PART II
ORAL STATEMENTS
PUBLIC SITTINGS
hdd atthe Peace Palace, Thc Hague,
on Marcltzznd and Jme ~st1956,
the PresidenMr. Hackworlh,presiding
DEUXIÈRIE PARTIE
EXPOSÉS ORAUX
SÉANCEÇ PUBLIQUES
knries au Palais 22 la Paix, La Haye,
lesa2 mars et juin19j6,
sousla présidence M. Hackworth, Président MINUTES OF THE SITTINGS HELD ON
MARCH zznd AND JUNfi sr, 1956
FIRST l'UI3J.IC Sl'C'rIh'G (22111j6,10.30 n.m.)
Presenl : President HACK\\.ORTH ; I'ice-President BADAIY;I Jtrdges
BASDEV.XST\,'JINIAHSKI,KLAESTADR , EAD, MSU Mo, ARMAND-UGON,
KOJEYNIKO~S ~i,r Muhammad ZAFRUI.I.AKHAN, Sir Hersch LAUTER-
PACHT, I\~OHESO QUISTAKA.COKDOI-A ; Hegislrnr LOPEZOLI\-AS.
illso presr~il:
For the United I<i:igdom O/ Grenl Hritairi und hrorfhcr~~Ircl:i~~d:
The Right Honournble Sir Reginald l!anningham-Uuller, Q.C., X.P.,
Attorney-Gîiieral,
assisfedbv :
Ilr. F. A. Vallat, C.N.G., Deputy I.egal Adviser to the Foreign Office.
The PRESIIIESToprned the hearing and said tbat the Court liad
met to hear oral statementj on the Request of the Gencral Assembly
of the {!nitcd Xations for an Advisory Opinion on a mattcr pertainin:
to the Territory of South IVest Africn. Mnrch 15th hnd originslly heen
fixrd as the da!c for the openiiig of the oral proceedings. biit, at the
reqiiest of the Gorcrnment of the United iiingdom, the date had been
postponed to hlarch ~2nd.
Judges Guerrero and ZoriEiC, who were conipelled by reasons of
illness to be absent from The Hap-e. nere iinable to participitein the
procecdirigs.
I3y a Resolution dated Decemher 3rd. 195j, the General Asseml~ly
of the United Xations had reqiiested the Court to give an Ad\'isory
Opinion on the question ahether it would be consistent with an earlier
Opinion of the Court for the Asseml~ly's Cominittee on South West
Africa to grant oral hrarinrs to petitioners on matters relating to the
Territory of South West Africa.
The President called upon tlie Rcgistrar to read the Resoliition in
question.
The REÇISTRAKrrad the Resoliition.
Tlie PRESIUESTstated that the Re<]iiest for an Advisory Opinion
had been notified in the customary rnanner. In pursÿance of Articl66,
paragraph 2.of the Statute, the Request h3d been communicated to the
h1rri;bers of the United Nations.
13). an Ordcr dated December 2211d. 1955, the tinic-limit for the
siibmission of written statements had been fixed at Frbruary rgth1956.PROCÈS-VERBAUX DES SÉANCES TENUES
LES 22 MARS ET 1.JUIN 1956 The Court had received from the Secrctary-General of th<: United
Xations the documents likely to throw light upon the question. including
the relevant records of the General Assembly. It had also received written
statenients froni the Government of the United States ofAmericaandthe
Government of the Re~iiblic of China. The Govemment of India had
informed the Court rh& it did not wish to present a statement and had
referred tothe viewsexprcssed by its representative in the debates in the
GeThe Govemrnent of the United Kin dom of Great Britain and Northern
Ireland had notified its intention ofbeing represented at the present
hearing by the Rt. Hon. Sir Reginald hfanningham-Ruller, Q.C., h1.P..
Attorney-General, assisted by Mr. E. A. Vallnt, C.M.G., Deputy Legal
Adviser lo t!ie Foreign Office,whose presonce in Court he noted.
The President c?.lled upon the representative of the Govemment
of the United Kingdom to address the Court.
Sir Reginald MANNINGHAM-BULL mEade the statement reproduced
in the annexl.
The PRESIDEST,on behalf of the Court, tlianked therepresentarive
of the Gowmment of the Vnited Kingdoni for the assistance that he
had given the Court and said that the Secretary-General of the United
Sations and the Government of the United Kingdon: \ï,ould. in due
course, be inform~d nf the date on nhich the Court n-ould deliver its
Opinion.
(The Court rose nt 12.45 p.m.)
(Signed) GREENH. HACK\VORTH,
President.
(Signeù) J. LOPEZ OLIVAN,
Registrar.
SECOSD PUBLIC SITTIXG (r VI56, II am.)
Presoll: [Çee hearing of hfarch zznd.]
Also present:
For the United Kircgdomof Great Britaiit aiid Norlhern Irelaiid:
Mr. W. G. Darwin, rlssistant Legal Adviser to the
Foreign Office.
The PRESIDENT openecl the sitting and stated that the Court had
of the United Nations in the matter of the Admissibility of Hearingsy
of Petitioners by the Committee on South West Africa.
He called upon the Registrar to read the Resolution of the General
Assembly of Deceniber 3rd, 1955 ,equesting the Opinion.
The REGISTRAR read the relevant text. AUDIESCE PUBLIQUE DU I VI 56 41
La Cotir a re:n du Secrétairegknéraldes Xations Unies lesdocuments
qoiivnnt servirà élucider la question, y compris les procès-verbaux de
1Assemblée énérale.1.a Cour a reçu, en outre, des esposés écrits
émanant du Eouvernement des Etats-Unis d'Amériqueet duGouverne-
ment. de la République de Chine. 1.e Gouvernement de l'Inde a fait
connaître la Cour qu'il ne désirait pas présenter d'exposéet s'est
référkau point de vue exprimépar son reprksentant au cours des débats
de I'Assembikegénérale.
Le Gouvernement du Royaume-Uni de Grande-Bretagne et d'Irlande
du Nord a notifib l'intention de se faire reprkeiitàrl audience par le
Trh Hanorahle sir Keçinald Manningham-Ruller, Q. C., M.P.. Altor?tey-
Generai, assistéde M. P. A. Vallnt, C. M. G., jurisconsulte adjoint du
Foreign Oficz, dont il constate la pr6sence devant la Cour.
Le Président donne la parole ail représentant du Gouvernement du
Royaume-Uni.
Sir Reginald ~~~~NNI~CH~\~-~~JLLER pmnnnce l'exposéreproduit en
annexe '.
Le PR~SIDESTremercie, au nom de la Cour, le représentant du
Gouvernement di1 Royaume-Uni pour l'assistance qu'il lui a aj>j>ort6e
en cette affaire, et annonce que, le moment venu, le Secrétairegénéral
des Nations Unies et Ir Gouvernement di1Koyaume-Uni seront informGs
de la dateà laqiielllnCOU~ rendra son avisconsultatif.
(I.'andience est levéà midi 45.)
Le Président :
(Sigizi) GREEXH. HACKIVORTH.
Le Greffier :
(Signé) J. LOFEZ0~1v.4~.
DEUXILME AUDIENCE PUBLIQUE (1 VI56. II heirres.)
Présenls: [Voir audience du 22 mars.]
Présentégalement :
Pour le Royaume-Uni de Grailde-Bretag~reet d'lrluirde du Nord:
Al. H. G. Darwin, Jurisconsulte adjoint, miiiistère des Affaires
étrangères.
Le PRÉSIDENT ouvre l'audience et expose que laCour est réuniepour
rendre l'avis consultatif qui lui a étédemandépar l'Assembléegénérale
des Xations Unies siir la questioii de l'admissibilité de l'audition de
pétitionnaires par le Comitédu Sud-Ouest africain.
II prie le Greffier de lire la résolutioii (le l'Assembléegénéraledu
3 décembre 1955, sollicitant cet avis.
Le GREFFIER lit le teste de In r6solutioii.42 I'UBLIC SIïTISG OF 1 VI j6
The PRESII>ETT indicated that in pursuance of Articl67 of the Statute
of the Court, notice Iiad been givcn that the Advisory Opinion woiild
be delivered in open Court.
In accordance witli Article 39 of the Statute. the Court had decided
that the English test of the Opinioii would be considered as authorita-
tive. He would read tliat text.
The l'resi(1ent read the relevant text'.
The President callecl upon the Registrar to read the French test of
tlie operative clause.
The KEGIÇTRAR read the relevant text.
The PRESIIIBNT stated that Jiidge \Viniarski, while concurring in the
operative clause of the Opinion of the Court, had appended to it a
declaration.
Judge I<ojevnikov, while concurring in tlie operative clause of the
Opinion of the Court, had appended to it a declaration.
Judge Sir Hersch Lauterpacht, while concurring in the Opinioii of
the Court, had availed hirnself of the right conferredon him by Articl57
and 68 of tlie Statute, and had appended to it liis Separate Opinion.
\lice-President Badawi and Judges Basdevant, Hsu Mo, Armand-
Ugon and Moreno Quintana, availing themselves of the right conferred
upon them hy Articles 57 and 66 of tlie Statute, had appended to the
Opinion of the Court their joint Dissenting Opinion, to which was
attached a declaration by Vice-President Badawi.
The authors of these declarations and opinions had informed the
I'rcsident that they did not wish them to be read at tliis sittinp.
The President closed the sitting.
(TheCourt rose at 11.35 a.m.)
[Sigtratures.]
' Sec Court's publications, HepO/lJdrdg»lenls. AduisOpinions and Ordcrs
1956. PP.23-34, Le PRÉSIDE'ITindique que, conforménient à l'article 67 du Statut de
la Cour, notification a étéfaite que lecture de I'avis serait donnée au-
jourd'hui.
Conformément à l'article39 du Statut, la Cour a décidé quele teste
anglais sera le texte faisant foi, et le Président donne lecture de ce
texte.
Le Président lit le teste '.
Le Président prie le Greffier de donner lecture du dispositif en français.
Le G-E-FIER donne lecture du dis~ositif.
Le PRÉSIDENT annonce que M. Winiarski, juge, tout en étant d'accord
avec le dispositif de I'avis de la Cour,y a joint une déclaration.
M. Kojevnikov, juge, tout en étant d'accord avec le dispositif de
l'avis de la Cour, y a joint une déclaratioii.
Sir Hersch Lauterpacht, juge, tout en étant d'accord avec l'avis de
la Cour, s'est prévalu du droit que lui confèrent les articles 57 et 68du
Statut et a joint à l'avis l'exposéde son opinion individuelle.
Il. Badawi, Vice-Président, hlhf. Basdevant. Hsu hfo, Armand-Ugon
et Noreno Quintana, juges. se prévalant du droit que leur confèrent les
articles 57 ct 68 du Statut, ont joint à I'avis l'exposécommun de leu?
o~inion dissidente. auouel est annexée une déclaration de M. Badawi.
*ce-président. .
Les auteurs de ces déclaratioiis et opinions ont fait connaître au
l'résident au'ils n'ont oas l'intention d'en donner lecture à l'audience.
Le Président clOt l'audience.
(L'auclicnce est levéei Ir h. 35.)
[Sigi~ult<res.]
' Vciir piiblicatiode laCour. Hecr,eil de.4rrdlr.-luicsiist~iioiet Ordon-
norrcer 1956.pp. 23-34. ANNEX TO THE MINUTES
ANNEXE AUXPROCÈS-VERBAUX
ORAL STATEMENT BY
SIR REGlNALD MANNINGHAM-BULLEK
(REPRESENTISC THE UNITED KINT.DOM GoVERXMEST)
AT THE PUBI.IC SITTISÇ OF MARCH ~2nd. 1gj6, MORNINC
May it please the Court.
Uefore discussing tlie question siibmitted by the General Assembly.
may 1, on hehalf of the Government of the United Kingdom, thank the
Court for adjoiiriiiiig tlie oral hearing aridenabling me to put beforc
the Court a stateiiient on behalf of the United Kingdoni. 1 do hopc
that the \r.rek's adjoiirnment has not caused any inconvenierice to
Members of tlic Coiirt. 1 regret that it was iiot possible to decide
rvhether to inter\.eiic until ten days or so ago, and that, having regard
to the coniparatirely early hearing aiid tlie time-limits fixed for writteii
memoranda, it \vas iiot iiossible coiiseqiiently to submit a aritteii
inemoranduni. 1 hoiw thecourt will accefit mvauoloev for venturine to
~ ~ . , . u, u
appear withoiit haGilig done so.
I'he Coiirt is. 1 I;iiow, alrezidy faniiliar witli tire backgrouiid of the
ouestion oii whicli its oiiiiiiori is soiirht. It has before it the verv
\:aliiable introductory iio& ancl th,! doc'urnents siihmitted hy the Secrc-
tary-General of the United Xatioiis. It also has the benefit of written
statemciits stibmitt~d by the Governriieiits of the Kepublic of China,
India, and thc Uiiitcd Stritcs of rinierica. Consec!iieiitly. I do iiot think
it is necessary-aiid 1 hop the Coiirt will agree-for nie to go into
the Iiistorical dctails ris fiilly :is might hiive Iiecn considered iiecessary
in a written statcrneiit or in an oral st:itcment if this matcrial had iiot
&?ad< beeii placed heforc the Court.
hly purposc in appearing to-day is to draw the atteiitioii of tlie
Court to wliat seciil to ~is'materi;~lpoints, arid1 hope that by doing
so L shall assist the Court in tinding thr correct aiiswer to the questior.
submitted to the Court by tlic Geiieral .4ssembly in Resoliition 942 (X)
of the 3rd Decernl~er, 1955.
'The Court lias I~eii asked to say nhether it is coiisistent witli the
Advisory Ol~inioiiof the Court of 11t1i ,liily, 19jo. for the Committeï
oii Soutli West rlfrica to graiit oral Iicarings to petitioners oii matters
relating tu the Tcrritory of South West Africa.
The most relevant passage in the 1950 Ad\,isory Opiiiiori is, 1siibinit.
the one on page 138, whcre it is said :
"It follows from wliat is said al~ove that South-West Africa
is still to hc considered as a territory Iield under the hlandate
of Deceinber rîtli,19-20.The degrec of supervision to be exercised
1ijtli? (;cner:il Assernbly slioiild riot therefore etceed that whicli
5 44 ORAL STATE.XENT U.K. REPRESENTA.TIVE (22 III 56)
ai~vlied under the Mandates Svstem. and should conform as far
aS'lmssible to the procedure folfowed in this respect by the Council
of the League of Nations. These observations are particularly
applicable t: annual reports and petitions."
1 shall be saying some more aboiit this passage later but 1 would
like now, if 1 may, to draw attention to its language which was, no
doubt, most carefully chosen. It would he disrespectfiil to the Court
to suggest-and 1 certainly do not wish to suggest-tliat the words
used do not have, and were not intended to have, their plain. natural
meaning and significance.
The first sentence in this passage to which 1 wish to draw ~inrticular
attention is the second sentence in it : "The degree of siipervision ...
should not therefore exceed that whicli applied undcr the hlaiidates
System ...".It is not "which might have been applied" but "which
applied". One has therefore to ascertain what sul~ervision \vas in fact
applied under the Mandates System, not to consider what might have
heen done in hypothetical circiimstances under tliat sÿstem. In fact
the Permanent Mandates Commission did not have oral hearings of
petitions. Indeed, if the Advisory Opinion had said "which miglit have
been applied", it would still be inconsistent with that Opinion for the
Committee on South West Africa to have oral lieariiigs of petitions,
for the Council of the Leagiie decided not to permit the Mandates
Commission to have siich oral heariiigs.
Further, I would ask the Court to note tliat iiot only is the past
tense used by the word "applied". but that it is also used in relation
to procediire. The Opinion States that the degree of super\,isioii shoiild
conform as far as possible to the procedure followed in this respect
hy the Coiincil of the League of Xations. The langiiage used is not
that it should conform to the procedure \\.hic11might have been followed
by the League, but to the procediire followed. It is also to he noted
that this passage of the Opinion specifically refers to petitions. The
natural meaning of tliis passage is, 1suhmit, that the General Asscmhly,
through its Committee on South West Africa, could esercise the degree
of supervision that was applied by the Mandates Commission-that
is to Say, the degree of supervision exercised iinder the Mandates
System-but had no right to exceed it ; and tliat the Gcneral .4ssemhly,
through this Committee on South \\'est Africa. should follow as far
as possible the procedure followed hy the Council of the Lcague of
Nations with regard to petitions.
But before 1 Say any more about this, may 1 first Say something
about the question put to the Court and about the Committee on
Soutli West Africa. Then 1 want to s;iy something about the position
and status of South West Africa itself, for that is very important.
Then 1 propose to make some submissions on what was the degree of
supervision in fact appliedunder the Mandates System by the Mandates
Commission. Finally, 1 hope to siibmit that in tlic liglit of the super-
vision in fact applied under the Blandates System and the procedure
followed by the Council of the League, it would not be consistent with
oral hearings to petitioners.mittee on South West Africa to grnnt
First, then, with the permisSion of the Court, 1 should like to say
something about the question put tothe Coiirt and about the Committee ORAI. STATEMENT U.K. REPRESESTATII'E (22 111 56)
45
on South West Africa. As on previous occasions, it is a narrow one.
It is limited to the oral hearing of petitioners hy the Committee on
South West Africa. The Court is not asked to give its opinion on oral
hearings hy any other body.
The Committee on South West Africa was established by Resolu-
tion 749A (VIII) adopted by the General .4ssembly on the 26th of
November. 1953. That Resolution recalled that the Advisory Opinion
of 1950 had heen accepted by the General Assembly hy Kcsolutions
of the 13th of December, 1950, and the 19th of Janiiary, Igjz. It
recalled that the Advisory Opinion \vas that the territory of Soiith
Wcst Africa is a territory under the international m:iiidate assiime<-l
by the Union of South Africa on the 17th of December, ~qzo,and that
the Union of South Africa continues to have the international obli-
gations 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 super-
visory fiinctions to be exercised by the United Rations, to which its
annual reports and its petitions are to he submitted. I3y paragraph 6
of the operative part of that Resolution, it is affimed that, in order
to implement the Advisory Opinion of the International Court with
regard to South West Africa, the supervision of the administration
of the territory, though it should not esceed that which applied under
the Mandates System, should be exercised by the United Nations. It
is to be iioted again that it is that whicli applied iinder the Mandates
System : not that which could have heen applied. By paragraph II of
the Resolution, the General Assembly expregsed its belief that it would
not fulfil its obligations towards the inhabitants of South West Africa
if it were not to assume the supervisory responsihilities "with regard
to the temtory (1am quoting from the Resoliition) which were formerly
exercised by the League of Nations". Again it is to be noted that the
word used is "exercised", not "exercisable". By paragraph 12, the
General Assembly estahlished the Comrnittee on South West Africa
and requested the Committec-and here 1 qiiote :
"(a) to examine within the scope of the questionnaire adopted
by the Permanent iilandates Commission of the League of Sations
in 1926 such information and documentation as may he availahle
in respect of the territory of South West .4frica ;".
That is the end of the rliiotation. and the reference in that passage
to the scope of the questionnaire in my siibmission shows that the
Committee were only to act within the iimits aithin which the Nandates
Commission acted. The Kesoliition weiit on-1 quote again-wvith a
request to the Committee
"to examine. as iar as i,ossible. in accordance with the vrocedure
of the former Mandate; syste&, reliorts and petitions w'hichmay
he submitted to the Committee or to the Secretary-General ;".
Here again the Committee were to follon. in rny siibmission, the proce-
dure of the Mandates System. And the lesolution went on to the
request, in paragraph (c), that the Committee should
"trzinsmit to the General Assembly a report conccrning conditions
in the territory taking into account, as far as possible, the scope46 ORAL STATE~IE'IT U.K. REPRESENTATIVE (22 III56)
of the reports of the Permanent Mandates Cominission of thc
League of Xations ;".
Tliat is to Say, in my suhmission, tlieir report to the General Assembly
was to be modelled on the reports submitted by the Permanent Man-
dates Commission to the Council of the League of Nations. In sub-
paragrapli (d) of the Resolution. the General Assembly requested the
Committee to
"prepare, for the consideration of the General Assembly, a proce-
dure for the examination of reports and petitions which should
conform as far as possible to the procedure followed in this respect
by the Assembly, the Council and the Permanent Mandates Com-
mission of the League of Nations".
This passage, iri my submission, relates to the iiiternal procediire of
the General Assembly and in the exercise of the authority given to
it by this paragraph, the Committee in due course siibmitted draft
rules of procediire for the General Assembly.
Now these paragraphs constitute the terms of reference of the Com-
mittee on South West Africa. They show an intention by the General
Assembly to adhere to the natural and ordinary meaning of the Advis-
ory Opinion of 1950. an intention to exercise the supervisory func-
tions exercised hy the Council of the League of Nations with referencc
to South West Africa and the intention to confer on the Committee
functions corresponding to those formerly exercised by the Permanent
Mandates Commission. Therefore, to determine what should be the
degree of supervision to be esercised by the General Assembly through
its Committee, one must ascertain the degree of siipervision in fact
applied by the Mandates Commission, and in order to conform to the
procedure followed hy the Council of the League, we must ascertain
what that procedure was. 1 will come to that, if 1 may, later.
in the course of the debatc at the jooth to the 505th meeting of
tlic Fourth Committee, a draft resolutiori contained iii Document
AICqiLqx3 was introduced on the 8th November, 1955. by the delega-
tions of Mexico, Pakistan, Syria, Thailand and the United States of
America to the effect that, in accordance with the Advisory Opinion
of 19jo (and here 1 quote). "the oral hearing of yetitioners by the
Committee on South \\'est Africa would not be in accordance with
the procedure of the former Mandates System and is tlierefore not
admissible". That is the end of the quotation. A revised version of
tliis Resolution, submitted hy the same delegations on the 9th Xovem-
ber, 1955, althoiigh couched in different tenns, was to the same eiïect,
and many delegations, in the course of the debate, expressed the view
that the grant of oralieariiigs would not be consistent with the Advisory
Opinion. It is interesting to note that at the 500th meeting of the Fourth
Committee it was stated on behalf of the United States Delegation
that that delegation agreed that if the General Assembly decided to
hear petitioners concerning South West Africa it would iiot be com-
plying witli the Advisory Opinion given by the International Court of
Justice in 1950. However, it became clear that these resolutions would
not command the necessarv two-thirds maioritv. There is a savinr
in my country that second <houghts are sométimésbest. and 1 ob&rvë
that the hlemoraiidiim now siibmitted by the United States of America OR*L STr\TE>lEIIT U.K. REI'RESEST.4TIYE (22 111 j6) 47
coiitends that oral heariiigs are permissible in certÿiri circumstaiices.
ljiit 1 would submit that in this instance the tirst tliougbts wcrc
soiiiidest.
1 want now to make some observations with regard to the position
;ind status of South West Africa itself. It is particularly necessary
that 1 should do this in view of certain statements made in the course
of the debate in the Fourth Committee. One or two of these statements
siiggested that the territory of South West ilfrica either came or shoul<l
come under Cliapter XI of the United Nations Charter regarding nori-
self-governing territories. Other delegatioiis, on the other hand, main-
tained tliat South West .4frica should he regarded as though it were
a trust territory and he treated as though it came under Chapter XII
of the, Charter regarding the international trusteeship system. U'hat-
ever may or may not happen in the future, the present legal position
and status of South West Africa is in my submission clear. It is not a
rion-self-governing territory. It is not a triist territory. It is a mandated
territory.
The question put tu 'the Court has its origin in the itict tha? South
\Vest Africa is not a trust territory or a non-self-governing territory
hiit as stated expressly in its Advisory Opinion of 1950. South \V?st
.Africa is a territory under the internation;il mandate assumed hy the
Union of South Africa on December 17, 1920. This Coiirt has clexrly
indicated thatit considers the status of South West Africa as sui geiieris,
and in relation to the question iioiv belore the Court the provisions
of Chapters XI and XII of the Charter are, in iny suhmission, of no
:issistance and give no guidance. This Coiirt in igjo also rspressed the
\,iew. a view accepted as 1 Iiave poiiited out by tlie Geiieral Assembly,
that the Unioii of South r\frica coiitiniied to have the international
obligations stated in .4rticle 22 of the Covrnant of the 1.eague and in
the Mandate for South West Afric;~,;is well as the obligation to transrnit
petitions froni the inhabitants of th;it territory. Si,~ccthcrc is prouisioir
/or ic~ritl~~pretitio?iuiider the Mandates System tlie position of Soiith
Wpst .4frica is clearly different from that of iioii-selfyoverning tcrri-
tories to whicli Chaliter XL of the Charter applies, for in the case of
those territories there is no l~ro\.isi»n for petitions to aiiy organ of the
Ijiiited Satioris.
Equnlly unsouiid, iiimy siibmissioii. is tlie argiiinent that the Coni-
inittee on Soiitli \Vest Africa is eiititled Io grant oral heariiigs because
the Union of Soiith Africa is iinder ;in ohligatioii to place the territory
iiiider United Nations trusteeship. Iii tlie 195oA<lvijoryO)>inioiia inajo-
rit- of this Coiirt coiisidered-and here 1iliiote-"that the provisions of
Cliapter XI1 of tlie Ch:irter do not iinpose on thr üiiioii of South Africa
;i1eg;ilobligation to 1)lacethe territory uiider thc triisteciliip system"-
tliat is the end of the quotation. The Coiirt \vas iin;iiiinioiis in tlie view
tliat tlic proi,isioiis of Chapter Xi1 rovide ;imeaiis hy which the trrri-
tory rnay be brouglit iinder the l!uste?sliili Systun. .l.o grniit oral
lirarings on tlie Insis that Soiith \\'est Africa shoiild I>e;itrust tcrritofy,
in~,olves trcating Sotitl~ \\:est Afric;i;is if it was;i triist territory \\.h!cli
c1e;irlv it is iiot. Thc Unitcd Kinrdom Gi~\*ernmciiteiitirclv acrcîs witli
thrse-\sic\vs espressi:d by the ~Oiirt and submits th;it tlié territory of
5011th\\'est Africa shoiild not, ai~dindred cannot, be tri:;ited as thoiigh
it were a trust territory. Tliere arr certain featiircs of tlie triisteeship
system which distinguish it from tlic Ikiidates i;ystr.iii. One of these is4 OHAI. STATE.\IBST U.K. REPKESESTATIVE (22 III 56)
tlic cxilress provision for petitions iiiade in paragrapli (0) of Article 87
of the United Xations Charter. Xo corresponding provisioii appeared iii
Article n2 of the Coveiiaiit of the I.eague, and it is in accordance witli
this provision of Article 87 tliat detailed riilcs for the Iixiring of or;il
petitions are made in the rules of procedure of the Trusteeship Council.
aiid the riiles in <luestioii arc Rules 73, So :md S7 to 91 of tlie riiles of
procedure of the Triisteeship Coiincil iis amcnded to 1952.
For the Iliirposc of the preseiit reference to the Coiirt it is unnîcessary
to examiiie tliis question, namely. the prcseiit statos of Soutli \l'est
Africa. ancn. \Vlictlier the Coiirt was right or wrorig in 1950 is, strictly
speakiiig, irrelevnnt because tlie Coiirt is rion. zisked to sa). siml~ly
wliether the grant of oral hearings is consistent ivith the 1950 Opiiiioii.
Tlie Coiirt is iiot asked to revise or rccoiisider, or to alter that Opinion.
III r9jo tlie mnjority of the Coiirt exl~ressedthe Opiiiion tliat there wris
no ohligntioii to place Çoiith \\'est Africa under the triiste<:ship systeni.
Accordiiigly riny argurnerit to the coiitrary should I>cdisrcg:irded by the
Coiirt in consideriiig the cliiestioiibefore it, riridone iiiiist [,roceed, iri rriy
siihmissioii. on tlie hasis that Soiith West Africri is, as this Coiirt lias
said, a territory iinder the internatioiial hfaridrite ;issiimed by the Uiiioii
of Soiith Africa on the 10th Decemher, 1920.
Questions rclatiiig to the statiis of Soiith \$'est Africa aiid siipcrvisioii
over the ;idrninistratiori of thc territory faIl to hc decidcd, :is 1Iiavc just
snid, neither oit the basis of Chapter XI iior Chapter XI1 of the Uiiited
Xatioiis Charter. I~ut oii the I~asisof the inandalc and thc Jlaridates
System. Iri order tu see Iiow the Mandates System irorked oiie rniist look
at the proctice of the Leagiie of X;itions. Aiid 1 shoiild iiow like to sa?
sornethiiig about the prrictice of the Lcagiie with regard to tlie <~iicstioii
of oral hc:iriiig of lietitioners.
On the Ihasicfacts tlicrc dues not seerii to Iteiiriy rooiii for cuiitroversy.
Tliere were iio pro\-isioiis for petitions of ariy kind eitlicr in Article 22 of
tlicCo\.rii;iiitul tlic 1.c;iguc or in tlic Xandate for Soutli \Vcst tifrica.
'l'liere werc ?IO provisions for oral lierirings iii the (:onstitiition or tlic
Rulcs of I'rocediire of tlic Pcriiianeiit Jlaiidates Commissiori or iiitlir
special riiles relriting to \vritteri petitions, drziwn III'in 19'3.
'l'hc nlhsciicc of ail- l,rovisioii for oral Iiearings of petitions wai no
accideiit. It \v;is iiot tlic resiilt of ;iiiy lack of foresight or iniaginatio~ioii
tlicpart of the orgaiis of the I.eaguc. 'l'hcIiistory of thïsc occasiuiis is
indiratcd iiiparagr:iplis 20.33 of tlie Iritrodiictory Sote hy the Sccrctnry-
Gciieral of the Uiiited Xritions of Fehriiary i.+th, igjb. There is no need
for me to rcinind tlie Court of tliiit Iiistory or to go iii very grcat detail
iiitu ttic <locuiiiciits ivliicli have tleeii [rresciited to tlic Court. It will
siiffice, 1 Iiope, to ineritioii only a feu, salient points.
At its l'liird, its Seveiitli, and its Eiglith Scssioiis, the Alaiidatcs Coni-
mission considerccl ttiv ,liiestiori nf 1ie;iringpetitioiicrs and oii eacli occ;i-
sioii decided ayaiiist or;il he;irings. :\t the Third Sessioii in 1<)?3. the
decisioii \v;is t8 tell tlie Anti-Slnvery Society that the Coiiimission mel-
coiiied-:iiid 1ii.r~.1 ililote-"ri11 re1ev:iiit detailed ~c,ritlciirifi)riii:itioii
froni rcs~~orisihlel,crsoris". (Tliat is the end of tlie qiiotatioii.) Tlic Court
may be riw;ircof tlie circiimstaiiccs wliicli gave rise to that coinmiinica-
tioii. They \+.etc very exception;il, so csceptioiial tlirit a case coiild Ije
piit forivard for siicli esceptioiial procedure ris thc Iicaring of or:il peti-
tioiis. Iiiforinatioii 1i;iclI~eriireceived iihout e\,crits in the territory in ORAI, STATEMEXT U.K. REPRESEPITATII-E (22 III56)
49
auestion but the Mandatorv Power had refrained from report in^ iivon-.
tiieni.
And in this coiinectioii, in relation to this case, it is interesting to ser
what Professor Rappard said ;it page 66 of the Minutes of the Third
Session of the Commission. He pointed out that the Commission lirid
always three kinds of information at its disposal: official information
froiri the annual reports of the Mandatory Powers; officia1information
from the replies of the accredited representatives of the Mandatory
-.nwer~i.:~nd on~ ~id~l information of al1 kinds ahich it had asked the
Secretariat to furnish, such as cuttings from newspapers, interviews,
accounts of Parliamentarv debates. etc. He said-Professor Rappard-
that in the case then under consideration the information to hi given
could only be of the third kind, and he added that the Mandates Com-
mission was not a court of justice which coiild readily cal1 witnesses
before it. So in that case, despite the absenceofa report/rom theMandatory
Power, the Commission on this exceptional occasion decided against the
grant of oral herirings.
The decisioii taken at the Fourth Meeting of the Seventh Session iri
October, 1925. is also of particular interest. The Minutes of the Com-
mission show that the Chairman raised the question of oral representa-
tions being made to hiin. He said that representatives of various groups
had formed the habit of coming to sec him personally at Rome.
Professor Rappard evpressed the view that the Chairmari ivould
always make it clear that he was unable to make any official use of
anything unless it was formally submitted in writing. Tlie Mandates
Commission then intimatcd to the petitioners that it did not think it its
duty to receive petitioners, but it was understood that the Chaimari
would always be happy to hear what they had to Say. And perusal of
these Minutes makes it clear, in my submission, that while the Chairnail
and individual members of the Commission were nt liberty to see persons
who applied to them for an interview and hear what those persons had
to say,it was the view of the Commission that they would only do sa in
their individual capacities and not as representatives of the Commission.
They woiild not, as Professor Rappard said, have to take account of the
facts brought ta their iiotice in that way as officia1facts duly authen-
ticated.
It is evident from the siibsequent history that the Commission., or
at any rate some of its members, became dissatisfied with this practice.
They considered that in some instances they were iinable to fulfil their
duties without granting oral hearings. Accordingly, the whole question
was discussed fully by the Commission in June, 1926, at the Sixth,
Eighthand Ninth Meetings of its Ninth Session. The Commission reported
to the Council of the League of Nations that, experience having shown
that sometimes the Commission had heen unable to form a definite
opinion as to whether certain petitions were well-founded or not, the
Commission was of opiiiioii that in these cases it might appear indispen-
sable to allow the petitioners to be heard by it.TheCommission. however,
did riot desire to fornulate a definite recommendation on this suhject
beforc being informed of the views of the Council.
When this Report was presented to the Council, it invited the various
Mandatory Powers to submit their views. These observations are
referred to inparagraph 27 of the Secretary-Generai's Introductory Note.
Al1the Mandatory Powers wcre against the grant of oral hearings, and 1should like to call the attention of the Court in particular to the observa-
tions of the Belgian Government, because the Report on which the
Council acted refers specifically to these observations, and the Report
and the Resolution adopted by the Council on 7th hfarch, 1927. at its
Forty-fourth Session is probably the key to the answer to the question
before the Court.
There are only four short paragraphs of the letter of 3rd December,
1936. from the Belgian Government which call for consideratioii. The
I3elgian Government said in the first section of its letter on the hearing
of petitioners that such a procedure might even run counter to the
object which the signatories of the Covenaiit had in view when they set
iip the Mandates Commission. According to the Helgian Government-
and here 1 quote : "In actual fact, the heariiig of witnesses hy the
Mandates Commission, if thus converted into a sort of court for the
hearing of appeals against the Mandatory Power, would quickly become
in certain territories an excuse for resistance and even for revolt against
the Mandatory Power on the part of unruly elements." That is the end of
the quotation. The Belgian Governmrnt also pointed out that even in
coontries with the most liberal constitutions, Parliaments did not geri-
erally possess the right to hear petitioners submitting applications tothe
National Assembly.
In the fourth i~ararravh of the letter. it was stated that in considerine
the problem as'a Ghohoiei,t must noi be forgotten that the Courici[
which in the last resort was responsible for the supervision of the Manda-
tory States, could in special cases order such exiraordinary ineasiires of
investigation as it might think fit.
It is clear in my submission from the context of their letter that the
Belgian Government were distinguishing between oral hearings of
petitiuns on the one liaiid, and investigations initiated by the Coiiiicil
on the other.
The Council decided iii Afarch, 1937, tliat there was no occasion to
modify the procedure which had been followed by the Commission in
regard to the hearing of petitioners. That is to Say, the Council decided
against oral hearings hy the Commission. During the remainder of the
life of the League of Nations iio decision was ever taken in favour of
oral hearings by the Commission. On the contrary, on the occasions
mentioned in paragraphs 30.33 of the Secretary-General's Introductory
'iote, decisions were taken by the Jlandates Commission against the
graiit of oral hearings. For example, at its Eleventh Session in 1937 the
Commission decided-and here 1 quote :"In accordance witli a decision
of the Council, in no circumstances can a persoiial audience he grnnted
11ytlir Permanent Mandates Commissioii." 111no civcr~msLances.
And to suin up the practice of the League of Xations : in a period of
nearly twenty years there were iio oral heariiigs, iiot even in exceptioiial
cases. There was no provision for oral heariiigs, and there were several
decisions against oral hearings, although the Mandates Commission, or,
at least, some members of it, thought in some cases that they might I>e
indispensable.
It 'cannot ttierefore he said that the degree of supervision applied
uiider the MandatesSystem included oral hearings. Whether oral heariiigs
can be regarded as an exercise of siipervisioii, oras a matter of procedure,
the General Assembly would, in my suhmission, if it permitted oral
henrings. he going heyoiid thî ùegrer of supervision applied under the OR~L STATEXEST U.X. REPRESEXTATIVE (22 111 56) jr
Maridates System and beyond the procediire followed hy the Coiincil
of the League of Sations.
1 now come to the last part of my speech. 1 have iiiade some observa-
tions on the qiiestion put to the Court and about the Cornmittee on
.South \Vest .4frica. 1 have subrnitted that the position of South West
rlfrica is unique in that it is a territory under the interiiational mandate
assurned by the Union of South Africa : thatil is neither a trust temtory
iior a iion-self governing territory but :i inandated territory. 1 have
reminded the Court of the degree of su[>ervisionexercised by the Man-
dates Commission and of the ~irocedurefollowedinrelation tosul~er\.ision
hy the Council of the League of Xations.
Sow 1walit, if 1map, to relate these observations to thcqnestion before
the Court.
.\Iay I once morc reniind the Court of the relevant passage iiithe
Advisory Opinion of 1950.
It reads as follows :
"The degree of supcrrrision to be excrcised by the Geiieral Assem-
bly should not therefore esceed that which applied iinder the
Ilandates System and should conform as far as ssible to the
procedure followed in this respect by the Council oEiic 1-eagut:of
Sations."
1 have already drawii attention to the sigiiificance of tlie iisc of the
past tense in this passage.
1 now want to point out that tlic words "the degree of siipervision"
go:oirerthe whole senteiice. The degree of supervision should not cxceed
that which applied undcr the Nandates System. 'The degree of super-
vision should conlorm as faras possible to the procediire followed in this
respect by the Coiincil of the League of Xations. Then the Opinion
States that "these observations are ~~articiilarly a~>plicablcto annual
reports and petitions".
\Vhat rsactly is the meaning of thc ivords "degree of siiperi'ision"
in this passage ?These words have already been considered hy the Court.
and in their Oliinion of 1955 the Court said, on page 72 :
"The words ~-lic depree of sui~ervision' relatc tu the extcnt of
~ - ~ ~
the siihstantive sii,,er\.ision tlius'excrcised, and riot to the 1ii:miier
in which the collective will of the Geiieral Asseml>ly is esprcssed.
.\ccordin~l\~. tlicse words. if eiven their ordiiiarv and natural
meaning, &iild not hc iiiterGeted as relatiiig to procediiral
matters. The? relate to the measure and means oi s~per\~ision.
They coniprise the means crnploped by the super\.ising authority
in obtaining adequate information regarding thc admiiiistration
of the Territory and the inethods adopted for f:raliiating siich
iiiformation. maintaining working relations with the Yandatory,
and otherwise exercising iiormal and customary supervisor). fiinc-
tions. The statement that the degree of super\rision to 112 esercised
hy the General Assembly should not exceed that \\,hich was
nvnlied uiider the Nandates Svstrm means that the General tyssem-
hi; should not adopt such rnëtliods of supervision or impose such
coiiditions on the Mandatory ns are inconsistent with the trrms
of tlie Mandate or witli a pÏoper drgrre of suprrvision ine;isiired by the standard and tlie metliods alqilied I>yth(, Coiincil of the
League of Xations."
Later, on page 73, the Court said :
"It was necessary for the purposc of dcfiniiig the iiitcrnational
obligations of the Union to iridicate the limits tvithin whicli it
was subject to the exercise of supervision by the Generxl Asseinhly.
In order to indicate those liniits, it was iiecessary to deal with
the prohlem presented hy methcds of siiyervision arid the sco1)e
of their application. The General Assembly \vas competent, under
the Charter, to devise methods of sulwrvisioii :irid to regiilatc.
within prescribed limitations, the scopc of their application. Thcsc
were matters in which the obligations could be siibjccted to precise
and objective detemination, and it %v;tsneccssary to indicate
this in a clear and unequivocal manner. Tliis was done when it
\vas said in the previous Opinion that : 'The degree of supervision
to be exercised by the General r\sciiilily should iiot tliercforc
esceed that which applied iinder the Mandates System ..."
It is also to be noted tliat Judge Laiiterpacht, iii çiving his Opinion.
said on page 94-and 1 quote his words-that :
"The expression 'degree of supervisioii' lias two meariings : it
sirnifies primarilv the nie;ins of suuervision. 'l'hiis it is clear that
thr placé assignfd to periodic missions or to petitions in th^.
System of Triisteeship exceeds the degree of supervision adopted
in the Mandates System and that that means of s~ipcrvision 1)y
the United Nations cannot, witliout tlie consent of the Govern-
ment of the Union of South West Africa, be applied to the Müii-
dated Territory of South West Africa. Tliis is ;i qiiestion of mearis
of supervision iiitheir wider sense."
Consequently, it is, in my submission, clear beyoiid doiiht, froni the
passages that 1 have cited, that this Court has already expressed ;i
view from which it follows ttiat the oral hearing of petitioners must
I>eregarded as an exercise of supervision. Having regard to the views
expressed in the organs of the League of Natioris and the scrious view
there taken of the effect that such hearings might have on the exteiit
of supervision over the Mandatory Powers. it certainly could not I>e
said that the grant of oral hearings wouid be a mere matter of detail
or jiist a matter of pure procediiral machinery. It ivoiild, on the other
liand, be a serious step in the esercise of supervisiori-as 1 have already
submitted-a step that was deliberatcly and after mucli consider at'on
not taken by the Mandates Commission or the League of Nations.
But, if, contrary to the argument 1 am advaiicing, the Court felt
that it was open to them to come to the conclusion that the oral
hearing of petitioners was merely a matter of procedure, theii 1 \vould
further suggest that even on this view for the Coinmittee on Soutli
West Africa to grant oral hearings would be a grave departure from
the procedure followed by the Mandates Commission and the Coiincil
of the League of Nations and. in this connexion-and if 1 might-1
would like to draw the Court's attention to a passage in the Opinion
they gave in 19jj at page 75. There tliey said: "While, as indicated above. the statement regarding the degree
of supervision to be exercised by the General Assembly over the
Mandate of South West Africa, relates tu suhstantivc inatters.
the stateiuent requiring conformity 'as Far as possible' with the
procedure followed in the inatter of supervision hy the Council
of thc Leagiic of Nations, relates to the way in which siii~ervision
is tu he exercised, a matter which is procedural icicharacter. Thus,
both substance and procedure are dcalt with iii the passage in
«ucstioii :md I~otlirelate to tlic esercise of sunervision. Thc word
'brocedure' tliere used miist be understood & rcferring to tliose
procedural steps whereby supervision is tu he effected."
So that whethcr the granting of oral liearings is regarded as, the
esercise of supervision or as a procedural step whereby siipervision
is to he effected, one in my submission reliches the same concliision,
namely that to grant such hearings would be to go far beyond what
was donc urider thc hfaiidates System. 1 have throughout rny address
to the Court drawn attcntioii tu the frequent use by tliis Court of the
past terise in relation to the supervision csercised under the hlandates
Coniinission and the procediire followed. Even if it coiild hc said that
the langu;tge used hy tliis Court \vas capable of heing interpreted aj
meaning "might Iiave heeii applied" or "woiild have heen followed",
1 would siihmit that tliis Coiirt woiild hc boiiiid to corne to the con-
clusioii that the grarit of oral hearings would not bave been applied
by tlic hlandatcs Comiriissioti and such procedure would not have beeri
followcd hy the Council of tlie 1-eÿgiie. I say this for the following
reasoiis. In the crise to \\.hich 1 have already rnade some reference,
the case considered hy tlir: Mandates Commission in 1923. the Manda-
tory I'ower refused tu comnient on tlie re1,orts aiid information received
by the Alandates Commission. This placcd the Mandates Commission
in a very considerable rlificiilty, but despitc ttiat dificiilty. the Perma-
lient Alandates Commission iii 1923 ancl tlie Coiincil of the Leagiie in
1927 both dccided against the grant of oral hearings. It is clear, there-
fore, tliat neither the Coiincil of tlie Lcague nor the Mandates Com-
mission ivoiild have graiited oral hearings in any circiimstaiices. 1 say
tliis becausc ncithcr iiian esceptioiial case sucli as ttiat of1923, nor
cveii when it wrts thoug.it that siich henrings ivere iridispensable. did
tliey do so.
Now therc is jiist oric furtlier point to which 1 es1 to1 refer. The
inîmorandiiin submitted to tliis Coiirt by tlie United htates of Ainerica
rippcars tu attach sornc irnportaiice to the view expresscd by the
Mandates Comrnissiori tliat tlieir Chairinan :irid iii<l!vidual meinl>ers
of tlic Cominissioii miglit. at tlieir discretion, receinformation from
individuals who rrpproaclied them. It is of course one tliing not to
restrict the frecdom of individiial rnemhcrs of the Comniission to see
rtnyone they rvislicd. But it is qiiite niiother tliing to suggvt thdt
inforiiiatiori given to tliem-th<:menibers of tlie Coinmissioii-iri t-ir
individiial tirid iiriofficial capacities is to be regarded as iriforni:ition
put beforc the Alandates Coinmissii>ii.
It rcally woiild Iiavc bccii ridiciilous for tlic Couiicil aiid the Com-
niissiori to decide thrit the L'ornmissioii as 21liody woiild iiot grant
oral hearings aiid tlien to sny tlrasa Long as tlie memhers of the Com-
missiori did not sit togcthcr tlicy could (Io su prii,:ttely and iiitheir54 ORAL STATENENT U.K. REPRESENTATIVE (22 11156)
capacity as inembers of the Commission. The view that has beeii
expressed that individual meinbers of the Commissioii were free to
hear petitioners privatelyreally means that no restriction \vas imposed
on the activities of the members acting iiidividually and privately.
and that that decision of the Mandates Commission means, in my
siibmission, rio more than th$.
Xow here 1 would conclude by saying that 1 am very grateful to
the Court for having listened to me for so long, and 1 hope that what
1 have said may be of some assistance to the Court. 1 have already
said that the question put to the Coiirt is a narrow one. In one sense
it is a very important question, for if oral hearings caii be granted it
will mean that the Committee on Soiith West Africa is converted into
something iii the nature of a court. It should be borne in mind that
written petitions can be submitted direct to the Committee on South
West .\frica. There is conseqiiently nothing to prevent those who
wish to be heard orally from putting dowii on paper al1 that they wish
to say and from sending it to the Committee. So acceptance of the
argument 1have addressed to the Court does not mean that petitioners
cannot put forward petitions. They must do so-if my argumeiit is
accepted-in the way which is permitted. that is to Say, in writing
:iiid not orally.
Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, les 22 mars et 1er juin 1956, sous la présidence de M. Hackworth, Président