94 (1) of the Charter. I shall consider below with what either Party was now obliged "to comply" (à se conformer). Under Article 60 of the Statute, the Judgment of 21 December 1962 was "final and without appeal" although (under Article 59) it "has no binding force except between the parties and in respect of that particular case". Within the meaning of Article 59, the present proceedings are in "that particular case". The words in Article 60 "without appeal" clearly refer only to the parties; if they are dissatisfied with the judgment, they may seek a revision under Article 61 of the Statute if they are able to satisfy the conditions stated in that Article. The word in Article 60, "final", may have a broader significance and may address itself to the Court as well as to the parties. Since Respondent has not proceeded in accordance with Article 78 ff. of the Rules of Court, and has not avowedly sought a "revision" of the 1962 Judgment I do not consider that there is before the Court a case under Article 61 of the Statute, despite Respondent's arguments about "new facts" (with which I shall deal later).

The statement in Article 60 of the Statute that "the judgment is final and without appeal", taken in conjunction with the reference in Article 59 to "that particular case", constitutes a practical adoption in the Statute of the rule of res judicata, a rule, or principle, cited in the proceed-[p 333]
ings of the Commission of Jurists which drafted the Statute of the Permanent Court of International Justice in 1920, as a clear example of "a general principle of law recognized by civilized nations". It rests upon the maxim interest rei publicae ut sit jinis litium, or in an alternate form, interest reipublicae res judicatas non rescindi. Judge Anzilotti, in what has been called "the classic enunciation of the law" (Rosenne, op. cit., p. 624) listed as the essentials for the application of the res judicata principle, identity of parties, identity of cause and identity of object in the subsequent proceedings—“persona, petitum, causa petendi". (Interpretation of Judg-ments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11 ,1927, P.C.I.J., Series A, No. 13, pp. 23-27.) These essentials are found in the matter before us. This leads again to the conclusion that something must have been finally decided by the 1962 Judgment.

But the rule in Article 60 of the Statute "cannot ... be considered as excluding the tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered ...". (Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 47 at p. 55.) Moreover, the Court is always free, sua sponte, to examine into its own jurisdiction.

Various pronouncements in the jurisprudence of the two Courts, in various separate opinions and in the "teachings of the most highly qualified publicists" do not provide an automatic test to determine what is within and what is without the res judicata rule. I agree with Anzilotti in the opinion already cited (at p. 24):

"When I Say that only the terms of a judgment (le dispositif de l'arrêt) are binding, I do not mean that only what is actually written in the operative part (dispositif) constitutes the Court's decision. On the contrary, it is certain that it is almost always necessary to refer to the statement of reasons to understand clearly the operative part and above all to ascertain the causa petendi."

The Court itself in the same case clearly held (at p. 20) that the "findings" on which was based the "conclusion, which has now indisputably acquired the force of res judicata”—"findings" which "constitute a condition essential to the Court's decision"—were among the points "possessing binding force in accordance with the terms of Article 59 of the Statute" FN1

--------------------------------------------------------------------------------------------------------------------FN1 The complete applicable passage is as follows: "As has been recalled above, the Court, by that judgment, decided that the attitude of the Polish Government in regard to the Oberschlesische was not in conformity with the provisions of the Geneva Convention. This conclusion, which has now indisputably acquired the force of res judicata, was based, amongst other things, firstly, on the finding by the Court that, from the standpoint of international law, the German Government was perfectly entitled to alienate the Chorzów factory, and, secondly, on the finding that, from the standpoint of municipal law, the Oberschlesische had validly acquired the right of ownership to the factory—and these findings constitute a condition essential to the Court's decision. The finding that, in municipal law, the factory did belong to the Oberschlesische is consequently included amongst the points decided by the Court in Judgment No. 7, and possessing binding force in accordance with the terms of Article 59 of the Statute. The very context in which the passage in question occurs is calculated to establish the right of ownership of the Oberschlesische from the standpoint of municipal law.

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, op. cit., p. 20.) (Italics added.)

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[p 334] The Permanent Court in another case indicated that reasons which do not go beyond the scope of the operative part (dispositif) are binding. (Polish Postal Service in Danzig, P.C.I.J., Series B, No. 11, p. 29.) But it is clear that not every reason or argument given by the Court in support of the decision is part of the res judicata.

Paragraph 3 of Article 62 of the Rules of Court provides: "Upon receipt by the Registrar of a preliminary objection filed by a party, the proceedings on the merits shall be suspended ..." On the basis of this provision it is argued that if the Court in delivering judgment on a preliminary objection—whether to jurisdiction or to admissibility—touches on any matter which pertains or appertains to the merits, what it says is just obiter dicta. This argument is based on a misconception of the Rule, as its history reveals. It was in the revision of the Rules by the Permanent Court of International Justice in 1936 that there was inserted the provision that "proceedings on the merits shall be suspended". Before that, the Rules contained no such provision. The discussion of the matter in the Court shows that the entire concern was focused on the problem of the time-limits which the Court would already have fixed for the main proceedings. It was noted that extensions would probably have to be granted if the Court overruled the preliminary objection. Thus Judge Fromageot proposed inserting in paragraph 3 the words "the time-limits originally fixed for the proceedings on the merits shall be suspended".
(P.C.I.J., Series D, Third Addendum to No. 2, p. 706.) When it was suggested by another member of the Court "that the proceedings on the merits were suspended as from the submission of the objection", Judge Fromageot revised his phrasing to read: "From that moment, the time-limits originally fixed for the proceedings on the merits shall be suspended." Thereafter "The Registrar pointed out that there was not, strictly speaking, a suspension of the time-limits. What was suspended was the obligation of the parties to file a particular written Memorial by a given date." (Ibid., p. 707; italics added.) Judge Fromageot then at once proposed the phrasing ultimately adopted: "The proceedings on the merits shall be suspended."

It is perfectly clear that the provision of the Rule in question was purely a matter of administrative procedure having to do with the setting of time-limits and was not conceived to have the substantive implications now sought to be attributed to it. The Court's Judgment of today presses the new theory further than it has been pressed before; it is now pressed too far and the historical origin of the Rule must be recalled. [p 335]

In proceedings on preliminary objections, the situation of the parties is reversed. The Respondent, who advances the preliminary objection, is called on first by the Court to state his case; the Applicant then responds, the Respondent replies and the oral proceedings close with the oral rejoinder of the Applicant. On the merits, it is the Applicant who begins and it is the Respondent who has the last word. That is why it is said:

"Preliminary objection proceedings ... now take the form of a self-contained case (in which the objecting State appears as applicant: In excipiendo reus fît actor) incidental to the proceedings on the merits ..." (Rosenne, loc. cit., Vol. 1, p. 464.)

The principle is a familiar one: Ballantine's Law Dictionary (1930), page 1138—"Reus excipiendo fit actor. The defendant by his plea may make himself a plaintiff". The Cyclopedic Law Dictionary, 3rd ed. (1940), page 975—"The defendant, by a plea, becomes plaintiff". Bell's South African Legal Dictionary, 3rd ed. (1951), page 21—"... he who avails himself of an exception is considered a plaintiff; for in respect of his exception, a defendant is a plaintiff".

The Judgment of the Court in this preliminary phase is pronounced, not on the claims of the Applicant, but on the submissions of the Respondent.

In this case, in the stage of the preliminary objections, the Respondent's Agent on 11 October 1962 first read these submissions:

"the Mandate for South West Africa [has never been, or, at any rate, is, since the dissolution of the League of Nations] is no longer a 'treaty or convention in force' within the meaning of Article 37 of the Statute of the Court, this submission being advanced—

(a) with respect to the said Mandate as a whole, including Article 7 thereof, and

(b) in any event, with respect to Article 7 itself FNl.”

--------------------------------------------------------------------------------------------------------FN1 The bracketed words were inserted in a revised submission of 22 October, as a result of a question posed to the Parties by Judge Sir Percy Spender. Cf. the 1962 Judgment at p. 330.
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These submissions required the Court to render judgment on this point of law in one or the other alternative forms. The Court did render judgment, finding that the Mandate, despite the dissolution of the League, was a "treaty or convention in force" within the meaning of Article 37 of the Statute, and that the validity of Article 7 was not affected by that dissolution. (See South West Africa cases, I.C.J. Reports 1962, pp. 330 ff.)

These first submissions of Respondent were a direct challenge to the jurisdiction of the Court by their impeachment of the validity of the treaty clause (Article 7) by which Respondent had consented to the jurisdiction of the Court. [p 336]

I am at a loss to understand how the Court can Say that the Court's disposal of these first submissions in its 1962 Judgment was merely basing itself upon an hypothesis or some sort of provisional basis. No such thought is expressed in the Court's 1962 Judgment.

The second submission denied the locus standi of Applicants:

"Secondly, neither the Government of Ethiopia nor the Government of Liberia is 'another Member of the League of Nations', as required for locus standi by Article 7 of the Mandate for South West Africa."

On the basis of several different reasons, the Court dismissed this objection (p. 342). This is a clear decision that Applicants have locus standi and the point is res judicata.

The third submission argued that there was no "dispute" in the sense of Article 7 because no material interests of the Applicants were involved:

"Thirdly, the conflict or disagreement alleged by the Governments of Ethiopia and Liberia to exist between them and the Government of the Republic of South Africa, is by reason of its nature and content not a 'dispute' as envisaged in Article 7 of the Mandate for South West Africa, more particularly in that no material interests of the Governments of Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby."

The Court (p. 344) expressly decided that the objection must be dismissed because there was a dispute within the meaning of Article 7. This decision that the dispute could concern "the well-being and development of the inhabitants" and need not include material interests of the Appli-cants, is res judicata.

The fourth submission in effect argued that collective negotiations in and through organs of the United Nations were not the kind of negotiations contemplated in Article 7:

"Fourthly, the alleged conflict or disagreement is as regards its state of development not a 'dispute' which 'cannot be settled by negotiation' within the meaning of Article 7 of the Mandate for South West Africa."

The Court decided (p. 346) that there having been full collective negotiation by one of the "established modes of international negotiation", this fourth objection must also be dismissed. The decision that this type of negotiation satisfies the requirements of Article 7 is also res judicata.
The Judgment of the Court today concludes that all of these objections are to be considered as objections to the jurisdiction. As explained in the 1962 Judgment and as emphasized in the dissenting opinion of Judge Morelli, they include objections to the admissibility of the claim. The distinction is well established in the jurisprudence of the Court. [p 337]

The decisions on these four points in the Judgment of 21 December 1962 are final under the provisions of Article 60 of the Statute and Article 94 (1) of the Charter. It is argued, however, that there is nothing with which a party can "comply" in decisions of this character. If Article 60 and Article 94 (1) were indeed to be interpreted as applying only to judgments calling for some affirmative step, the Articles would be largely emasculated.

In Corfu Channel (I.C.J. Reports 1949, at p. 33, the Court decided "that the action of the British Navy constituted a violation of Albanian sovereignty". This was a final judgment or decision and Article 94 (1) applies to it although no action in implementation was required.

In United States Nationals in Morocco (I.C.J. Reports 1952, at p. 213) the Court decided that American nationals were not exempt from certain taxes. This was a final decision and required no action in implementation except acquiescence which is similarly required for judgments upholding jurisdiction.

The decision of the Court in Northern Cameroons was final (I.C.J. Reports 1963, p. 38) but required no implementation except acquiescence. In any case, indeed, when preliminary objections are sustained (as in Norwegian Loans (I.C.J. Reports 1957, p. 27)) no implementation by the parties is required. But there is no basis for saying that Article 94 (1) excludes all of these cases.

It should also be noted that by Article 61 (3) of the Statute, compliance may be required by the Court before a revision is considered even though this duty to comply may later be terminated if the judgment is revised.

The Respondent's duty of compliance under Article 94 (1) of the Charter with respect to the judgment of 21 December 1962, was a duty to acquiesce in the findings of the Court and to conduct itself accordingly. By pleading to the merits, Respondent recognized and fulfilled its duty. When the Court decides that it has jurisdiction, a State which denied the correctness of the Court's decision, failed to plead to the merits and maintained that a subsequent adverse judgment on the merits was invalid, would violate its obligation under Article 94. It may be arguable that Respondent's first Submission "that the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations", was inconsistent with the Judgment of 21 December 1962, but this could be a matter of interpretation on which argument was justifiable.

The Advisory Opinions on South West Africa

There has also been much discussion of the three Advisory Opinions [p 338] given by the Court in regard to South West Africa. The Court invoked them in 1962 and Respondent devoted considerable attention to them. Although an Advisory Opinion or a series of such opinions, is not or are not legally binding on a State Member of the United Nations, whether or not the opinion is accepted and endorsed by the General Assembly, I share the view stated by Judge John Bassett Moore and recalled with approval by Judge Winiarski in his dissenting opinion in Peace Treaties (I.C.J. Reports 1950, pp. 89 and 91):
"If the opinions are treated as mere utterances and freely discarded, they will inevitably bring the Court into disrepute: ... the Court must, in view of its high mission, attribute to them great legal value and a moral authority."

So Judge Azevedo in the same case said that although an ordinary advisory opinion did not produce the effects of res judicata, "that fact is not sufficient to deprive an advisory opinion of all the moral consequences which are inherent in the dignity of the organ delivering the opinion, or even of its legal consequences" (p. 80).

On the basic point that the dissolution of the League did not terminate the Mandate or Article 7 thereof as a provision of a convention in force, the Court was unanimous in 1950 and no judge expressed a contrary view in the giving of the Advisory Opinions of 1955 and 1956. The Court having expressly reaffirmed this finding in 1962 (at p. 334), it would indeed have been brought "into disrepute" if it should now have attributed no weight to those prior views.

"It may be stated that the practical difference between the binding force of a judgment, which derives from specific provisions of the Charter and Statute apart from the auctoritas of the Court, and the authoritative nature of an advisory opinion possessed of that same auctoritas, are not significant." (Rosenne, op. cit., Vol. II, p. 747.)

"In using judicial decisions as a 'source of law' by virtue of Article 38 (1) (d) of the Statute, no distinction at all is made between judicial decisions given in the form of a judgment, and judicial decisions given in the form of an advisory opinion. Recourse is equally had to both types of judicial pronouncement." (Ibid., p. 745, note 1.)

Judge de Visscher, while stating clearly that advisory opinions do not involve the doctrine of chose jugée, adds: "Dans le plan de leur autorité doctrinale, il n'y a guère de distinction à faire entre arrêts et avis." (Aspects récents du droit procédural de la Cour Internationale de Justice, 1966, p. 195.)

As already noted, the Court's present judgment does not decide that the Mandate or Article 7 thereof has lapsed and the authority of the Court's prior utterances on that subject remains unimpaired. [p 339]

Section III. Respondent's Allegations of "New Facts"

Respondent laid great stress on what were alleged to be certain "new facts" which, it was argued, were so important that had they been known to the Court in 1950, the Court would have reached conclusions different from those actually pronounced in the Advisory Opinion which it gave in that year. Waiving the question whether this argument, as advanced, evaded the provisions of the Statute and of the Rules of Court concerning the revision of a prior decision, the so-called "new facts" may be examined, since, if they were "new facts of decisive importance", the Court would certainly need to take them into account even if this required some modification of conclusions previously reached. Some of them bear on the issue of the survival of the Mandate, an issue which cannot be ignored in this opinion. My examination does not lead me to believe any revision of the statement in the Court's Judgment of 1962 Op. 334) is called for: "All important facts were stated or referred to in the proceedings before the Court in 1950." The re-examination of some of these facts reinforces previous conclusions.

Mutatis mutandis, the situation and conclusion are the same as those stated by the Permanent Court of International Justice in the Monastery of St. Naoum case with reference to proposed revision of a decision of the Conference of Ambassadors:

"This decision has also been criticised on the ground that it was based on erroneous information or adopted without regard to certain essential facts .. .

These arguments make it necessary for the Court to ascertain whether, over and above the group of circumstances which led to that decision, there exist new facts or facts unknown at the time when the decision was taken; in other words, whether, as alleged by the Serb-Croat-Slovene State and Greece, the Conference of Ambassadors allocated the Monastery to Albania simply because it was unacquainted with new facts, or unaware of facts already in existence, which, if taken into consideration, would have led to a contrary decision.

As concerns new facts, there are none in the present case. It is true that... the Conference was unacquainted with the documents sent by the Serb-Croat-Slovene State in support of its claim for revision... But in the opinion of the Court fresh documents do not in themselves amount to fresh facts. No new fact—properly so-called—has been alleged.

As regards facts not known... [i]t is .. . difficult to believe that the members of the Conference of Ambassadors were unacquainted with these documents, which are in no sense secret." (P.C.I.J., Series B, No. 9, pp. 21-22.)

The "new facts" are listed as four in number in the Respondent's [p 340] Preliminary Objections at pages 345-346. In C.R. 6517, 30 March 1965, at pages 44 and 45, and C.R. 65/16, 12 April 1965, at pages 43 ff., the first of the four "new facts" is omitted FN1.

--------------------------------------------------------------------------------------------------------------------FN1 The "C.R." references in this opinion are to the daily verbatim transcripts, the numbering and pagination of which will not be identical in the final printed record (I.C.J. Pleadings).
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The first "new fact" as listed in the Preliminary Objections is the so-called express reservations made by the South African representative, Mr. Smit, at San Francisco on 11 May 1945. In the Court's 1950 volume of Pleadings, etc., at page 114, the United States in its statement set forth the entire text of the declaration by Mr. Smit except for the extra paragraph which Respondent says is not in the official transcript but which, before his death, Mr. Smit said was part of his statement. It is doubtful whether this extra paragraph adds much to what is said in the last three paragraphs of what is printed in the United States statement. The United States statement adds a reference to United Nations, Official Records, General Assembly, First Session, Second Part, Fourth Committee, Part 1 (1946), 200, Annex 13. Doc. A/l23 in this annex is a letter dated 17 October 1946 from the Legation of the Union of South Africa to the Secretary-General. It contains a long memorandum on the administration of South West Africa which begins: "1. On 7 May 1945, the delegation for the Union of South Africa informed the United Nations Conference on International Organization, San Francisco, as follows: . .." Here follows the statement as set out in the Preliminary Objections (at pp. 237-238) but the extra paragraph is not included.

According to the verbatim transcript of the meeting at which the South African delegate made his statement, Running Number 33, the delegate at the end of the prepared statement said: "That is all I have to say." There is no indication that the extra paragraph was pronounced, and one is therefore led to conclude that Mr. Smit's memory may have been faulty FN2.

--------------------------------------------------------------------------------------------------------------------FN2 The acceptance of Mr. Smit's recollection in the 1962 joint dissent at p. 533, was perhaps too facile.
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The United States statement to the Court in 1950 noted that the representative of South Africa had subsequently referred to Mr. Smit's declaration as a "reservation". It was said that he had circulated copies of the statement on 7 May before reading it to the meeting. The statement continues by referring to a speech by the South African representative about this "reservation" at the second session of the General Assembly, citing United Nations, A1P.V. 105 Plenary, 1947, 187-190 (final citation 105th Plenary, p. 635). The United States statement also said (p. 116):

"The effect of the 'reservation' was simply to give notice that the Union of South Africa would later raise in a competent forum the question of the future of South West Africa, with a view to incorporation of that Territory in the Union."[p 341]

This so-called South African reservation was also discussed by Judge Ingles of the Philippines at pages 251 ff. of the 1950 Pleadings. As stated above, Respondent abandoned this "new fact".

The second "new fact" is the rejection by the Preparatory Commission of the United Nations of a proposal for a temporary trusteeship committee. This event cannot be called "new" since it was discussed at length by Dr. Kerno, representative of the Secretary-General FN1, in the 1950 Pleadings before this Court at pages 161 ff. He gave explanations why the proposal was rejected but the matter was argued at such length in the present phase of the case that it is well to state the facts.

--------------------------------------------------------------------------------------------------------------------FN1 Dr. Kerno, in 1946, had been Rapporteur for the Fourth Committee of the General Assembly on Chapter IV (The Trusteeship System) of the Report of the Preparatory Commission.
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The Respondent seemed to attach importance to this alleged "new fact" in connection with its arguments that the Mandate lapsed on the termination or dissolution of the League of Nations and that the United Nations refused to accept any responsibilities or authority in connection with the territories which had been administered as mandates. Respondent was presumably stimulated by the 1962 joint dissent, pages 536-537, to make this argument.

By decision of the San Francisco Conference, a Preparatory Commission met in London on 24 November 1945. It made a report which was considered in the First Part of the First Session of the General Assembly of the United Nations, which also met in London, beginning on 10 January 1946. One of the matters considered was the establishment of the machinery necessary to inaugurate the United Nations trusteeship system. The account of what happened and the reasons why it happened are to be found in the official records and in authoritative contemporary reports.

The situation in the Preparatory Commission is summarized in the commentary on its report as presented by the Secretary of State for Foreign Affairs to the Parliament in London:

"Article 85 of the Charter. .. requires that the Trusteeship Council shall advise the General Assembly on the terms of trusteeship proposed for non-strategic areas. On the other hand Article 86, which defines the composition of the Trusteeship Council, lays down that one-half of the members of the Council are to be the States administering trust territories, and this presupposes that the terms of trusteeship for such territories have already been approved. To resolve this dilemma the Executive Committee recommended the creation, under Article 22 of the Charter, of a temporary Trusteeship Committee ... Certain Delegations opposed this solution on the grounds that it was unconstitutional, but it nevertheless secured the necessary two-thirds majority in the Executive Committee. The Preparatory Commission, however, was unable to reach agreement on this matter and its recommendation to the [p 342] Assembly is devoted almost entirely to the question of the action to be taken by individual Member States to prepare terms of trusteeship. With regard to the question of United Nations machinery the effect of the draft resolution is merely to defer any solution until the meeting of the General Assembly itself..." (Cmd. 6734, Misc. No. 5, 1946, p. 8.)

The same analysis of the situation is presented in the report of the United States Delegation to the President of the United States:

"(e) Since establishment of the Trusteeship Council was dependent upon prior negotiation of trusteeship agreements and was therefore likely to be delayed for some time, the United States concurred in a suggestion that a temporary trusteeship committee of the Assembly might be instituted pending establishment of the Council. Some others believed, on the contrary, that such a committee might tend to delay establishment of the Trusteeship Council and might not even be constitutional. The United States, while questioning the validity of the latter point, agreed that a temporary committee was not essential and that the early conclusion of the necessary trusteeship agreements to enable the Trusteeship Council to be established should be encouraged. This view was finally adopted." (Department of State Publication 2484, 1946, p. 4.)

The thrust of Respondent's argument about the non-inclusion of the proposal for a temporary trusteeship committee is that this omission proved that it was agreed that the United Nations had no responsibility in regard to mandated territories. As indicated in the two foregoing quotations, the British and United States Delegations reported that the non-inclusion was due to arguments based upon the unconstitutionality of the proposal and on the argument that the establishment of a temporary committee might delay instead of expediting the conclusion of trusteeship agreements. Since this point is important, it may be noted that the Yearbook of the United Nations 1946-1947, at page 36, gives the same explanation for the non-inclusion of the provision for a temporary trusteeship committee.

The point of view of the United States delegation is further revealed in an amendment which it proposed in the Preparatory Commission on 4 December 1945 (Doc. PC/TC/11):

"1. The Report by the Executive Committee makes no provision for any organ of the United Nations to carry out the functions of the Permanent Mandates Commission. In Part III, Chapter IX, dealing with the League of Nations there occurs the following state-ment: 'Since the questions arising from the winding up of the Mandates system are dealt with in Part III, Chapter IV, no recommendation on this subject is included here.' (Section 3, paragraph 5, page 110.) No specific reference to the functions of the Permanent Mandates Commission is to be found, however, in Part III, Chap-[p 343]ter IV, relating to the trusteeship system. Section 2, paragraph 4, of that Chapter (page 56) merely assigns to the Temporary Trusteeship Committee a general advisory function in this field: '(iv) advise the General Assembly on any matters that might arise with regard to the transfer to the United Nations of any functions and responsibilities hitherto exercised under the Mandates system.'

2. In order to provide a degree of continuity between the mandates system and the trusteeship system, to permit the mandatory powers to discharge their obligations, and to further the transfer of mandated territories to trusteeship, the Temporary Trusteeship Committee (or such a committee as is established to perform its functions) and, later, the Trusteeship Council should be specifically empowered to receive the reports which the mandatory powers are now obligated to make to the Permanent Mandates Commission. The existing obligations and rights of the parties involved under the mandates system with respect to any mandated territory continue in force until such territory is placed under trusteeship by an individual trusteeship agreement or until some other international arrangement is made. To bridge any possible gap which might exist between the termination of the mandates system and the establishment of the trusteeship system, it would appear appropriate that the supervisory functions of the Permanent Mandates Commission should be carried on temporarily by the organ of the United Nations which is to handle trusteeship matters.

3. In order, therefore, that the report of the Preparatory Commission may be complete in this respect the following amendment is proposed.

4. Amendment
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